The Ninth Circuit recently addressed the issue of whether an employer is required to provide pay for employees taking short-term military leave when it offers other types of short-term paid leave. In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit revived a class action claiming discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for the failure to pay short-term military leave.
What is USERRA?
USERRA—a federal law applicable to both private and public employers—provides that a service member employee is entitled to the same “rights and benefits” during a military leave as similarly situated employees on non-military leave. Under USERRA , where the benefits of comparable non-military leaves differ, the employer must give the service member “the most favorable treatment” accorded to any comparable non-military leave.
In Clarkson, a class of pilots argued that their employers should be required to provide paid short-term military leave because the employers offered paid non-military leaves for short-term absences for jury duty, bereavement, and sick leave. The district court disagreed, and granted summary judgment in favor of the employers, holding that military leave and non-military leave are not comparable as a matter of law due, in part, to the length and frequency of military leaves.
The Ninth Circuit reversed. It concluded that the district court’s comparability analysis was fundamentally flawed because it compared all military leaves to other short-term non-military leave (rather than short-term military leave to other forms of short-term non-military leave). Because military leave may vary in length, with some military leaves lasting years, treating all types of military leave categorically would “render USERRA’s protections meaningless,” because “no other type of leave would look similar.”
The Ninth Circuit also reaffirmed that when determining whether a non-military leave is comparable, an employer should consider the duration, purpose, and employee’s control over the timing of each leave, with duration being the most important factor. The Clarkson decision, however, was not ultimately decided on the merits, as the Ninth Circuit concluded the question of comparability is a matter of fact that should be presented to a jury to decide.
The Ninth Circuit follows both the Third and Seventh Circuits in ruling that pay is a right and benefit under USERRA. However, in each federal appellate decision, the courts did not render a decision on the merits, and did not provide determinations as to whether certain leaves are comparable to military leaves as a matter of law.
Although the law in this area remains unsettled, we recommend employers keep these lessons in mind when drafting paid leave policies. Because courts have indicated that the comparability analysis is a factual issue, when presented with a request for military leave, employers should (1) consider the duration of the leave, (2) review other paid leaves offered by the employer, and (3) consider whether to offer pay for the military leave when it appears another leave may be comparable based on duration, purpose, and control.