Employees who take short-term military leaves may be entitled to compensation from their employers during those leaves, according to a decision by the U.S. Court of Appeals for the 9th Circuit. The Feb. 1, 2023, opinion in Clarkson v. Alaska Airlines Inc. held that the Uniformed Services Employee and Reemployment Rights Act (USERRA) requires employers to provide paid military leave to the same extent they provide paid leave for other comparable absences.
In reversing summary judgment, the 9th Circuit remanded the case for adjudication on the issue of whether short military leaves are comparable with other paid leaves provided by the employer. The opinion follows cases from the 7th and 3rd Circuits similarly recognizing employee rights to paid military leave under USERRA.
USERRA states that employees absent from work due to service in the uniformed services are entitled to the rights and benefits generally provided to employees having similar seniority, status and pay who are on furlough or leave of absence. Under USERRA regulations, if the benefits vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave. The regulations provide that to determine whether types of leave are comparable, the following factors must be considered:
Clarkson, a pilot with Alaskan Airlines and a military reservist, sued the airline, arguing that because the airline provided paid jury duty, bereavement and sick leave, it was also required to provide paid leave for short-term (30 days or less) absences for military service under USERRA. The lower court granted summary judgment for the airline after comparing the duration of all military leaves (which can last for years) with the duration of the nonmilitary leaves provided by the employer, finding that no reasonable jury could conclude they were comparable.
The 9th Circuit reversed, holding that USERRA requires a comparison of the employer’s nonmilitary leaves with only short-term military leaves, not with all military leaves. The appeals court also found that the lower court erred in comparing the frequency of military with nonmilitary leaves and in its comparisons of the purpose of the military versus nonmilitary leaves and employees’ ability to control the leaves.
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