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Employer’s Leave Policies Required It to Provide Paid Military Leave

On Behalf of | Aug 17, 2021 |

The Third Circuit Court of Appeals has ruled, in Travers v. Federal Express, that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) requires employers to provide paid leave to employees who take military leave when the employer provides paid leave for various other forms of leave.

Facts. An employee took military leave from his job to fulfill his obligations as a reservist. He requested to be granted paid leave. The employer refused, stating that it had no policy permitting paid military leave. The employee sued, claiming that his USERRA rights had been violated. After losing in the lower court, the employee appealed.

Law. Employment and benefit rights of reservists who are called to active duty are governed by USERRA. Under USERRA, employers cannot discriminate or retaliate against service members because of past, current, or future military service.

An employer does not have to provide paid military leave. Upon an employee’s request, however, an employer must allow the employee to use any accrued vacation, annual, or similar paid leave during a military leave.

In addition, during a period of service, the employee is deemed to be on furlough or leave of absence from the employer. In this status, the employee is entitled to the non-seniority rights and benefits available to employees on other, comparable, types of leaves. If the employer provides different rights and benefits for various types of leave, the most favorable treatment accorded to any comparable type of leave would apply to employees in the military.

Third Circuit. The employer argued that it did not have to pay the employee for leave time because it did not provide for paid military leave and that its other types of paid leave were not comparable and, therefore, could not be applied to this situation.

The court first noted that the employer pays employees who miss work for other reasons, such as jury duty, illness, and bereavement.

The court next stated that, under USERRA, the terms “benefit,” “benefit of employment”, or “rights and benefits” mean the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice, and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

Finally, the court observed that under this broad application of the terms, military leave is comparable to the other types of leave for which the employer granted paid leave. Therefore, the court concluded that the employee was entitled to the benefit of paid leave under these circumstances.

In ruling in favor of the employee, the court stated that the employer had violated the law because “USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.”