The U.S. Court of Appeals for the Ninth Circuit, in Clarkson v. Alaska Airlines, has determined that a jury must decide whether an employer offered “comparable,” non-military, paid leave, and was therefore obligated to pay reservists when they went on military leave.
Facts. An airline pilot, who was also a military reservist, filed a class action lawsuit against his employer, claiming that it was required, under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) to continue employees’ salary when they went on short-term military leave, because it continued to pay employees who took other, comparable, non-military types of leave, including jury duty, bereavement, and sick leave.
The district court determined there were no genuine issues of material fact and concluded that the military leave is not comparable to any other leave as a matter of law. It therefore ruled in favor of the employer, rather than allowing a jury to determine if the employer was liable.
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. Upon an employee’s request, 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 on military leave.
Appeals Court. The Appeals Court began its review by stating that “[to] determine whether types of leave are comparable, the duration of the leave must be considered, as well as the purpose of the leave and the ability of the employee to choose when to take the leave.”
It ruled that the district court erred by comparing all military leaves, rather than just the short-term military leaves at issue here, with non-military leaves. It then noted that “comparability is a question of fact.” It is, therefore, a question for the jury unless the facts of a case suggest that no reasonable jury could see enough commonality for a meaningful comparison. “The judge’s function is not…to weigh the evidence and determine the truth of the matter[,] but to determine whether there is a genuine issue for trial.” In this case, there were genuine issues of material fact as to each factor that, when viewed in the light most favorable to the employee, would allow a reasonable jury to find in the employee’s favor.
The Appeals Court therefore reversed the lower court’s decision and instructed it to allow a jury to make the determination on comparability.