In Myrick v City of Hoover, the U.S. Court of Appeals for the 11th Circuit has ruled that military reservists must be treated as if they were on paid leave for purposes of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) because the City offers “comparable” paid administrative leave.
Facts. Several military reservists who worked for the City were called to active duty at various times. While on military leave, the City did not provide the reservists with the same holiday pay and accrued benefits that it gave employees on paid administrative leave. This disparate treatment prompted the reservists to sue the City under USERRA. The district court ruled in favor of the reservists and the City appealed, saying that the reservists were not entitled to paid administrative leave benefits because the City declared them to be on “unpaid” leave and because the two types of leave were not comparable.
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 military service, the reservist is deemed to be on furlough or leave of absence from the employer. In this status, the reservist is entitled to the non-seniority rights and benefits available to employees on other, “comparable” types of leave. If the employer provides different rights and benefits for various types of leave, the most favorable treatment accorded under any comparable type of leave would apply to employees on military leave.
Court of Appeals. The Court began its analysis by noting that, under USERRA, when two plausible interpretations of USERRA exist—one denying benefits, the other protecting the reservist—it must choose the interpretation that protects the reservist.
The Court then quickly rejected the City’s first argument that it had declared military leave to be unpaid leave by noting that benefits are “not dependent on how an employer characterizes the employee’s status during a period of [military] service.” Rather than accepting an employer’s conclusion, the Court must determine whether other types of leave are comparable. This involves three factors: (1) the duration of the leave, (2) the purpose of the leave, and (3) the ability of employees to choose when to take the leave.
It then noted that paid administrative leave is granted for a variety of reasons, including jury duty, voting, inclement weather, promotional exams, court hearings, formal city hearings, “or other appropriate reasons….The [City] utilized that final, catch-all category to place employees on paid administrative leave while they are under internal investigation.”
The City argued that the average duration of military leave was at least three times greater than the average for paid administrative leave, and, therefore, the two were not comparable. However, the Court noted that the longest administrative leaves were comparable to the longest instances of military leave. Therefore, the two were comparable as to duration.
The Court then ruled that the two types of leave were comparable as to purpose. Both were required to comply with various aspects of the law because, among other things, administrative leave was sometimes required during internal investigations. Moreover, both forms of leave are intended to shield employees from unnecessary hardship.
Finally the two forms of leave are also comparable in terms of control. Military reservists do not control when they will be summoned for active-duty service, just as nonmilitary employees do not control when a legal authority will launch an investigation. Hence, employees taking military leave have a similar lack of control as those on investigative administrative leave.
Therefore, the Court upheld the lower court’s decision and ruled in favor of the reservists.