USERRA May Require Paid Leave

On May 21, 2024, the U.S. Court of Appeals for the 3rd Circuit held that short-term military leave may be comparable to jury duty leave and bereavement leave and therefore may be subject to payment if the employer compensates jury duty and bereavement leave. The 3rd Circuit has jurisdiction over Delaware, New Jersey and Pennsylvania. However, the case may be cited as persuasive authority in other jurisdictions, so employers everywhere, including in California, should pay attention.

The opinion was issued in Scanlan v. American Airlines, Inc., reversing a lower court’s summary judgment ruling in favor of the airline and reinstating and remanding the plaintiff pilots’ class action suit for further proceedings. The plaintiffs claim their employer, American Airlines, violated The Uniformed Services Employee and Reemployment Rights Act (USERRA) by denying paid leave for short-term military absences (of no more than 16 days) from Jan. 1, 2013, through Oct. 31, 2021.

USERRA

USERRA provides job protections for U.S. service members returning from military leave, including granting them the same rights and benefits as employees having similar seniority, status and pay who are on furlough or leave of absence. As the Scanlan court noted, the 3rd Circuit already held in Travers v. Fed. Express Corp. that “rights and benefits” include pay while on leave. The 7th and 9th Circuits have issued similar decisions. The USERRA regulations clarify that employees on military leave are entitled to the most favorable treatment accorded to any comparable form of leave. Factors to consider in determining whether leaves are comparable include the duration of the leave, the purpose of the leave and the ability of the employee to choose when to take the leave.

Scanlan v. American Airlines—Comparability

The district court had held that no reasonable jury could find that the leaves were comparable. First, on the duration prong of the analysis, the lower court found that, despite the similarity in the lengths of the individual instances of the leaves, military leave recurred on a regular basis over a number of years, while the other forms of leave were short-term and sporadic.

The 3rd Circuit reversed, holding that it was up to a jury to decide whether the frequency of leaves should be considered and whether the purpose and control factors were comparable, given conflicting evidence presented by the parties.

Takeaway: If you offer short-duration paid leaves such as jury duty and bereavement leave, which are not required in California, you may be required to compensate short-duration military service leaves. Employers are encouraged to consult legal counsel as this issue comes up. We will keep you updated if there is further development around this ruling. For additional guidance, CEA members may download our USERRA/Military Service Leave Tool kit on our Tool Kits page.