2 class action lawsuits challenge company military leave policies

The best way now to think about military leave under the Uniformed Services Employment and Reemployment Rights Act is this: If you provide paid leave for almost any reason to nonmilitary employees, you’d better provide comparable paid leave to your service-member employees who need leave due to military obligations.

This is the conclusion two federal trial courts reached when denying employers’ motions to dismiss employees’ class action lawsuits challenging short-term paid-leave policies.

The meaning of “other rights and benefits”

Both cases have similar facts. Employees who served in the military took unpaid short-term leave for their military service. Both employers had short-term leave policies of varying lengths under which nonmilitary employees who took jury-duty leave, bereavement leave and sick leave were paid.

Servicemember employees sued on behalf of themselves and other similarly situated employees’, alleging their employers violated USERRA by granting short-term paid leave to nonmilitary employees, but not to them. The basis of their lawsuits is USERRA § 4303(2), which defines phrase “rights or benefits” as:

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.

Their employers, emphasizing the parenthetical phrase “including wages or salary for work performed,” raised a range of defenses in their motions to dismiss, including:

• Nothing in USERRA supports requiring employers to pay employees who don’t work.
• Military leave wasn’t comparable to those other forms of short-term paid leave.
• USERRA doesn’t require preferential treatment for military reservists.
• USERRA protects only existing rights and benefits. It doesn’t require the creation of new ones.

None of these defenses held any water for the trial courts. Both ruled the plaintiffs plausibly alleged their employers violated USERRA § 4303(2) and both came to same two conclusions:

• USERRA is remedial legislation, so it must be interpreted broadly in favor of its military beneficiaries.
• The employers’ attempt to shoehorn employees’ complaint into whether USERRA guarantees paid leave or paid military leave is too narrow. The proper issue, according to both courts, is whether USERRA allows plaintiffs to allege their employers extend a right and benefit in the form of pay to a group of employees who miss work for nonmilitary reasons, while denying pay to the group of employees who are absent for military service.

While the answer in both cases seems to be yes, these cases are at a very early stage. One trial court suggested the employer could prevail in a motion for summary judgment, which typically occurs later in a lawsuit.

The cases are Baker v. United Parcel Service, Inc. and Haley v. Delta Airlines, Inc.

The takeaway

One trial court suggested that to determine whether your short-term leave policies are comparable, sort your employees into two groups: employees absent from work due to service in the uniformed services and employees having similar seniority, status and pay who are taking a short-term leave of absence.

Then compare the pay polices between groups. If there’s a difference, you may have a USERRA problem on your hands.

Summer is service time

And while you’re at it, don’t forget these payroll items for service-member employees who normally serve their two weeks in the military:

• Withhold taxes from the value of time donated to service-member employees by co-workers.
• Notify the state child-support disbursement unit if child-support withholding decreases because servicemember employees skip a pay period.
• Employers’ pension contributions continue during service-member employees’ absence; employees must be allowed to make up contributions when they return to work.