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  • Writer's picturePaul Peter Nicolai

USERRA Reminder

Updated: Oct 11, 2023

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 employer offers “comparable” paid administrative leave.

Several military reservists were called to active duty at various times. While on military leave, the employer did not provide the reservists with the same holiday pay and accrued benefits that it gave employees on paid administrative leave. This prompted the reservists to sue under USERRA. The employer appealed, saying the reservists were not entitled to paid administrative leave benefits because the employer declared them to be on unpaid leave and because the two types of leave were not comparable.

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 military leave.

In addition, during 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 applies to employees on military leave.

The Court said 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 rejected the employers' argument that it had declared military leave to be unpaid, noting that benefits are not dependent on how an employer characterizes the employee’s status during a period of military service. 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 various reasons, including jury duty, voting, inclement weather, promotional exams, court hearings, formal city hearings, or other appropriate reasons.

The employer 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. The Court noted that the longest administrative leaves were comparable to the longest military leave. Therefore, the two were comparable in duration.

WHY THIS IS IMPORTANT… if an employer has a policy of paid leave, it must grant paid leave to military reservists who are called up for duty. When the issue is Gray understand that courts we'll find the result most favorable to the employee.

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