Earlier this year, we wrote about the U.S. Court of Appeals for the Seventh Circuit’s decision in White v. United Airlines, Inc., in which the court concluded that paid military leave falls within the “rights and benefits” protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA). However, the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) reiterated that USERRA does not require pay for military leave in all circumstances; instead, employers are only required to pay for stretches of military leave that are “comparable” to other types of paid leaves provided by the employer. This comparability analysis depends on the facts and, according to the Department of Labor’s (DOL) implementing regulations, should focus on factors such as the duration of the leave (which is often the most significant factor), the purpose of the leave, and the ability of the employee to choose when to take the leave. Given the early stage of the litigation in White, the Seventh Circuit did not have enough information to determine whether the military leave at issue was comparable to the other forms of paid leave provided by the employer and sent the case back to the lower court for further proceedings.
More recently, a Washington federal court specifically addressed the comparability analysis in Clarkson v. Alaska Airlines Inc. et al. In Clarkson, a class of pilots claimed that the employer airlines violated USERRA when they failed to pay the pilots their full wages while on military leave, despite the fact that the airlines paid full wages to employees during other types of leave (i.e., bereavement, sickness, vacation, and jury duty leaves). The airlines asked the court to dismiss the pilots’ claims because, among other things, the military leave taken by the pilots was not comparable to the other forms of leave. In addressing this issue, the court analyzed the DOL’s comparability factors, as well as the frequency of use for each type of leave.
With regard to duration, the data provided for the pilot class indicated that jury duty, sick and bereavement leaves generally lasted three to five days, with the longest leave lasting six days. In contrast, the duration of military leaves were longer and generally lasted for nine days or more, with the longest military leaves lasting between 58 and 185 days. Similarly, the majority of pilots only used bereavement or jury duty leave once during the 10-year period for which data was provided, while the number of military leaves taken during the same period was generally between 17 and 47 leaves per pilot, with the average number of total military leave days ranging from 511 to 560 days per pilot. Finally, the average number of sick days per pilot was 33, compared to an average of 359 days of military leave per pilot during the period. Given these significant differences, the court concluded that the military leave at issue was not comparable to jury duty, sick, or bereavement leave in terms of duration and frequency.
As for the leave purpose, the court determined that a primary purpose of military leave is to allow the pilots to pursue “parallel careers” in the military and earn additional income. On the other hand, the court concluded that the purpose of jury duty is to fulfill a required duty to the courts, while the purpose of bereavement leave is to allow an employee time to grieve the death of a loved one, and the purpose of sick or vacation leave is to allow time for rest and recuperation. In the case of bereavement, sick, and vacation leaves, an additional purpose is to protect airline passengers by ensuring that pilots are mentally and physically fit to fly. Thus, the court determined that the purpose of military leave was not comparable to the purpose of other forms of airline-provided leave.
Finally, regarding the ability of the pilots to choose when to take leave, the court noted that military leave was automatically granted by the airlines while the other forms of leave were subject to the airlines’ approval. Additionally, the pilot reservists often received their military duty schedules in advance and, therefore, could work with their military units to accommodate scheduling preferences in certain cases and could schedule their airline flight schedules around their military leave schedules. However, bereavement, sick, and jury duty leave were typically needed in connection with unexpected circumstances and often had to be taken with little to no notice and with minimal opportunity for rescheduling. For these reasons, the court decided that military leave was not comparable to the airlines’ other forms of leave with respect to the ability to choose when to use leave and dismissed the pilots’ class claim for unpaid wages during military leave.
While the court’s decision in Clarkson was a win for employers, both White and Clarkson serve as important reminders to employers of the need to be mindful of USERRA’s nondiscrimination requirements and to carefully evaluate the comparability of different types of leave when determining whether such leaves will be paid or unpaid. At minimum, an employer’s assessment should always take into account the DOL factors regarding leave duration and purpose and the employee’s ability to choose when to take leave. Employers with questions regarding these factors should consult with experienced employment counsel prior to making decisions regarding payment for leave or other USERRA-related matters.