A new ruling out of the Seventh Circuit may mean employers are required to pay employees for military leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This is a matter of first impression in the Federal circuits.
USERRA states that employees are “entitled to such other rights and benefits…as are generally provided by the employer,” and defines “rights and benefits” to include paid leave. In White v. United Airlines, the appellate court interpreted the language of the statute to impose a duty on employers to pay employees while they are out on military leave if the employer pays for “comparable” leaves in non-military situations. Prior to this decision, it was understood that USERRA leave was unpaid.
Whether leave is comparable or not is a matter of interpretation, and the Court directed employers to look to the Department of Labor’s (DOL) guidelines on the topic. The key considerations are the duration and purpose of the leave, and whether the employee has any choice about when to take the leave.
If you are currently taking USERRA leave, or you plan to take one soon, contact us for a free, 30-minute consultation with an employment attorney to see if you are entitled to pay.