Jury Must Be Allowed to Decide if Military Leave Is Comparable to Other Leave

By Rosemarie Lally, J.D. April 18, 2023

Takeaway: Employers should exercise care in recognizing employee rights and administering benefits fairly. This is especially true when determining treatment of statutorily protected employees and ensuring they receive the same nonseniority rights and benefits accorded similarly situated employees. In this case, the employers denied paid short-term military leaves of 30 days or less to their military reservists while providing paid nonmilitary leave for jury duty, bereavement and sickness. Simply declaring that military leave is not comparable to nonmilitary leave without examining the length of leave undermines the protections offered to service members under USERRA.

​The 9th U.S. Circuit Court of Appeals recently reversed a district court's ruling in favor of two employer airlines, finding the lower court had erred in concluding that a reasonable jury could not find military leave comparable to nonmilitary leave.

A commercial airline pilot and military reservist claimed that his employers, two commercial airlines, violated provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to provide him with paid military leave. The pilot filed the class action on behalf of himself and other pilot and military reservists, alleging that the airlines violated USERRA by failing to pay pilots who took short-term military leave while paying pilots who took comparable nonmilitary leave, such as for jury duty and illness. While employed, the plaintiff and other class members each took at least one military leave of 30 days or less.

The airlines requested summary judgment, arguing that military leave is not comparable to nonmilitary leave as a matter of law. Even if the leaves were comparable, the airlines argued, pay during leave is not a benefit offered in their collective bargaining agreements to which the class members are entitled. The plaintiff did not address the second argument but merely argued that a reasonable jury could find that some or all of the nonmilitary leaves offered by the airlines are comparable to short-term military leave. The district court did not address the "pay during leave" issue and granted summary judgment to the airlines after finding that no reasonable jury could find military leave comparable to nonmilitary leave.

9th Circuit

On appeal, the 9th Circuit noted that USERRA requires employers to provide employees who take military leave with the same nonseniority rights and benefits as their colleagues who take comparable nonmilitary leave. USERRA's implementing regulation states that if benefits vary according to the type of leave, the employee must be given "the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services," the appellate court said.

In determining whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare, according to the regulation. As an example, the regulation noted, "[A] two-day funeral leave will not be comparable to an extended leave for service in the uniformed service." In addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.

The lower court erred in considering all military leave as a general category of leave, thus grouping together all military leave taken by pilots at the airlines—whether two days or two years—in assessing "the most significant comparability factor: duration," the appeals court said. Emphasizing that the plaintiff had limited his claim to military leaves of 30 days or less, the 9th Circuit held that examining the length of leave at issue is the correct approach. "Thus, the relevant question is whether such short-term leaves are comparable to the other leaves offered by the airlines," it said.

Focusing on the three factors outlined in the regulation—duration, purpose and control—that determine comparability of leave, the court found issues of material fact that would allow a reasonable jury to find in the plaintiff's favor. First, the plaintiff had presented evidence that the reservist pilots took an average of 3.10 to 4.23 days of short-term military leave, 2.66 to 2.94 days of jury leave, 2.48 to 2.77 days of bereavement leave and 2.17 to 2.52 days of sick leave between September 2013 and December 2020. This evidence "could allow a jury to infer that the duration of military leave is comparable to the duration of jury duty, bereavement or sick leave," the appeals court said. Further, the lower court's decision was flawed because it treated frequency as an integral part of the duration analysis, which undermines USERRA's use in prohibiting discrimination against people because of their service in the uniformed services.

Moreover, the district court's conclusion "that the purpose of military leave is to promote pilots' own individual interest in a parallel career makes little sense when military leave is protected by USERRA, which Congress enacted explicitly to encourage public service in the military," the 9th Circuit said in a footnote.

Finally, after looking at the evidence concerning control, the appeals court held that a reasonable jury "could find that pilots do not have significantly more control over military duty than they do over other types of leave." Although pilots can work with their military schedulers to resolve conflicts, the ability to reschedule military duty depends on many factors including the pilot's training requirements, military needs and the availability of opportunities to engage in specific kinds of training. "A jury could reasonably conclude that because of last-minute assignments, pilots do not have enough control over their schedules to prevent conflicts," the court said.

Finding that "comparability is fundamentally an issue for the jury," the appeals court reversed the grant of summary judgment and remanded the case for reconsideration. In particular, the 9th Circuit instructed the district court to consider the "pay during leave" issue, which it had initially declined to address.

Clarkson v. Alaska Airlines Inc. and Horizon Air Industries, 9th Cir., No. 21-35473 (Feb. 1, 2023), rehearing en banc denied (April 20, 2023).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.



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