7th Circuit: Employers May be Required to Pay for USERRA Leave

In White v. United Airlines, Inc., the Seventh Circuit Court of Appeal stated that employers must provide paid leave for USERRA leave to the extent similar nonmilitary leave is paid by the employer. The Uniformed Services Employment and Reemployment Rights Act (USERRA), in part, protects workers from discrimination based on their military status. More specifically here, USERRA requires that an employee on leave from work while performing their military service be entitled to the same rights and benefits as the employer provides to other employees on leave.

The court stated, based on statutory history and interpretation, that USERRA leave must be paid where military leave is comparable in duration to nonmilitary leaves of absence. The Department of Labor’s regulations list three factors that should be considered in the comparability analysis. Among these, “the duration of the leave may be the most significant factor to compare,” but courts should also consider “the purpose of the leave” and “the ability of the employee to choose when to take the leave.”

Here, White occasionally took a few days of unpaid leave at a time as part of his status as a reservist with the United States Air Force. The court noted that United Airlines’ pilots receive pay when they take other short-term leaves of absence, such as jury duty or sick leave. United also maintains a profit-sharing plan for its pilots. Under the plan, pilots are credited with a share of the company’s profit based on the wages they earn over the relevant period. Based on the court’s ruling, these benefits may directly impact the employee’s USERRA rights. However, because of the limited information available, the court said that a further factual analysis was required to determine if the employer-paid jury duty and sick leave are sufficiently similar to periodic short-term leave under USERRA to require the employer to pay for White’s USERRA leave.

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