Third Circuit: Military Service Leave Must Be Treated the Same as Other Leaves

APPLIES TO

All Employers with DE, NJ, and PA Employees

EFFECTIVE

August 10, 2021

QUESTIONS?

Contact HR On-Call

In Travers v. Federal Express Corp., the Third Circuit Court of Appeal said that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to pay employees for military leave if they also pay employees for other similar leaves. USERRA entitles employees to “other rights and benefits” afforded to similarly situated employees. Although “other rights and benefits” is defined as including “wages or salary for work performed,” the court stated that the definition is not restricted by the examples provided and pay for leave is not excluded. In fact, an “other” benefit could be almost anything, for example, health insurance, a bonus, or a gym membership.

There, the employee was a Navy reservist taking short-term military leave, but was not paid given that the employer’s policy was to provide unpaid military leave. The employer generally did not provide paid leave except for specific types of leave like paid sick leave and jury duty. Rather than focus on whether the types of leave were comparable, the court compared what benefit those on military leave versus non-military leave received. Moreover, the court rejected a comparison of the types of benefits provided given that USERRA did not make a specific distinction, rather referring to benefits “generally provided.”

Although USERRA does not in and of itself require paid leave, employers may need to pay for military leave if they provide other types of paid leave, such as for jury duty, sick leave, and other absences. Employers should review their leave policies with legal counsel for compliance.

Action Items

Have leave policies reviewed with legal counsel for compliance.
Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.