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Does USERRA Provide For Paid Leave?

by | Apr 7, 2022 | Employment Law, Federal Law Update, Military Status Discrimination |

​What laws protect military members in civilian jobs?

Best Civilian Employment Lawyer Answer: The federal Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provides certain rights to military service members and veterans in their civil jobs, including protecting them from employment discrimination, protecting their job while serving, continuation of health insurance coverage for themself and their families while actively serving, and other rights. The intent behind USERRA is to (1) encourage noncareer military service by “eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service”; (2) providing for the prompt reemployment of those who engage in noncareer military service to reduce problems in returning from service; and (3) prohibit military service based employment discrimination. (Best Law Read: USERRA: What Position Should I Get After Returning From Active Duty?; What Are My USERRA Reinstatement Rights?; Can I Lose A Job Because of My Military Service?).

Should I be paid during short term military leave?

Best USERRA Attorney Answer: That depends. While USERRA does not automatically contain paid time off requirements for military service members, it does require continued wages if the employer offers the same benefits to employees taking leave for other reasons.

A decision issued by the United States District Court, N.D. Georgia, Atlanta Division on March 29, 2022 directly addresses this issue and provides a good example. In Haley v. Delta Airlines, Inc., Defendant., No. 1:21-CV-1076-TCB, 2022 WL 950891, (N.D. Ga. Mar. 29, 2022), plaintiffs Patrick Haley and Randal Reep brought a class action lawsuit against Delta for allegedly violating USERRA. Both plaintiffs are former Delta employees. Haley served in the Air Force Reserve until October 2020. Reep still serves in the Florida Air National Guard. At various points while employed by Delta, Haley and Reep used short-term military leave (30 days or less) to comply with their military obligations.

According to the lawsuit, Delta pays employees their normal wages for brief leaves related to non-military reasons, including for sick leave, bereavement leave, and jury duty. But Delta offer no paid leave for short term military leave. This distinction is very important because USERRA expressly mandates that employees taking military leave from their civilian job are “deemed to be on furlough or leave of absence while performing such service, and; … entitled to such other rights and benefits not determined by seniority as are generally provided by the employer” to similarly situated employees who take leave. 38 U.S.C. § 4316(b)(1)(A)–(B). As the Fourth District Court of Appeals recently and simply explained, USERRA “adopts a simple formula: employees who take military leave from their jobs must receive the same ‘rights and benefits’ provided to employees absent for other reasons. … USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.” Travers v. Fed. Express Corp., 8 F.4th 198, 202-09 (3d Cir. 2021); see also White v. United Airlines, Inc., 987 F.3d 616, 619, 623 (7th Cir. 2021).

After filing the lawsuit, Delta moved to dismiss, but the District Court quickly denied this motion, rejected Delta’s arguments, and let the case move forward: “the language of the statute requires employees on military leave to be provided only those rights and benefits (such as pay) to which employees on comparable, non-military absences are entitled. In other words, if paid leave is not provided to similarly situated employees on non-military leave, it is not due the employee on military leave.”

Having lost the motion to dismiss, this case will now move into discovery. Our military service attorneys will closely monitor the case and keep you posted.

What should I do if I was not paid for short term military leave?

Best Military Employment Lawyer Answer: If your civilian employer failed to pay you for your short term leave while serving in the Army, Navy, Air Force, Marines or National Guard,you might need a qualified and knowledgeable employment lawyer. You should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?)  Call our Cleveland, Cincinnati, Columbus, Toledo, Boardman, and Detroit attorneys right now. If you have been wrongfully terminated or fired for any reason within one year of returning from serving in the United States Armed Forces, you may have a claim. Do not wait. You have protected us. Let us protect you. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “What are my return to work rights after I complete my service in the U.S. military (Army, Navy, Air Force, Marines or National Guard)?”, “What if the company won’t continue my health care while I’m called up to active duty?” “Can I be denied a promotion because I am subject to being called to active duty?” or “Can I sue if I was fired within a year of returning from active military service (Army, Navy, Air Force, Marines or National Guard)? What should I do?” — It would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.