Are there fewer veterans today than in the past?
Yes. The total share of the U.S. population with military experience is declining in recent decades.
According to the Pew Research Center: In 2018, less than 7% of U.S. adults were veterans, down from 18% in 1980. This drop coincides with decreases in active-duty personnel. In the last 50 years, the number of active-duty persons has dropped significantly. Active duty servicemember dropped from 3.5 million in 1968 to about 1.4 million (or less than 1% of all U.S. adults).
With less veterans in the workforce, employers are increasingly ignorant of veteran’s rights and privileges. This ignorance leads to a higher likelihood of discrimination faced by veterans. Thankfully, laws protecting servicemembers in civilian employment have never been stronger.
What laws protect servicemembers in civilian employment?
In the 20th Century, Congress passed laws that guaranteed servicemembers who took leave from a civilian job for military service could return to that job without losing “seniority, status, or pay.” STSA, Pub. L. No. 783, § 8(b), 54 Stat. 885, 890; VRRA, Pub. L. No. 93-508, § 2021(a), 88 Stat. 1578, 1595.
Most recently, Congress continued its tradition of recognizing the sacrifice and dedication of servicemembers in 1994 by enacting the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
Building upon those previous protections, USERRA serves three primary purposes:
- to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;
- to minimize disruption by providing for the prompt reemployment of servicemembers upon their completion of such service; and
- to prohibit discrimination against persons because of their service in the uniformed services. See 38 U.S.C. § 4301.
In summary, USERRA acknowledges that servicemembers should be rewarded for their service, not punished.
Does USERRA cover reservists and guardsmen?
Section 4316(b)(1) expanded non-seniority employment benefits for servicemembers, including reservists and Guardsmen, who must take leave from civilian jobs to perform their military duties. Under § 4316(b)(1), “a person who is absent from a position of employment by reason of service in the uniformed services” shall be “deemed to be on furlough or leave of absence,” and shall be “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer” to other employees on non-military furloughs or leaves of absence. 38 U.S.C. § 4316(b)(1).
Does my employer have to pay me during short term military leave?
Like most legal questions, the answer is “it depends.”
USERRA requires employers to provide employees who take military leave with the same non-seniority rights and benefits as their colleagues who take comparable non-military leaves. See 38 U.S.C. § 4316(b)(1); 20 C.F.R. § 1002.150(a). (Best Law Read: Does USERRA Provide For Paid Leave?) In other words, USERRA does not necessarily require paid time off for military service members, but it does require them to pay wages if the employer offers the comparable benefits to employees taking time off for other reasons.
A recent decision by the United States Ninth Circuit addressed this issue in Clarkson v. Alaska Airlines, Inc., et al. According to the lawsuit, Casey Clarkson was a commercial airline pilot and military reservist. Clarkson claimed that his employers, Alaska Airlines and Horizon Air Industries, failed to follow the USERRA provision about “same non-seniority rights and benefits.” Specifically, Clarkson argued that his employers provided paid leave for non-military leaves including jury duty, bereavement, and sick leave. Thus, according to USERRA, Clerkson’s employers were also required to pay employees during short-term military leaves. However, the district court disagreed. The district court granted summary judgment to his employers. In the ruling, the district court concluded that, as a matter of law, military leave is not comparable to any other form of leave offered by the employers. Fortunately for Clarkson, the Ninth Circuit reversed the decision.
As the Ninth Circuit pointed out, Congress codified USERRA § 4316(b)(1), the provision at issue here. As the House Report on the bill explained:
The Committee intends to affirm … that, to the extent the employer policy or practice varies among various types of non-military leaves of absence, the most favorable treatment accorded any particular leave would also be accorded the military leave, regardless of whether the non-military leave is paid or unpaid. (emphasis added).
The Ninth Circuit focused on the three comparability factors outlined in the Department of Labor’s (DOL) regulation: (1) duration of leave, (2) purpose of leave, and (3) ability of the employee to choose when to take the leave (also referred to as “control”). 20 C.F.R. § 1002.150(b). Moreover, the Ninth Circuit reversed the district courts determination that on each factor there were no genuine issues of material fact. Instead, the Ninth Circuit showed that the relevant question is whether such short-term leaves are comparable to the other leaves offered by the employer.
In this case, the Ninth Circuit determined that short-term military leave was comparable to other benefits offered by Clarkson’s employers. Thus, Clarkson was entitled to the same benefits of paid time off for his military service. A clear win for the dutiful soldier.
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 military, 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 Ohio, North Carolina, Michigan, and Kentucky attorneys right now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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