Thursday, August 12, 2021

Does USERRA require employers to pay reservists for military leave?

Does USERRA require employers to pay reservists for military leave? Get ready for it folks... cue the
canned applause... he's about to drop his catch phrase... IT DEPENDS! 

In Travers v. Federal Express Corp. (Third Circuit), the employee served in the U.S. Navy and the Naval Reserve. He sometimes took leave from work to fulfill his reserve duties, but FedEx did not pay him for this leave. FedEx, however, does pay its employees who miss work for other reasons, including jury duty, illness, and bereavement. 

What does the statute say? If you love statutory interpretation, a la Scalia and Garner's Reading Law, then this is the case for you! USERRA states:

[A] person who is absent from a position of employment by reason of service in the uniformed services shall be . . . . entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service. 
Not official use.
38 U.S.C. § 4316(b)(1). 

So, USERRA does not require employers to pay for military leave per se, but it does entitle employees who are on military leave to the same "rights and benefits" as other similarly situated employees. 

Ultimately, the Third Circuit held:
FedEx allegedly pays employees for some leave but declines to compensate Travers for leave taken to serve his country. That states a claim under USERRA, a statute with a long history of protecting the jobs and accompanying benefits of Americans called to our common defense. Best understood, USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.

Although I stand by my initial "it depends" response, I suspect that the vast majority of employers "pay[] employees for some leave." Under this ruling, USERRA would then require covered employers to pay for military leave as well. Notably, the Court did not address how much paid leave would be required. 

No comments:

Post a Comment