How courts may make paid military leave as common as paid sick leave

How courts may make paid military leave as common as paid sick leave


A legal battle is unfolding over paid military leave in courtrooms across the country, as a new wave of class-action lawsuits and court rulings raises a question: are National Guard and Reserve troops entitled to paid short-term military leave under federal law?

Reserve component troops are suing their employers across the country, arguing that the courts should interpret the Uniformed Services Employment and Reemployment Rights Act of 1994 to include paid leave as one of the “rights and benefits” protected under the law commonly known as USERRA. Their argument: short-term paid military leave is comparable to other forms of short-term paid leave like jury duty leave or sick leave, therefore employers who offer other paid leaves are violating USERRA if they don’t offer paid short-term military leave of comparable length and compensation to the other types of leave.

So far, the argument is seeing some success in federal court. That is partially due to how strong USERRA’s protections are, said Allen Shoikhetbrod, a partner at Tully Rinckey who specializes in federal employment law.

“USERRA…is very service member friendly,” said Shoikhetbrod in an interview with Military Times. “When you compare it to Title XII of the Civil Rights Act [or] the Americans With Disabilities Act, it is really in favor of the service member. And [USERRA’s] definition of benefits of employment and seniority rights continues to be expanded on.”

Some employers have opted to settle these cases and change their military leave policies rather than have a costly litigation fight. Walmart settled a class action suit in January, offering up to $14 million to approximately 7,000 Guard and Reserve troops who were employed by the corporation. The retailer also updated its HR policies to include short-term paid military leaves of less than four days as part of the settlement agreement, in which Walmart did not admit fault.

Where do the courts stand?

Two suits on the topic of paid leave have made it to the federal circuit court level in recent months. Circuit courts are one level below the U.S. Supreme Court.

One case, White v. United Airlines, is a class action led by Eric White, a United pilot who claimed that the airline should have given him full pay and retirement credit for periods of short-term military leave with the Air Force Reserve since his hiring in 2005.

Judge Charles Norgle of the Northern District of Illinois initially ruled against White in 2019 and dismissed the suit, saying in his opinion, “It is contrary to the express language of [USERRA] to hold that a business is required to pay a reservist wages for time not worked.” But in February, the Seventh Circuit reversed the decision on appeal. The Seventh Circuit handles federal appeals for Illinois, Indiana, and Wisconsin.

“We find that paid leave falls within the set of ‘rights and benefits’ defined by [USERRA], and so we reverse” the lower court’s decision, said Judge Diane Wood, who wrote the opinion representing the panel.

Wood sent the case back to the Norgle of the Northern District of Illinois to determine whether paid short-term military leave is truly comparable to other forms of leave offered by United, though the airline could still appeal to the Supreme Court.

The Reserve Organization of America, which filed a briefing in support of White, celebrated the Seventh Circuit’s ruling and subsequent denial of United’s request to rehear the case in its April membership newsletter. The reserve component advocacy group described it as “great news as it is the case that ROA filed an amicus brief on behalf of White, an ROA member!”

In another case currently on appeal to the Third Circuit, Travers v. Federal Express, Gerard Travers alleged that FedEx should have paid him for periods of short-term military leave taken between 2006 and 2010 due to his service in the Navy Reserve. The Third Circuit oversees appeals for Pennsylvania, New Jersey, Delaware, and the Virgin Islands.

The Eastern District of Pennsylvania dismissed Travers’ suit last year, with Judge Mark Kearny ruling.

“We deeply appreciate Mr. Travers’ service,” said Kearny in his opinion. “But Congress’s words [in USERRA] do not include paying Mr. Travers his regular wages while he is on short term military leave.”

Travers and his attorneys appealed the district court’s ruling to the Third Circuit, and oral arguments took place on March 16, after the Seventh Circuit had made its ruling in White v. United Airlines. In response to pointed questions from the Third Circuit panel, one of Travers’ attorneys, Jonathan Taylor, leaned heavily on the Seventh Circuit’s rationale in the White case.

But the Third Circuit is not bound to follow the Seventh Circuit’s logic, and there is a significant chance they could disagree with the Seventh Circuit and uphold the dismissal, according to Shoikhetbrod, the employment law expert.

“They’re not mandated to follow another Circuit’s decision,” he said. “So that’s where there’s potential for circuit splits.”

Will the Supreme Court or Congress step in?

If federal circuit courts were to split on the issue, the Supreme Court is likely to take up the issue, explained Shoikhetbrod. And such a split is becoming likely as more cases reach the circuit level — Shoikhetbrod pointed to Huntsman v. Southwest Airlines as a similar class action suit likely to reach the Ninth Circuit in the coming months.

“It’s very likely there’s going to be a petition for a writ of certoriari in the United States Supreme Court,” said Shoikhetbrod. “And the Supreme Court tends to accept petitions where there are circuit splits. So there is a strong likelihood that eventually one of these cases will end up at the Supreme Court, probably within the next couple of years, if not sooner.”

It’s unclear how soon a circuit court split may emerge, though. The Third Circuit will likely take several more months to decide Travers, and it could be more than a year until Huntsman or another similar case makes it to another circuit.

Employers, attorneys, and business associations are noticing the pattern, though, and some are not waiting for an adverse ruling to begin updating their policies and limit their liability. Many employers facing similar cases are opting to settle them, said Shoikhetbrod, including Walmart’s settlement earlier this year.

“Employers — particularly those in Illinois, Indiana, and Wisconsin — should revisit their military leave policies in light of the Seventh Circuit’s holding,” warned attorney Scott Allen in a JDSupra post.

“All employers should pay attention to this ruling because class actions and other suits addressing the issue are pending in courts nationwide,” said Epstein Becker & Green lawyers in another post.

Congress may also preempt the courts by pushing a legislative fix that clarifies USERRA in relation to paid leave, added Shoikhetbrod. “I think eventually Congress is going to take up this issue, and probably make necessary amendments to clarify their position.” But there isn’t anything in the legislative process yet.

Regardless of where, when, or how the debate is resolved, though, Guard troops called to most forms of State Active Duty will be left out — USERRA applies only to federal military duty and 14-day or longer periods of SAD linked to a presidentially-declared national emergency or a major disaster declaration under the Stafford Act.

Davis Winkie, the author of this article, is an associate member of the Reserve Organization of America.





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About the Author

Anthony Barnett
Anthony is the author of the Science & Technology section of ANH.