In a “matter of first impression,” the Ninth Circuit Court of Appeals recently held in Clarkson v. Alaska Airlines, Inc. (No. 21-35473, Feb. 1, 2023) that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) requires employers to pay servicemembers while on military leave if the employer pays for other leaves of absence that are comparable in “duration, purpose, and control.”
The Clarkson plaintiffs—commercial pilots who also served in the military reserve—sued their employer airlines, seeking pay for the time spent on short-term military reserve duty. They argued that their short leaves of absence to serve in the military, which were unpaid, were comparable to jury duty, sick leave, or bereavement leave, which were paid. The pilots claimed this was illegal under 38 U.S.C. § 4316(b)(1), which states that servicemembers are entitled to the same benefits while on military leave “as are generally provided by the employer” to those not on military leave. Similarly, regulations published by the Department of Labor provide that military leave must be given “the most favorable treatment accorded to any comparable form of leave.” 20 CFR § 1002.150(b).
The District Court had granted summary judgment for the employer airlines, noting that military leave, which can last for years, was not comparable to any other paid leave offered by the employers. But the Ninth Circuit disagreed, finding that the pilots had not asked for pay during lengthy deployments, but only during short leaves of absence necessitated by their military service. These short-term leaves, the Ninth Circuit reasoned, could be comparable to sick, bereavement, or jury duty leave, which the airlines paid. The Court remanded the case to the trial court, so that a jury could determine if the pilots’ military leave was comparable to any other paid leave offered by the airlines.
Clarkson presents an interesting dilemma for employers who do not pay for military leave and raises a host of issues that will be developed as this case continues its way back through the courts. For now, employers should compare their military leave policy with their sick, bereavement, and jury duty leave policies to determine whether adjustments are in order. As the Ninth Circuit noted:
The Airlines are only required to provide equal treatment, not preferential treatment, to employees taking military leave. Thus, if the employer only provides three days of paid bereavement leave per year or only offers the difference in pay between the employee’s salary and the compensation for jury duty … that is all the employer would be required to provide to the servicemember.
If you would like to explore whether your policies should be amended, please contact David Barton, at david@burnsbarton.com or your favorite BurnsBarton attorney.
