The Uniformed Services Employee and Reemployment Rights Act (USERRA) provides employees with a variety of leave entitlements for absences related to military service. The law does not explicitly require paying employees out on military leave. However, earlier this year, we wrote that employers (particularly those in Illinois, Indiana and Wisconsin) should revisit their military leave policies because the U.S. Court of Appeals for the Seventh Circuit had ruled that failure to provide paid military leave, while simultaneously offering paid time off for other absences (such as for jury duty or sick leave), might in fact violate USERRA.
More recently, another decision out of the Third U.S. Circuit Court of Appeals — which covers Delaware, New Jersey and Pennsylvania — reached a similar conclusion. The Court stated that USERRA “does not allow employers to treat service members differently by paying employees for some kinds of leave while exempting military service.”
Now that at least two decisions have been issued, similar rulings and interpretations are likely to be issued in other jurisdictions. Therefore, employers throughout the country should revisit their military leave policies in order to ensure compliance.
On a positive note, however, also as we previously wrote, employers are only required to pay for stretches of military leave that are “comparable” to other types of paid leaves provided by the employer. This comparability analysis depends on the facts and should focus on factors such as the duration of the leave (which is often the most significant factor), the purpose of the leave, and the ability of the employee to choose when to take the leave.