February 8, 2023

Volume XIII, Number 39

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February 07, 2023

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February 06, 2023

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O Say Can You See? Federal Courts Say Military Members Entitled to Paid Leave

This week, the federal appellate court in Pennsylvania ruled that workers who take leave to serve in the military must be paid for that time if their employers offer other forms of comparable short-term paid leave. The Third Circuit Court of Appeals held that paid leave is a “right and benefit” under the Uniformed Services Employment and Reemployment Rights Act (USERRA). That is, if an employer provides paid leave for some reasons (such as jury duty, bereavement, and illness), then it must also pay servicemembers who are on military leave

The decision was issued in a case brought by a Navy reservist who sued his employer seeking regular wages for the time he spent on military leave. He claimed that his employer violated USERRA—the federal law granting job protections to those who serve in the military—by providing paid leave to employees for various reasons but not for military leave. The Court sided with the reservist, concluding that USERRA “does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.”  

The decision in the Third Circuit case is similar to a Seventh Circuit case from February in which a United Airlines pilot who served on reserve duty for the U.S. Air Force brought a class action lawsuit on behalf of himself and other pilots who took periodic unpaid leaves of absence to attend military training. 

These decisions are only legally binding in Pennsylvania, New Jersey, Delaware, Illinois, Indiana, and Wisconsin. However, with consistent decisions by these two influential federal appellate courts, it is likely that courts nationwide will rule similarly in the inevitable future cases. 

We are recommending that all employers begin reviewing their military leave policies and assess the benefits being provided to employees. That is, if you pay employees for some kinds of absences, you’ll likely need to pay for military leave as well. 

©2023 Roetzel & AndressNational Law Review, Volume XI, Number 225
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About this Author

Monica L. Frantz Attorney Labor Employment Law Roetzel Andress Cleveland
Associate

Monica focuses her practice on labor and employment law. She counsels private and public sector employers on all aspects of workplace compliance and represents employers before state and federal courts and administrative agencies in labor and employment disputes.

Monica also provides on-site training for managers and supervisors on a variety of employment law topics, such as preventing sexual harassment in the workplace and avoiding legal pitfalls in the hiring process. She has conducted investigations in a number of high-profile employment...

216-820-4241
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