February 6, 2023

Volume XIII, Number 37

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February 06, 2023

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February 03, 2023

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The Third Circuit Opens The Door to Class Actions Seeking Paid Military Leave

On August 10, 2021, the Third Circuit in Travers v. Federal Express Corporation revived a class action lawsuit under the Uniformed Services Employment and Reemployment Act of 1994 (“USERRA”), holding that employers must provide servicemembers with pay during military leave when employers pay employees on “comparable types of leave.”

The Third Circuit’s opinion rested on its reading of two provisions of USERRA: Section 4316(b)(1) and Section 4303(2).

Section 4316(b)(1) entitles service members to “rights and benefits [that] are generally provided by the employer . . . to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan  . . .”

Section 4303(2) defines “rights and benefits” broadly to include “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.”

The district court had concluded that paid military leave was never required under USERRA because it was not a defined “benefit” or “right” under the statute.  The Third Circuit disagreed and held that “the best reading of USERRA directs employers to provide the benefit of compensation when they choose to pay other employees for comparable forms of leave.”

To that end, the Third Circuit held that “USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.”  Rather, “USERRA entitles employees taking military leave to the ‘other rights and benefits’ their employers give to employees taking similar kinds of leave,” including pay during leave.

In reaching this conclusion, the Third Circuit rejected the argument that paid military leave was not available because it was not expressly listed in the statute.  The Third Circuit held, instead, that USERRA’s definition of “rights and benefits” was expansive and that the types of benefits listed in the statute were merely illustrative, not exhaustive.

Though the Third Circuit affirmatively held that pay during military leave could be a “benefit” or “right” under the statute when the employer offered paid leave to employees on “comparable types of leave,” the Court did not answer the more difficult question of what constitutes “comparable types of leave.”  The Third Circuit remanded the case to the district court to determine whether the paid sick leave, paid jury duty leave, and paid bereavement leave at issue in the case are “comparable” to military leave.

The Third Circuit’s decision is likely to increase the number of class action lawsuits challenging unpaid military leave policies. Employers should revisit their military leave policies to determine what obligation, if any, they may have to provide paid military leave as a result of their other paid leave policies.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 228

About this Author

Tyler S. Laughinghouse Employment Lawyer Hunton AK

Tyler’s practice focuses on labor and employment law, including counseling, litigation and regulatory advice.

Tyler has developed an extensive wage and hour practice, defending clients in nationwide class action lawsuits under the FLSA and state overtime laws. He also has significant experience handling employment discrimination cases, reviewing and drafting employee applications and handbooks, and counseling employers on their obligations under various state and federal employment and traditional labor laws. Tyler also has experience with...

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Ryan A. Glasgow Employment Lawyer Hunton AK

Ryan represents employers and executives in labor matters and complex employment litigation and provides strategic labor and employment advice.

Ryan’s labor and employment litigation experience is both broad and deep, and he is particularly skilled in defending employers against wage and hour class and collective actions. Ryan has been involved in over thirty-five of these cases, along with numerous other single plaintiff wage and hour matters, throughout the country. He has achieved success for his clients in many of these cases, including on...

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