October 17, 2021

Volume XI, Number 290


October 15, 2021

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October 14, 2021

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You Get Paid Leave! And You Get Paid Leave! USERRA Gets You Paid Military Leave!

The Third Circuit Court of Appeals recently held that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) entitles employees to paid short-term military leave in certain circumstances, following the Seventh Circuit’s similar holding in White v. United Airlines, Inc. In Travers v. Federal Express Corporation, Gerard Travers sued his employer, FedEx, under USERRA, alleging that the company wrongfully withheld paid leave benefits for leave he took as part of his Naval Reserve service. USERRA generally entitles employees taking military leave to the “other rights and benefits” that an employer gives to similarly situated employees taking similar kinds of leave. Travers argued that he should have received paid leave for short-term military service under USERRA because FedEx gave other employees paid leave when they had to miss work for things such as jury service, illness, and bereavement. After his claim was dismissed by the Eastern District Court of Pennsylvania, Travers appealed to the Third Circuit.

The Third Circuit agreed with Travers. By reading sections 4316(b)(1) and 4303(2) together, the Third Circuit found the statute creates a comparator for employers to determine compliance with USERRA, where Group 1 includes employees on leave for military service and Group 2 includes  employees with “similar seniority, status, and pay who are on . . . leave of absence” for other reasons. If Group 2 gets something that Group 1 does not, then Group 1 is denied “other rights and benefits” under USERRA. Because FedEx provided paid leave for Group 2 when those employees missed work for jury duty, bereavement, and health reasons, but did not provide paid leave to Travers or Group 1, FedEx denied Group 1 a “right and benefit” protected by USERRA.

Employers can use the court’s comparator to determine whether their paid-leave policies comport with the Third Circuit’s interpretation of USERRA.

© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 239

About this Author

Christina M. Seanor Attorney Litigation Bradley Arant Law Firm Jackson

Christina Seanor has developed a client-focused, hands-on litigation strategy that saves clients time and money. As an associate in Bradley’s Jackson office, Christina is licensed to practice law in Mississippi and Louisiana and is uniquely situated to handle matters in federal and state courts across both states. She also has experience arbitrating matters in AAA and JAMS.

Early in her career, Christina gained experience resolving commercial property coverage disputes in the petro-energy industry and learned the most crucial components of any...

Anne R. Yuengert Employment Attorney Bradley Birmingham

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...