Class Action Lawsuits Challenge Employers’ Military Leave Practices

Two federal courts have allowed class actions to proceed against employers under the Uniformed Services Employment and Reemployment Rights Act (USERRA). In Baker, an employer provided paid leave to employees taking jury duty, bereavement, or sick leave but did not provide similar paid leave for employees taking short-term leave to engage in USERRA qualified military service (e.g., with the Army Reserve). An employee sued on behalf of himself and other servicemember employees who had taken military leave lasting 14 days or less, seeking (1) a declaration that the employer violated USERRA by not providing pay during short-term military leave, (2) an order requiring the employer to pay for such leave in the future, and (3) an order for back pay. The employer argued that USERRA does not require payment of wages when no work is performed and that military leave is not comparable to the other forms of leave provided by the company. But the court allowed the case to proceed as a plausible assertion of a USERRA violation, explaining that employees who take military leave from their jobs must receive the same rights and benefits that are provided to employees absent for other reasons, and that USERRA must be broadly construed in favor of servicemembers.

Similarly, in Haley, a group of servicemember employees sued their employer for denying pay to employees on short-term military leave (e.g., for qualified military service in the Air Force Reserve or National Guard) while providing paid sick leave, bereavement leave, and time off for jury duty. The employer asked the court to dismiss the case, arguing that (1) USERRA does not require preferential treatment for reservists, (2) USERRA protects only existing rights and benefits—it does not require the creation of new ones, and (3) USERRA’s statutory language confirms that Congress did not intend to require employers to pay reservists during military leave. The court was unpersuaded, concluding that the employees had made a plausible assertion of a USERRA violation because equal treatment exists only if employees on short-term military leave have the same rights and benefits as employees in comparable situations.

EBIA Comment: As noted in both opinions, at least two federal appellate courts have determined that pay during leave is a “right and benefit” protected by USERRA. Employers providing paid leave for non-military reasons should consult with counsel before denying pay during short-term military leave. It is also important to remember that employees on military leave generally have a right under USERRA to elect to continue employment-based group health plan coverage for themselves and their covered dependents. This is in addition to any continuation rights under COBRA. For more information, see EBIA’s Group Health Plan Mandates manual at Sections XVIII.D (“USERRA’s Continuation Requirements for Health Plans”) and XVIII.K (“Other Requirements Regarding USERRA Leave”). See also EBIA’s COBRA manual at Section XXXVI (“Uniformed Services Employment and Reemployment Rights Act (USERRA)”).

Contributing Editors: EBIA Staff.