Alert
09.16.2021

Those who serve in the military must also balance civilian life, including time away from a civilian job.” 

On August 19, 2021, the U.S. Court of Appeals for the Third Circuit issued a decision interpreting the Uniformed Services Employment and Reemployment Rights Act (“USERRA” or “the Act”) benefits to include compensation under certain circumstances.  It said, “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.” 

The Court reversed a lower court’s dismissal of a lawsuit filed by Gerard Travers, a United States Navy Reservist.  Travers worked for Federal Express and attended to his reserve duties during leave from work.  During that leave, Federal Express did not pay him in contrast to other employees who took time away from work for jury duty, illness and bereavement.  The district court’s dismissal stemmed from its finding that USERAA did not confer “paid leave” as a “right and benefit.”

Congress enacted USERRA to be the most “expansive protection [to service members] yet enacted,” and the Third Circuit’s opinion presents a comprehensive review of the Act, determining the parameters of the benefits afforded to service members.    The Court details the long history of USERRA and its predecessor Acts (Selective Training and Service Act of 1940, The Selective Service Act of 1948, Universal Military Training and Service Act (1951), and the Veteran’s Reemployment Rights Act of 1974 (USERRA’s immediate predecessor). 

The Court then applies the rules for statutory interpretation to two provisions of USERRA: (1) Section 4316(b)(1) “which entitles employees taking military leave to the `other rights and benefits’ their employers give to employees taking similar kinds of leave; and (2) Section 4303(2) which defines those “other rights and benefits.”

The Court interprets Section 4316(b)(1) to require that employees who take military leave from their jobs must receive the same rights and benefits provided to employees absent for other reasons.   Travers argued that he was entitled to continue receiving pay while absent from work for military duty.  Federal Express responded that it had never provided “paid military leave” to anyone.  It only offers pay for “certain specific kinds of time away from the job such as `paid sick leave’ or `paid jury-duty leave.’”   The Court rejected such “labels.” Instead, it compared employee “rights and benefits” offered to an employee absent from work by “reason of service in the uniformed services” with an employee “having similar seniority, status, and pay who are on … leave of absence.”  It is a comparison, simply put by the Court, of employees who are “absent” from work -- “Group 1 for military service, Group 2 for anything else.”  The Court concluded that Travers may state a claim under Section 4316 (b)(1) for pay while on leave.

The Court next found in Section 4303(2) that “Congress enacted a broad definition encompassing a wide range of benefits illustrated, not exhausted by a list of examples.”  Thus, the Court’s bottom line is that “rights and benefits” under USERRA include “pay while on leave.”  The Court vacated and remanded the District Court’s grant of Federal Express’ motion to dismiss.

USERRA’s job protection guarantees, according to the Third Circuit, include compensation during the reservist’s leave. Failure to follow the law could result in a complaint to the federal government or, as in this case, a lawsuit. Accordingly, employers should immediately review their leave policies, both paid and unpaid,  to ensure that their military leave policies and procedures are compliant with the Third Circuit’s reading of a reservist’s rights under USERRA. 

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