Do you have to pay an employee on military leave? Generally, you only have to pay for military leave if you pay employees on “comparable” leaves. So what is a comparable leave? In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit recently held the comparability analysis under the Uniformed Services Employment and Reemployment Rights Act (USERRA), in some instances, should compare only short-term military leave (rather than all military leaves) to other non-military leaves.
Are All Leaves the Same?
Under USERRA, employers must provide employees who take military leave with the same rights and benefits as their colleagues who take comparable non-military leaves. Where the benefits of comparable non-military leaves vary, the employer must give the servicemember the most favorable treatment given to any comparable non-military leave.
Casey Clarkson, a commercial airline pilot and military reservist, brought a class action lawsuit against Alaska Airlines and Horizon Air for allegedly violating USERRA because they didn’t pay him while on short-term military leave. According to Clarkson, the airlines provided paid leave for non-military leaves, like jury duty, bereavement leave, and sick leave. The district court granted summary judgment to the airlines, finding that military leave and non-military leave are not comparable as a matter of law. The Ninth Circuit disagreed, remanding the case for a jury to decide the comparability issue.
What’s the Right Comparison?
The Ninth Circuit held the district court erred by inappropriately considering all military leave categorically instead of the short-term military leave that Clarkson took. Generally, when determining whether a non-military leave is comparable, an employer should consider duration, purpose, and control. The district court considered the leave’s frequency as an integral part of the duration analysis and disregarded conflicting evidence and factual disputes about the purpose of military leave and the ability of pilots to control when they take military leave. The Ninth Circuit also reiterated that duration is the most significant factor in the comparability analysis.
How Do I Know I’m Doing the Right Thing?
USERRA provides broad protections for servicemembers — that is the point of the statute. However, USERRA does not provide greater rights and benefits to employees who take military leave. You are only required to provide equal treatment — not better treatment. Accordingly, employers should review their benefit policies. When an employee requests military leave:
- Compare the type of leave (e.g., short term vs. long term)
- Look to see whether you pay other employees for any arguably comparable leave
- Assess whether the servicemember taking military leave should get paid