Third Circuit Holds “Comparable” Paid Leave Available to Servicemembers As A Right And Benefit Pursuant to USERRA

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By Kristine Ryan, Esq.

The Uniform Services Employment and Reemployment Rights Act of 1994 (“USERRA”), one of several statutes benefitting veterans, prohibits civilian employers from discriminating against employees because of their military status.  USERRA does not require an employer to offer paid military leave of absence.  However, in a recent precedential decision, the Third Circuit 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.”  Travers v. Fed. Express Corp., No. 20-2703, 2021 WL 3504037, at *1 (3d Cir. Aug. 10, 2021).

Plaintiff Gerard Travers, a Navy veteran and Reservist, fulfils his Reserve duties during leaves from his job at Federal Express.  FedEx did not compensate Travers for these absences because it does not pay employees for military leave.  Travers challenged that decision citing USERRA and pointing to paid leave the company offered for other non-military absences, such as jury duty, illness and bereavement.

The District Court dismissed Travers’s Complaint concluding that paid leave was not a “right and benefit” under USERRA.  The Third Circuit reversed.  Looking to the statute’s text, legislative history and codified purpose, the Third Circuit held that Travers stated a claim under USERRA because that statute does not allow an employer to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.

The Seventh Circuit likewise recently held that USERRA’s same “rights and benefits” mandate requires an employer to provide paid military leave to the same extent that it provides comparable non-military leave.  White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021).

These precedential decisions do not end the battle.  The plaintiffs bear the burden to demonstrate their employers offer a type of leave comparable to any given stretch of military leave.  Travers, No 20-2703, at fn.10; White, 987 F.3d at 624.  If that burden is met, the decisions leave open the question of whether the employer must then compensate their military leave at full pay, or remit the differential between regular pay and military pay.  Employers should review their leave policies in light of these decisions, to avoid potential exposure under USERRA. 


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