Many businesses employ individuals who must take leave from work for military service. In these instances, employers are often unsure of which federal, state, and local wage laws apply. Fortunately, the Seventh Circuit recently clarified the applicable laws regarding employee compensation during short-term military leave.
On February 3, 2021, the Seventh Circuit decided White v. United Airlines, Inc., addressing the applicability of the Uniformed Services Employee and Reemployment Rights Act (“USERRA”). The Seventh Circuit held that USERRA prohibits civilian employers from discriminating against employees for their military service. To that end, employers are required to afford military leave the same rights and benefits as comparable, nonmilitary reasons for paid leave, such as jury duty, bereavement leave and sick leave.
Under USERRA, an “employer” is defined as an entity that pays salary or wages for work performed or that has control over employment opportunities, including any entity to whom an employer has delegated the performance of employment-related responsibilities. The Seventh Circuit further stated that an employer’s policy of paying employees during a leave of absence is a “term, condition, or privilege” of employment under the law.
However, the Seventh Circuit’s decision in White did not resolve the particularities of applying USERRA in all cases, as the nature of an individual’s military-related leave is dependent upon many factors. As noted above, employers are required to provide paid leave if they provide comparable leave for non-military absences. The Seventh Circuit discussed three considerations for determining whether comparable leave is provided by an employer: (i) the duration of leave, (ii) the purpose of leave, and (iii) the ability of the employee to choose when to take leave. These factors are an individual question of fact for each employee-employer relationship.
Many employers do not have paid military leave policies but do have paid jury duty or sick leave policies in place. In light of the Seventh Circuit’s holding in White, it’s important employers, especially those with a large military reservist staff, to consider their current leave policies, because military employees may be eligible to bring a class action suit under USERRA. The Seventh Circuit remanded White so the parties could address the particular factual issues disputed in the case. Employers should monitor developments in this area of the law to ensure that they are providing legal employment benefits to all employees.
If you would like more information regarding your business’s wage obligations under USERRA, contact the attorneys at Rock Fusco & Connelly, LLC.