CHICAGO — A federal appeals panel has determined a federal law compels employers to provide paid military leave in the same manner as for sick time or jury duty.
The decision from the U.S. Seventh Circuit Court of Appeals comes as the latest twist in a legal fight that began in January 2019. At that time, plaintiff Eric White, of Ladera Ranch, Calif., filed a class action complaint against United Airlines, alleging the carrier violated the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by not paying normal wages and salaries to employees on short-term military leave. He said this also has the effect of shorting them credit under the company’s profit-sharing plan.
White, who started as a pilot with Continental Airlines in 2005 and stayed with the company after its 2010 merger with United, has been on active and reserve duty with the U.S. Air Force since 2000.
Michael Gray
| Jones Day
U.S. District Judge Charles Norgle dismissed White’s complaint, writing that agreeing with the pilot’s argument would functionally require all private employers to pay for military leave, and also indicating jury duty and military leave aren’t equivalent under the USERRA.
U.S. Seventh Circuit Judge Diane Wood wrote the opinion on White’s appeal, issued Feb. 3. Judges Michael Brennan and Michael Scudder concurred.
According to Wood, White’s argument the law covers military pay is the same legal basis as his claim to participation in United’s profit sharing plan. White argued the relevant section of the law — which Wood wrote had “the goal of prohibiting civilian employers from discriminating against employees because of their military service” — includes a broad definition of “rights and benefits” covering his leave time.
United, however, pushed back by insisting the federal law stipulates compensation is “for work performed.”
“It is not a bad point, but in the end we are not persuaded,” Wood wrote. The panel pointed to Congress’ 2010 amendment to the 1994 USERRA, saying the clear intent was “to expand the definition of benefits by closing a gap” and rejecting United’s implication the amendment shrunk the scope.
The panel also rejected United’s argument that USERRA is in conflict with an earlier federal law giving federal workers paid leave for jury duty and medical absences. Wood wrote that position “exaggerates the inconsistency” because coverage for all federal employees is distinct from protections granted for military members who may be privately employed. Furthermore, the USERRA “sets forth an equality principle, not a floor or a cap on benefits” and doesn’t say anything about what specific benefits private employers must provide.
While United argued White’s lawsuit could, if resolved in his favor, expand payroll obligations for a wide variety of employers, Wood wrote “less than 1 percent of employees in the national economy are reservists. Of those, some undoubtedly work for employers who do not provide compensation for comparable forms of nonmilitary leave, while others work for employers who already provide paid military leave.”
The panel also clarified that USERRA only covers paid leave for military duty if the duration is comparable to other forms of absence, further limiting its impact on employers.
In reversing Norgle’s dismissal and remanding the complaint, the panel said “an important inquiry” remains: White must prove the comparison between his reservist duty and other reasons for leave. While duration is a key factor, according to the Department of Labor, other aspects included the purpose of the leave and the employee’s ability to schedule the absence.
Whereas Norgle drew a distinction between mandatory jury duty and voluntary military service, the panel stressed the intent of USERRA was to ensure people weren’t penalized for enlisting. Saying they did not have enough information on White’s personal work and military history, Wood concluded: “This is a matter best to be determined on remand.”
The panel also declined to resolve whether United is an employer under the USERRA definition, saying White’s argument of insufficient legal distinctions between United Airlines and United Continental Holdings, including which entity has control over employment opportunities and participates in union negotiations, are sufficient to survive a motion to dismiss, but are not fully resolved.
White is represented in the action by attorneys R. Joseph Barton, of the firm of Block & Leviton LLP, of Washington, D.C.; Matthew Z. Crotty, of Crotty & Son Law Firm, of Spokane, Wash.; Thomas G. Jarrard, of Spokane, Wash.; Peter Romer-Friedman, of Gupta Wessler PLLC, of Washington, D.C.; and Pooja Shethji, of Outten & Golden LLP, of Washington, D.C.
United is represented by attorney Michael J. Gray, and others with the firm of Jones Day, of Chicago and Washington, D.C.