Although we don’t talk about it much, many New York employers have team members who also serve with the United States military. When that happens, employers have a legal duty to accommodate the employees.
A recent case at the Third Circuit Court of Appeals addresses the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the issue of whether employees should receive compensation while away from work because of military leave. In Scanlan v. American Airlines Group Inc., the court concluded that a reasonable jury could find that short-term military leave is comparable to jury-duty leave or bereavement leave. In this case, two pilots sued American Airlines for failing to provide them with the same employment benefits as other similarly-situated employees. Specifically, they focused on the fact that American Airlines paid employees for bereavement leave and jury-duty leave but refused to pay any employees for short-term military leave.
Why does this case matter?
This case is important because the court designated it as “precedential.” This means that future courts and judges should consider it when faced with similar facts or issues. Essentially, if a similar case arises under the USERRA, the holding in this case should be followed.
While we’re not in the Third Circuit here in New York, courts in the Second Circuit have ruled similarly. For example, in 2022, the District Court for the Eastern District of New York held that an employee’s claim against his employer wouldn’t be dismissed because he had sufficiently pled a plausible comparison between jury duty and military leave. These cases reflect that the courts won’t automatically dismiss a claim related to getting paid under the USERRA if the plaintiff can sufficiently plead that military leave is similar enough to other types of leave such as bereavement leave and jury duty.
With these cases in mind, let’s dive into what the USERRA is and what employers need to know.
What exactly is the USERRA?
In the United States, many individuals who are in the Reserves typically need time off from work for trainings and other military obligations throughout the year. An employee is entitled to 15 days of time off each fiscal year – at full pay – for certain types of active or inactive duty as a member of the National Guard or as an armed forces Reservist. The 15 days apply for active duty, active duty training, and inactive duty training. The employee also can take up to 22 work days per calendar year for emergency duty if ordered by the President, the Secretary of Defense, or by a State Governor.
This is where the USERRA comes in, as its goal is to eliminate or minimize any disadvantages in the workplace for an employee who serves her nation. It also exists to prohibit discrimination against an employee because of her service in the Reserves or similar uniformed services.
Key Provisions of USERRA
The USERRA applies to anyone who performs duty in the uniformed services, which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserves of each service. Trainings or service in the Army or Air National Guard also is protected under USERRA.
Under USERRA, the employee has the right to be re-employed in his civilian job if he takes a temporary leave to perform service in his respective branch and:
- He provides the employer with advanced written or verbal notice of his upcoming service;
- He returns to work in a timely manner after conclusion;
- The cumulative total of military service leave under a single employee doesn’t exceed five years; and
- He wasn’t separated from the service due to a disqualifying discharge.
Any past or present member of the uniformed services can’t be denied employment, re-employment, retention in employment, or any benefit of employment because of her status in the uniformed services.
The USERRA applies to ALL employers, regardless of size, including federal and State governments.
Does an employer have any rights under USERRA?
As an employer, you’re entitled to an employee giving you advance notice of her upcoming leave. If you don’t receive advance notice, then the employee may not be entitled to re-employment rights and benefits.
As an employer you’re prohibited from discriminating against employees because of their service, but you’re not required to give preferential treatment to service members.
As a result, if a returning service member doesn’t request re-employment in a timely manner, the employee may be disciplined in a manner consistent with the way you normally discipline a worker who’s absent without leave or authorization.
You’re also not required in every situation to re-employ a service member. You might not have to re-employ the service member if:
- Changes in the employer’s circumstances make re-employment impossible or unreasonable (e.g., you’re going out of business)
- The original employment was temporary, with no expectation that it would continue indefinitely (e.g., a contractor hired for just one specific job)
- The service member sustained an injury that would create an undue hardship on the employer if the service member were re-employed. It’s important to note, however, that the employer must make a reasonable effort to accommodate the injury.
- The service member received an unfavorable or dishonorable discharge.
What should you do to comply?
No matter what kind of business you own or operate, the USERRA applies to you, so it’s important to ensure you’re compliant with this federal law.
At all times, you should ensure that no discrimination is occurring against any employee because of her service in the armed forces or the reserves. This includes denying employment, denying re-employment, denying promotions, or denying employment benefits because of someone’s past, present, or future service in the military. This means you can’t refuse to hire someone because of their military service, and you can’t refuse to promote him or fire him because of his service, either.
Each fiscal year, you should provide any employee participating in active duty or inactive duty trainings 15 days of paid leave. The pay should be equivalent to the full-time pay of an eight-hour workday. An employee may be charged military leave only for the hours that the employee would have otherwise worked and received pay, so make sure you’re not over-compensating the employee for hours he otherwise wouldn’t have worked. Also, the leave shouldn’t be charged for weekends and holidays that occur within the period of military service.
You also should ensure that you provide your employees with notice of the rights, benefits, and obligations of employees and employers under USERRA. To assist with this, the federal Department of Labor developed an information poster, available here, to be posted at workplaces.
Questions?
If you’ve got questions about USERRA or other employee benefits and rights, let us know. We’re happy to help employers, large and small, ensure they’re complying with their legal duties. Call us at 716.839.9700 or email us at info@coppolalegal.com. We’re here to help.
