USERRA May Require Employers to Pay Reservists on Military Leave

​The 7th U.S. Circuit Court of Appeals revived a United Airlines pilot's claims that he should receive profit-sharing-plan credit and pay for military-training leave.

The plaintiff began working as a commercial airline pilot in 2005, first for Continental Airlines and then for United Airlines following United's acquisition of Continental in 2010. In 2000, he began serving as a member of the U.S. Air Force, first on active duty and then on reserve duty. As a reservist, he was required to attend periodic military training to remain ready in case he was called back to active duty. For these absences, he took short-term military leave, usually for a day or two at a time, during which he was not paid by United.

Under United's collective bargaining agreement, pilots receive pay during jury duty or sick leave. United also maintains a profit sharing plan for its pilots. Under the plan, pilots are credited with a share of the company's profits based on the wages they earn over the relevant period. Because these credits are based on wages, pilots who take paid sick leave or paid leave for jury duty earn credit toward their profit sharing plan, while pilots who take short-term military leave do not.

In January 2019, the plaintiff initiated a class action against United and its parent company, United Continental Holdings, alleging that United's failure to provide paid leave and profit-sharing-plan credit to reservists on military leave denies them rights and benefits that are given for comparable, nonmilitary leaves, thereby violating the Uniformed Services Employment and Reemployment Rights Act (USERRA).

The district court dismissed the plaintiff's complaint, rejecting his interpretation of the statute because it feared that it would create a universal requirement that private employers pay for military leave. The court further found that, as a matter of law, jury duty and military leave are not comparable for purposes of USERRA, and so the statute's equal benefits rule does not apply.

On appeal, the 7th Circuit closely parsed the language of USERRA to determine whether pay for periods of leave could fall within USERRA's equal benefits rule for employees serving in the military. The plaintiff alleged that, like jury duty leave and sick leave, military-training leave often required several days off work at a time.

United argued that USERRA specifically describes the equivalent rights and benefits that employers must provide to employees serving in the military as including "wages or salary for work performed." Because the benefits of wages and salaries only need be provided for work performed, United reasoned, USERRA does not require payment of salary or wages to a reservist employee for any period of time in which he or she cannot perform work for the employer.

The 7th Circuit disagreed, finding that the language referenced by United did not limit the requirements of USERRA, but only described one example of what they might include. In reviewing USERRA, the court determined that it may require employers to pay employees serving in the military while on military-training leave if, in fact, the leave closely resembles other types of leave for which employees are paid.

The 7th Circuit thus sent the case back to the district court to analyze whether the usage of jury leave and sick leave by United pilots closely resembles the usage of military-training leave by reservist pilots. If the plaintiff can show a sufficient resemblance such that reservist pilots are not receiving equivalent rights and benefits as nonmilitary pilots, the case could potentially continue to a trial on behalf of all reservist pilots at United.

White v. United Airlines Inc., 7th Cir., No. 19-2546 (Feb. 3, 2021), petition for rehearing en banc denied (March 10, 2021).

Professional Pointer: The 7th Circuit's recognition of this novel claim should prompt employers to closely review their leave policies to determine whether they treat military leave differently than other types of leave of similar frequency and duration, and consider how to justify or eliminate any differences in treatment.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.