USERRA May Require Employers to Provide Paid Military Leave, Circuit Court Rules

In White v. United Airlines, Inc.,1 the U.S. Court of Appeals for the Seventh Circuit held that the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") requires employers to provide short-term paid military leave, if they provide paid leave for comparable non-military absences, such as for jury duty or bereavement leave. USERRA is a federal law designed to encourage military service by reducing the negative impacts such service can have on civilian careers.2 At issue in White is a provision of USERRA that generally requires an employer to provide an employee who misses work due to military service with the same non-senioritybased "rights and benefits" as the employer provides to employees on comparable forms of non-military leaves of absence.3 USERRA defines "rights and benefits" as including: any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations and the opportunity to select work hours or location of employment.4 Prior to the Seventh Circuit's decision in White, whether the "rights and benefits" protected by USERRA include paid leave was an open question, with district courts reaching opposite conclusions. While paid jury duty and sick leave policies are relatively common (and sometimes required by state or local law), paid military leave policies are much less common. [...]because leave policies are often applied across large swaths of the workforce, and because the interpretation of USERRA's "rights and benefits" provision is a common question of pure law, claims for paid military leave are a prime candidate for class action treatment.