Shakespeare could have been talking about military leave when he asked:
What's in a name? That which we call a rose
By any other name would smell as sweet;
Juliet argues that it does not matter that Romeo is from a rival family; what we call something does not affect what it really is. Romeo and Juliet is a tragedy, but your understanding of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not have to be. This bit of prose reminds us that regardless of how a type of paid leave is categorized the law seeks to protect military members from workplace discrimination based on military service.
As a reminder, USERRA protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian jobs following a period of uniformed service. Within the last two years, Courts have consistently expanded the interpretation of USERRA in regard to paid military leave. Based on this new trend of case law, we can determine when a request for paid military leave for short-term assigned duties; such as guard duty, drill, or training, should be treated as a request for any other type of paid leave by analyzing the law.
The USERRA requires an employer to provide pay and other benefits to a service member during periods of leave necessitated by military service to the same extent as it would provide a similarly situated employee pay and benefits during comparable periods. White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021). See also, Travers v. Fed. Express Corp., 8 F.4th 198, 209 (3d Cir. 2021); Won v. Amazon.com, Inc., 2022 U.S. Dist. LEXIS 149208 (E.D.N.Y. Aug. 19, 2022.)
The Department of Labor specified three factors to be considered when determining if two types of leave are comparable:
1. The duration of the leave
2. The purpose of the leave.
3. The ability of the employee to choose when to take the leave.
Imagine that an army reservist, who is also an employee in your district, is notified that they must report for training for two days for training the following month. Are you obligated to pay them for that leave?
It is up to the employee to demonstrate the leave they are requesting is comparable to a type of leave offered to employees for non-military purposes. When considering the request, the district should first look at the most important element; duration of the leave requested. If employees have access to paid jury duty leave for two days, then a request for paid military leave for the same duration of time would be comparable. Courts have also found bereavement leave to be comparable. Next, the purpose of the leave is considered. If the employee indicates that the purpose for the military leave is part of their civic duty, much like jury duty, it is likely that the purpose would be found comparable. The employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. 20 C.F.R. § 1002.150 (2023).
Finally, the ability of the employee to choose when to take leave is analyzed. Though signing up to serve in the armed forces is voluntary, the courts consider only whether the timing of the leave is under the employee’s control. The courts do not look at the voluntary nature of participation in the armed services itself. Once commitment to military service is made, it is the employee’s lack of choice in when they take the necessary leave that weighs in favor of being paid for their requested leave.
Conclusion: This relatively new clarification of USERRA might have you wondering if paid military leave is “to be or not to be.” In light of the requirements of the USERRA, school districts may wish to reconsider the extent to which they offer paid leave that would be considered comparable to military leave, or whether they would alternatively offer leave that entitles the employee to differential pay. We recommend reviewing your current USERRA policies and also the types of paid leave offered by your District.
If you have any questions about the USERRA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.