Eleventh Circuit Joins Third, Seventh, and Ninth Circuits in Ruling That USERRA Requires Paid Military Leave When Employer Provides Paid Leave For “Comparable” Absences
Date: September 25, 2023
USERRA is a federal law that protects veterans and military personnel from employment discrimination based on their service. The law specifically requires both public and private employers to allow their employees who serve in the military to take any necessary leaves of absence when called upon for military services. In some instances, the employer may provide paid or unpaid leave. A potential concern arises, however, when an employer provides short-term paid leave separate and apart from paid time off ("PTO") or vacation time, for absences for reasons other than military leave.
In the case of Myrick v. City of Hoover, the Court of Appeals for the 11th Circuit ruled that where the military leave is comparable to other paid leave under USERRA, an employer may violated the non-discrimination provisions of USERRA if it does not provide paid leave to the employee on military leave. In so ruling, the court joins three other circuit courts in ruling that employers must give equal benefits – i.e. paid leave - to employees taking short-term military leave as they give those who take any other type of “comparable leave.”
Plaintiffs Thaddaeus Myrick and three of his colleagues were police officers for the City of Hoover, Alabama. They also served as reserve officers in the U.S. military; a duty that required them to take leaves of absence of varying lengths in order to fulfill their military duties. In addition to paid time off, which all employees accrue, the policy department also provided employees with separate paid leave for various other reasons, such as jury duty, formal city hearings, internal investigation and inclement weather.
USERRA requires employers to give employees on military leave the same “rights and benefits” provided to similarly situated employees on non-military leave. The officers sued their employer, claiming disparate treatment because the employer did not provide them with the same benefits it gave other employees on paid administrative leave. The District Court granted the officers summary judgment, and Hoover appealed the decision to the Eleventh Circuit, ultimately ruling in favor of the officers.
At issue was whether the paid administrative leave offered for jury duty, hearings and inclement weather, was “comparable” to the requested USERRA leave. In deciding that it was, the court focused on three factors as determinative:
(1) the duration of the leave;
(2) the purpose of the leave; and
(3) the ability of employees to choose when they take leave.
The Court found it persuasive that the city was willing to provide its employees with “up to around sixteen months” of paid administrative leave, noting that interestingly, around sixteen months is “the same average length as the longest instances of military leave.” Secondly, the Court found the purpose of both leaves of absence to be similar in that they aim “to shield employees from unnecessary hardship” and/or to comply with the law. Regarding the third and final factor, the court found that military and administrative leaves involve a similar lack of control because “[m]ilitary employees do not control when they will be summoned for active-duty service, just as non-military employees do not control when Hoover will launch an investigation and place them on administrative leave.”
The Eleventh Circuit decision joins decision from the Seventh, Third and Ninth Circuit, finding discrimination against employees on military service where it offered paid leave for some short term absences (such as jury duty, bereavement and other types of paid leaves), but did not provide paid leave for comparable military leave. Although the Fourth Circuit has yet to rule on this issue, given the trend in the case law, employers are advised to review their benefits and leave policies frequently to ensure compliance with USERRA and affirm they are resistant to any possible claims if their other benefits are not “comparable.”
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