Are you giving them your best?
Servicemembers are entitled to the Employer’s “most-favorable leave-of-absence policy”
At all three USERRA briefings I conducted last weekend for servicemembers in local reserve units of the Marines, Navy and Air Force, the same potential Uniformed Services Employment and Reemployment Rights Act (“USERRA”) violation was raised relating to their employers’ leave-of-absence (LOA) policies. The discussions with these servicemembers suggests that their employers regularly violate USERRA by providing LOA benefits to non-servicemember employees that are more beneficial than those provided to their servicemember employees when they are called to perform their military service.
The Most Favorable Leave of Absence Policy
The Rule governing this situation states that “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(b); see also 70 FR 75265 (citing favorably Waltermeyer v. Aluminum Co. of America, 804 F.2d 821, 825 (3rd Cir. 1986)). The Rule states that the “duration of leave” is the “most significant factor to compare” to determine if the LOA is “comparable.” Thus, it provides an example of two leaves that are not comparable–a two-day bereavement leave compared to a lengthy deployment. Id. But what LOAs are comparable under the Rule, and therefore should be provided to servicemembers who are performing military service?
What Are “Comparable” Leaves of Absence?
If “duration of the leave” is the most significant factor, then it is doubtful a lengthy deployment would be comparable to any other LOA policy provided by the employer. However, Reserve Component Servicemembers have required drill one weekend a month, two weeks of required annual training, and are often given short-term orders that may last for weeks or even months. In these situations, one can view other LOAs as “comparable,” such as parental/maternity leave, medical leave, jury duty, and funeral leave, all of which have been the subject of claims against employers.
Although the Rule observes that secondary factors to determine whether a LOA is comparable include “purpose of the leave and the ability of the employee to choose when to take the leave,” Id. it is questionable how significant these factors are. USERRA generally does not distinguish between “voluntary” and “involuntary” orders when considering whether the servicemember has USERRA rights. Likewise, there is little guidance in the Rules as to how the “purpose” of the leave would impact the analysis one way or the other. One factor specifically rejected as impacting this analysis is whether the leave is “paid or unpaid” by some third party. 70 FR 75264.
Since “[USERRA] is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need,” Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 285 (1946), courts would likely find many of the short-term LOAs described above comparable to uniformed service, at least those not involving a lengthy deployment. Even then, if the employer provides compensation for a certain period of a lengthy LOA, the same benefit would likely have to be provided to a servicemember on a lengthy military LOA. For example, an employer who provides paid LOA for the first month of a lengthy medical or parental leave would likely have to provide the same benefit to a servicemember on training or a deployment. Similarly, going back to the example in the DOL regulations, a short funeral leave may not be comparable to a lengthy deployment, but it may be comparable to monthly drill. If the servicemember misses work for that purpose, the employer may be required to provide the same LOA benefit as for the bereavement leave.
What Benefits Are Implicated?
Typically, the “benefit” at issue under this Rule involves lost pay that was provided to non-servicemember employees under comparable LOA policies. But there are other benefits that may be implicated by this Rule. For instance, accrual of bonuses or vacation days during the LOA, whether absent employees have promotion opportunities, or continued employer pension contributions, are some of the benefits that may be an issue.
Don’t Delay – Review Your LOA Policies for Compliance
Finally, for those employers who have more pressing matters than to review their LOA policies to see if there may be an issue, and will instead wait until an employee raises the issue, there is a substantial risk damages will accrue indefinitely since there is no statute of limitations limiting USERRA claims. In one recent case a servicemember sought damages extending over a period of more than four years in lost compensation because the employer provided paid leave for non-military employees on jury duty. It is therefore advisable to pay attention to this issue now, or face substantial claims in the future.
ESGR Can Provide Assistance
USERRA covers almost all civilian employers, and governs their rights and responsibilities when hiring, employing, or terminating servicemembers. If you have questions regarding this, or any other, issue covered by USERRA, the Department of Defense’s Employer Support of the Guard and Reserve Program (“ESGR”) provides assistance, guidance, and resources for servicemembers and their civilian employers.
It was an honor to educate the reserve component servicemembers last weekend regarding their rights and obligations under USERRA. Whereas these servicemembers are essentially a “captive audience,” since the Department of Defense requires their attendance at these briefings at least once a year, their employers could benefit from similar briefings to effectively navigate the intricacies of USERRA. If you wish to schedule a USERRA training session for your managers, supervisors or HR staff, please contact your local ESGR volunteer.