Ninth Circuit Says A Jury Should Decide Whether Non-Military Leaves Are Comparable To Military Leaves Under USERRA

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Mar 06, 2023

The Uniformed Services Employment and Reemployment Act (USERRA) says in section 4316(b)(1), that a person absent from employment due to service in the uniformed services shall be “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer” to other employees on non-military furloughs/ leaves of absence.

Casey Clarkson, a commercial airline pilot, and military reservist sued his employer for violating the USERRA by not paying pilots who took short-term military leave (less than 30 days) while paying pilots who took short-term jury duty, bereavement leave, or sick leave.  Clarkson’s employer, Alaska, and Horizon Air moved for summary judgment, claiming that military leave is not comparable to non-military leave “as a matter of law.  The Airlines reached this conclusion by considering military leaves of all lengths.  Clarkson focused his analysis on only short-term military leaves.  The district court granted summary judgment for the Airlines.  Clarkson timely appealed.

The Ninth Circuit Court of Appeals first found that the district court erred by comparing all military leaves, instead of just the short-term military leaves at issue in this case.  The Ninth Circuit noted that the USERRA regulation at 20 CFR Section 1002.150 lists three comparability factors: duration of leave; the purpose of leave; and the ability of the employee to choose when to take the leave (aka control).  The Ninth Circuit stated that the duration of the leave was the most important factor.  It reasoned it is entirely possible that a two-day military leave may be comparable to a two-day funeral leave.

Next, the Ninth Circuit found that the issue of comparability of military and non-military leaves was a question of fact for the jury, particularly because the parties had factual disputes relating to all three comparability factors.  Regarding the duration factor, there was contradictory statistical evidence due to Clarkson pulling statistics based on short-term military leave alone, while the Airlines looked at all military leaves when compiling their data.  Regarding the purpose factor, each side also reached differing conclusions leaving open factual disputes.  The Airlines argued that the purpose of military leave is to allow employees to pursue parallel careers.  By contrast, Clarkson argued the primary purpose of military leave is to perform a civic duty and public service. Finally, regarding the factor of control, there was again conflicting testimony on the flexibility pilots had to resolve scheduling conflicts.  The Ninth Circuit denied the Airlines’ motion and concluded that the factual disputes were best left to the jury, and not for the court to decide.

Clarkson v. Alaska Airlines, Inc.

Note:  The USERRA only requires an employer to provide a service member equal treatment – not better treatment.  If a service member requests military leave, be sure to compare non-military leaves of similar duration to determine whether to pay the service member for the leave.  In addition, be sure to carefully analyze California’s military leave statutes, which also require the employer to pay the service member on leave in some instances.

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