Ninth Circuit Weighs Rules On Paid Leave Under USERRA Comparability Analysis

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Attorney Harrison Oldham




Under USERRA, employers must provide employees who take military leave with the same rights and benefits as their colleagues who take “comparable” non-military leaves. So what is a comparable leave? Well, that is not always the easiest question to answer.  For instance, If the benefits vary, the employee must be given “the most favorable treatment according to any comparable form of leave.”


With that in mind, in Clarkson v. Alaska Airlines, Inc., the Ninth Circuit recently held the comparability analysis under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), in some instances, should compare only short-term military leave (rather than all military leaves) to other non-military leaves.


In Alaska Airlines, Casey Clarkson, a commercial airline pilot and military reservist, brought a class action lawsuit against Alaska Airlines and Horizon Air for allegedly violating USERRA because they didn’t pay him while on short-term military leave. According to Clarkson, the airlines provided paid leave for non-military leaves, like jury duty, bereavement leave, and sick leave. The district court granted summary judgment to the airlines, finding that military leave and non-military leave are not comparable as a matter of law. The Ninth Circuit disagreed, remanding the case for a jury to decide the comparability issue.


The court held that the district court erred by inappropriately considering all military leave categorically instead of the short-term military leave that Clarkson took. Generally, when determining whether a non-military leave is comparable, an employer should consider duration, purpose, and control. The district court considered the leave’s frequency as an integral part of the duration analysis and disregarded conflicting evidence and factual disputes about the purpose of military leave and the ability of pilots to control when they take military leave. The Ninth Circuit also reiterated that duration is the most significant factor in the comparability analysis.


The Ninth Circuit’s decision clarified that paid non-military leave should not be compared to all military leave, which can last from a few days to years. Rather, a USERRA claim for leave may be defined by the particular length of the military leave at issue. Thus, the Ninth Circuit held that a jury could find the identified non-military paid leaves (i.e., sick leave, jury duty, bereavement, etc.) to be comparable to short-term military leave. The amount and duration of paid military leave would be determined by the amount of paid non-military leave available.


USERRA protects military service members and veterans, including reservists and National Guard members, from employment discrimination on the basis of their service. The law applies to all employers, no matter the number of employees, and it allows service members to regain their civilian jobs following a period of uniformed service. USERRA entitles service members who are “absent from a position of employment by reason of service in the uniformed services” to the same “rights and benefits not determined by seniority” as nonmilitary employees who take leave.


The Ninth Circuit’s decision in Clarkson v. Alaska Airlines, Inc. aligns with decisions made by the Seventh and Third Circuits, who have also upheld USERRA protections. These rulings highlight the importance of employers reviewing their benefits policies for compliance. Employers who voluntarily provide paid leave for non-military reasons such as jury duty, sick leave, or bereavement leave to employees should carefully consider whether they should also be providing paid leave of similar duration and frequency for military purposes, including short-term annual training, to avoid violating USERRA.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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