Jury to decide whether service member employees should be paid for military leave

Two pilots at work during departure

Thanks to a recent ruling by the federal Ninth Circuit Court of Appeals (which covers California, Oregon, Washington, Idaho, Montana, Nevada and Arizona), Alaska Airlines now faces a jury trial in a class action claim that it discriminated against pilots who took military leave.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects civilian job rights and benefits for veterans and members of Reserve components. The statute provides that a service member employee is entitled to the same “rights and benefits” during a military leave as the employer provides to similarly situated employees. If the employer offers different kinds of rights and benefits for different kinds of leave, the employer must provide an employee taking military leave with the same rights and benefits provided under any “comparable” form of leave. Thus, some courts have held that employees taking military leave must be paid for their leave if the employer offers paid leave to similarly situated employees for a comparable leave of absence.

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Casey Clarkson, an Alaska Airlines pilot leading the class action lawsuit, sued in January 2019, alleging that he and other pilots were owed pay for their past military leaves of absence. Clarkson argued that the airline violated the law when it paid employees on sick leave and jury duty leave, but not on short-term military leaves of absence. Comparing the duration of sick and jury duty leaves of absence in general to military leaves of absence in general, the trial court held that the leaves of absence were not comparable, and awarded summary judgment in Alaska Airlines’ favor.

Appeals court overturns summary judgment for employer, sends case to jury trial

The Ninth Circuit reversed the trial court’s decision, finding a jury trial is appropriate. The Ninth Circuit disagreed with the trial court’s focus on military leave and sick leave in general, rather than comparing the short-term military leave at issue, and held that considering military leave categorically would render USERRA’s protections meaningless.

The Ninth Circuit also took issue with Alaska Airline’s argument that pilots would purposefully take more frequent military leave if it were paid as a reason to find for the employer. The Ninth Circuit’s opinion focuses on the purpose of USERRA to support, rather than penalize, service members.

The Ninth Circuit is the third federal appellate court in the last two years to determine that pay is a right and benefit under USERRA, after the Third and Seventh Circuits both ruled in 2021 that paid leave falls within the rights and benefits of the statute. However, each court left a jury to determine if the types of leave the employer offered were comparable.

Employer considerations

With a lack of guidance from the U.S. Supreme Court or the Tenth Circuit (covering Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma), the law for employers in this region is unsettled regarding whether military leave must be paid under USERRA. Employers that offer other forms of leave, such as sick leave, bereavement leave, or jury duty leave, should consider whether an employee who requests military leave of a similar duration may be entitled to pay for this potentially comparable leave. Additionally, state law may offer even greater protections for service members or mandate military paid leave for certain types of employees or for a certain period of time For example, since April of 2021, Oklahoma state law requires public employers to pay service members their full regular pay for military leave of 30 days or less, and the difference between their regular pay and military pay for military leave beyond 30 days.

The case is Clarkson v. Alaska Airlines, Case No. 21-35473 (9th Cir. 2/1/23)