posted on Friday, April 13, 2007 11:51 AM
by
Lou Michels
All Leaves Are Not Created Equal
The Uniformed Services Employment and Reemployment Rights Act ("USERRA") is a statute with which I am all too familiar, given my lengthy Reserve career in the armed forces. The statute is unique among employment discrimination statutes because, in some cases, it requires an employer to treat a protected employee better than her similarly situated peers.
But not always. The statute requires that an employer provide the same benefits to employees out on military service as those generally provided by the employer to employees who are on a nonmilitary related "furlough or leave of absence." 38 U.S.C. § 4316(b)(1). The Department of Labor generally interprets this to mean that the best deal offered to an employee on furlough or leave of absence is the same deal that must be offered to a military service member who is out on military leave.
But not all leaves are created equal. In a case at the Federal Circuit, a Department of Justice employee sued for 27 days of paid holiday time for which he was not compensated because he was on a 2 1/2 year active duty tour with the military. The employee's claim was based on the employer's policy of paying holiday pay for other employees to attend jury or court proceedings.
The Federal Circuit rejected this, noting that jury leaves are typically a short-term affair, especially when compared to the typical 12-month-to-3-year active-duty rotation for which the employee was seeking the paid holidays. In other words, an employer is entitled to compare the nature of the leave of absence against the military service in determining whether the same benefit applies.
A common-sense approach that is now mirrored in the USERRA regulations (20 C.F.R. § 1002.150).