In a case that it characterized as one of first impression in the federal courts of appeals, the Seventh Circuit held last week that the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”), may, in some circumstances, require employers to provide paid leave to employees absent from work due to military service. White v. United Airlines, Inc., Case No. 19-2546 (February 3, 2021).

The plaintiff in White was an airline pilot and a reserve member of the United States Air Force.  Periodically, the plaintiff took short-term leave from his employment to attend military training sessions required for individuals in reserve status. Although the employer’s policies offered pay for some types of leave such as for jury duty, the plaintiff’s military leave was unpaid.  In addition to lost pay, the plaintiff’s military leave also resulted in a reduction of his collectively bargained profit-sharing payments because such payments were calculated as a percentage of total wages.

The plaintiff brought a proposed class action against his employer under USERRA’s provision requiring employers to offer the same “rights and benefits” to service members on military leave as they offer to employees on other, similar types of leave.  See 38 U.S.C. § 4316(b)(1).  The plaintiff argued that, because his employer offered pay to employees on jury duty, it was required under USERRA’s “rights and benefits” provision to offer pay to employees on leave for military service.  The trial court dismissed the plaintiff’s proposed class action based on its holding that USERRA does not require pay for military leave under any circumstances, which had largely been the prevailing view since USERRA’s adoption in 1994.

The Seventh Circuit, however, disagreed.  It held that USERRA’s “rights and benefits” provision does require pay for military leave in cases where the employer offers pay for other, comparable types of leave.  The court reviewed various canons of statutory interpretation that the employer identified in support of its contrary position, finding in each instance that the plain language of the statute undermined the employer’s arguments.  Perhaps recognizing the novel nature of its decision, the Seventh Circuit specifically held that Congressional intent in adopting USERRA was far less important than the statutory text:

[T]he language that Congress chose when drafting the statute is the most important consideration in a case like this—when the meaning of the text can be ascertained, it does not matter whether Congress considered or anticipated the specific application at issue. The limits of the drafters’ imagination supply no reason to ignore the law’s demands. Rather, when the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest— the written law prevails.

(Internal citations and quotations omitted).

In returning the case to the trial court for further consideration, the Seventh Circuit instructed the trial court to determine whether the employer’s policy concerning leave for jury duty rendered such leave “comparable” for USERRA purposes to leave for military service.  To guide the district court’s analysis, the Seventh Circuit specified that it should consider the duration and purpose of the leave as well as the employee’s ability to choose when such leave is necessary.

Bottom Line: Employers should carefully review existing policies concerning paid leave and determine whether such policies should be amended.  If, for example, a jury duty policy offers pay for jury duty without a specific duration, it may be helpful to amend the policy to provide a finite timeframe in which pay will be provided.