Hunton Retail Law Resource

In a February 3, 2021 decision, the US Court of Appeals for the Seventh Circuit determined that the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) may require employers to provide employees with short-term paid military leave. Specifically, if an employer provides short-term paid leave for other comparable purposes such as sick time, jury duty, or bereavement, then the employer may need to do the same for military leave.

The case, White v. United Airlines, was brought as a class action by a United Airlines pilot who was on reserve duty for the US Air Force.  He had taken multiple short-term leaves for his military service during his employment and argued that those leaves should have been paid. The company’s policy provided paid leave for jury duty and paid sick leave, but not military leave. A three judge panel of the Seventh Circuit determined that the “rights and benefits” of employment that USERRA protects include paid leave. It remanded to the district court to determine whether the types of paid leave that United provided to its employees are comparable to military leave, considering (i) the duration of the leave; (ii) the purpose of the leave; and (iii) the ability of the employee to choose when to take leave.

All employers, and particularly those in the retail industry, should be mindful of the holding in White, the further analysis that will emerge from the district court, and the evolving law on this topic.  District courts across the country have rendered mixed decisions regarding whether USERRA requires employers to provide paid leave, and similar class actions are pending in multiple states. This litigation activity could well result in split decisions among the courts of appeals. Retailers should take action now by partnering with counsel to determine the potential for liability under their current policy and to make necessary revisions to mitigate liability in the future.