Hey, I know a good management-side employment lawyer!
What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that protects servicemembers’ and veterans’ civilian employment rights. USERRA guarantees reemployment rights for employees who leave to perform service in the uniformed service in many situations.
A person who is reemployed is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.
Do “rights and benefits” include paid military leave?
Funny enough, until recently, no federal appellate court had answered this question. Then, a few weeks ago, the Seventh Circuit weighed in with this opinion.
Relying upon this Department of Labor interpretation of USERRA, the court concluded that the definition of “rights and benefits” under USERRA embraces paid leave. Therefore, an employer must provide paid military leave just as it provides paid leave for other comparable absences.
How does this play out in the real world?
Let’s say that your company pays employees for brief absences, like for jury duty or bereavement leave. If short-term military leave is comparable, that must be paid leave.
So, what’s comparable? The key factor is the length of the leave. For example, if you pay for two days of jury duty, you may need to pay for two military leave days. However, a two-day funeral leave will not be “comparable” to extended leave for service in the uniformed service. In addition to comparing the duration of the absences, you’ll need to consider other factors such as the purpose of the leave and the employee’s ability to choose when to take the leave.
Well, at least if you operate in Indiana, Illinois, or Wisconsin (i.e., the Seventh Circuit).
As for the rest of you, don’t take legal advice from an employment law blogger — even if he is an employment lawyer. Call (and pay) your employment lawyer for advice.