by Elizabeth Bowersox

Thanks to a recent ruling by the U.S. 9th Circuit Court of Appeals (which covers employers in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), Alaska Airlines now faces a jury trial in a class action claim that it discriminated against pilots who took military leave.

Background

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 military 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, it 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.

Reservist Sues Airline for USERRA Violations

Casey Clarkson, an Alaska Airlines pilot leading the class action lawsuit, sued in January 2019, alleging he and other pilots were owed pay for their past military leaves of absence. He argued 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 the leaves of absence weren’t comparable and granted summary judgment (dismissal without a trial) in Alaska Airlines’ favor.

Appeals Court Overturns, Sends Case to Jury Trial

The 9th Circuit reversed the trial court’s decision, finding a jury trial is appropriate. It 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 appeals court also took issue with Alaska Airlines' argument that pilots would purposefully take more frequent military leave if it were paid as a reason to find for the employer. The 9th Circuit’s opinion focuses on the purpose of USERRA to support, rather than penalize, service members.

The 9th 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 3rd (which covers employers in Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands) and 7th Circuits (which covers employers in Illinois, Indiana, and Wisconsin) both ruled in 2021 that paid leave falls within the rights and benefits of the statute. Each court, however, left a jury to determine if the types of leave the employer offered were comparable. Clarkson v. Alaska Airlines, Case No. 21-35473 (9th Cir., 2/1/23).

Employer Considerations

With a lack of guidance from the U.S. Supreme Court, the 8th (which covers employers in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), or the 10th Circuit (which covers employers in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), 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. For example, since April 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.

Elizabeth Bowersox is an attorney in McAfee & Taft’s Oklahoma City, Oklahoma, office where her practice focuses on the representation and counseling of employers and managers with regard to sexual harassment and the #MeToo movement, workplace violence, whistleblower retaliation, diversity and inclusion, and website accessibility. In addition to her traditional legal work, she also acts as an independent outside investigator for businesses investigating allegations of discrimination, harassment, ethical issues, FLSA wage and hour issues, or workplace misconduct. She may be reached at elizabeth.bowersox@mcafeetaft.com.