Legal Update: Paid Military Leave Suits Continue to Capture Attention
Labor & Employment 11/16/22 Robert H. Duffy, Brenna M. Wildt
Since the Seventh Circuit rendered its 2021 groundbreaking decision in White v. United Airlines, Inc., et al.—becoming the first federal appellate court to hold that employers may need to pay employees who take leave pursuant to Uniformed Services Employment and Reemployment Rights Act ("USERRA")—dozens of federal courts, including the Third Circuit, have issued decisions involving such claims. Thus far, no specific group of employees has been awarded a final judgment granting military leave pay, but as the cases are working their way to final resolution, it has become clear that potentially valid paid military leave claims may be brought against employers who cannot distinguish paid leave provided in non-military settings from that sought for military service absences. A few of the significant recent decisions addressing these claims are discussed below.
Won v. Amazon.com, Inc. et. al.
On August 22, 2022, the U.S. District Court for the Eastern District of New York denied Amazon’s motion to dismiss a class action suit initiated by Caonaissa Won, a former Amazon employee and Army reservist.
Ms. Won worked at an Amazon warehouse for approximately two months in 2019, during which time she was an active-duty member of the United States Army Reserve. As an Army reservist, Ms. Won was required to participate in periodic mandatory trainings. During her brief employment with Amazon, Ms. Won took two military leaves of absence (the first leave was 10 days and the second leave was 15 days) to complete these trainings. Although Amazon informed Ms. Won that she was not entitled to full pay while out on military leave, it did provide her with differential pay during that time; i.e., her normal wages from Amazon minus the pay she received from the Army.
Ms. Won filed suit in May 2021, claiming that USERRA entitled her and other similarly situated individuals to full pay, rather than differential pay, during military leaves from Amazon. Ms. Won alleges that since 2004, Amazon has refused to pay workers who take 30 days or less of military leave, while it covers the wages of employees who take comparable short-term, non-military leaves, like jury duty, sick or bereavement leave. Ms. Won’s class action suit seeks to represent an estimated 8,000 similarly situated employees dating back to October 2014.
Amazon moved to dismiss the litigation on multiple grounds, including that USERRA does not mandate any paid leave for military service, and that even if it does, the non-military leave benefits Amazon provides are not comparable to military leave. As an initial matter, the Court determined that paid military leave is a benefit protected by USERRA (citing the Seventh Circuit’s decision in White v. United Airlines, Inc., et al.), and therefore employees are entitled to it if provided to employees on comparable non-military leaves. In analyzing whether Amazon provides the same benefits to employees on military leave as it does to employees on comparable non-military leaves, the Court found Ms. Won’s comparison between military leave and jury duty leave to be the “most salient” of those included in her complaint. It then found Amazon’s jury duty leave was comparable in both duration and controllability to the military leave requested.
Concerning duration, the Court noted that both leave types generally last less than 30 days and have the possibility to stretch for an extended period of time. In finding the two leaves comparable in duration, the Court also rejected Amazon’s argument that the frequency of military leave rendered it noncomparable to jury duty. Concerning controllability, the Court determined that with both military and jury duty leave employees don't know when they will be out of work, and that like jury duty leave, “[m]ilitary leave is compulsory” because “guardsmen have no individual voice in selecting the weeks they will be on active duty.” In finding the leaves comparable in controllability, the Court also rejected Amazon’s argument that military leave was different than jury duty leave because military leave was due to an employee’s voluntary decision to be a member of the military, as opposed to jury duty which was a mandatory obligation which the employee had no option to decline.
Finding that granting Amazon’s motion to dismiss would penalize service members for joining the military—going against USERRA’s purpose—the Court denied Amazon’s motion to dismiss and allowed the litigation to proceed as necessary for the Court to finally determine whether both types of leave were indeed comparable.
On November 1, 2022, Amazon filed a motion for certification of an interlocutory appeal—asking the Second Circuit to decide whether paid leave is a benefit protected by USERRA, as this is an issue of first impression in the circuit. In its motion, Amazon argues that “[i]t would be of great value to employers in this circuit (and all future litigants) to resolve the issue now … .” Ms. Won opposes the motion, arguing that any interlocutory appeal will more likely slow down the litigation than advance it, and that it would derail other paid military leave suits currently being litigated in the circuit.
Clarkson v. Alaska Airlines Inc. et al.
We reported earlier this year on a military leave suit in which the U.S. District Court for the Eastern District of Washington rendered summary judgment in favor of Alaska Airlines. The Court’s May 24, 2021 ruling dismissed the class-wide allegations of Alaska Airlines pilot, Casey Clarkson, who claimed the airline violated USERRA when it opted not to pay employees full wages while on military leave, but did so for employees during other types of leave, including vacation, bereavement, sickness and jury duty leave. The Court’s decision was based on its finding that military leave was not comparable in duration, purpose and voluntariness to the other paid leaves provided by Alaska Airlines.
Mr. Clarkson filed a timely appeal of the District Court’s decision and on October 21, 2022, a three-judge panel of the Ninth Circuit heard oral arguments on the case. When it rules, the Ninth Circuit is positioned to become the third federal appeals court to decide whether employers violate USERRA by denying regular wages to pilots on military leave while offering paid leave to employees who are sick, grieving or serving jury duty.
Scanlan v. American Airlines Group Inc.
In another military leave case we reported shortly after it was filed, the U.S. District Court for the Eastern District of Pennsylvania has just granted summary judgment in favor of American Airlines. There, a class of pilots led by James Scanlan asserted that American Airlines improperly treated military leave as different than jury duty or bereavement leave, including by refusing to pay for short-term military leave or crediting short-term military leave in its profit-sharing plan. In its November 1, 2022 decision, the District Court tossed the case out based largely on a finding that the pilots took military leave more frequently than they took jury duty or bereavement leave; specifically—each year the pilots took an average of 21.9 days of military leave, but only took an average of 3.1 days of bereavement leave and 2.3 days of jury duty leave. The court also found that because pilots have more control over when they take military leave, and because they receive more than minimal government pay (and sometimes a pension), military leave is not comparable to bereavement or jury duty leave.
An appeal of the District Court’s decision is expected.
Key Takeaways for Employers
Given the number of paid military leave cases now being filed, employers should be prepared to defend any decisions denying paid military leave to their employees. As a part of doing so, employers must determine whether their paid leave available to employees in a non-military setting (specifically including jury duty leave) is “comparable” in duration, purpose and controllability to military leave. If it is, employers should consider revising their policies as appropriate to ensure compliance with USERRA.
Quarles & Brady stands ready to help with the highly specific, multi-factored analysis related to paid military leave issues, and to suggest any changes needed as may be necessary for an employer to comply with military leave requirements under USERRA. If you are interested in such assistance, please contact your local Q&B attorney or: