In a February 3, 2021 decision by the U.S. Court of Appeals for the 7^th Circuit, a three-judge panel faced the question whether employees on leave for military service, such as reservist training, must be granted the same benefits as are available for other types of leave, such as jury duty and sick leave. The suit, White v. United Airlines, is based on the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA requires that employees who are on leave of absence due to military service must be given the same “rights and benefits” that are given to employees on leave of absence for other, comparable purposes. The plaintiff, Mr. White, is a United Airlines pilot who is also a reservist in the U.S. Air Force.

First, Mr. White needed to show that paid leave is a “right and benefit” of employment protected under USERRA. The Court found that it is. Second, Mr. White needed to show that military leave is comparable to the other leaves of absence for which an employer provides the “right and benefit” of paid leave. Because this is a factual inquiry, the 7^th Circuit has remanded the case back to the Federal District Court to make this determination. Federal regulations at 20 C.F.R. 1002.150(b) list the following factors to determine whether two types of leave are comparable:

• Duration of the leave (the most significant factor)
• Purpose of the leave
• Employee’s ability to choose when to take the leave

While the 7^th Circuit continues with that case, the U.S. Court of Appeals for the 3^rd Circuit taking its turn at this same issue. The Court will soon hear oral arguments in Travers v. FedEx. The plaintiff in this case, Mr. Travers, is a courier with 25 years of employment at FedEx. During his employment, his military leave has included four active-duty deployments between 2002 and 2008, two-week training leave for the Naval Reserve, and shorter periods of leave for required military service. The legal basis and arguments of Mr. Travers’ claim are the same as Mr. White’s.

Stay tuned for the Court’s decision, which will determine whether we have agreement between the Circuits, or whether this is setting the stage for a Supreme Court debate.

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