19 Jul Circuits Trending Towards Requiring Paid Military Leave Under USERRA
On June 8, 2023, the 11th Circuit Court of Appeals held that military leave is comparable to paid administrative leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). In doing so, the 11th Circuit joined the 3rd, 7th, and 9th Circuits in holding employers must pay for military leave if they would pay for the non-military leave of a similarly situated employee.
Under USERRA, employees on military leave must receive the same rights and benefits as similarly situated employees on non-military leave. Accordingly, if an employee on non-military leave would be paid, a similarly situated employee on military leave must be paid. In the 11th Circuit case, Myrick v. City of Hoover, Alabama, four police officers sued their employer asserting that they were entitled under USERRA to be paid for the duration of their military leave because, among other things, other police officers in the department were placed on paid administrative leave during the pendency of an investigation for up to 599 days.
In reviewing the claim, the 11th Circuit rejected the employer’s argument that the plaintiffs were similarly situated to employees on unpaid leave, as opposed to employees on paid leave. According to the Court, it is irrelevant under USERRA as to whether an employer classifies an employee’s military leave as paid or unpaid. Instead, the only relevant consideration is whether the factors enumerated in 20 C.F.R. § 1002.150(b) show that military leave is comparable to paid administrative leave. Those factors are the following: (1) the duration of the leave; (2) the purpose of the leave; and (3) the ability of employees to choose when to take leave.
In applying the factors, the Court found that military leave for police officers was sufficiently comparable to paid administrative leave for police officers, and the City of Hoover was therefore required to pay the plaintiff officers for their military leave. First, as to duration, the Court found that the employer kept officers on paid administrative leave for up to 16 months, which was similar to the length of the plaintiff’s leave for military service. Second, the Court found that the purpose of both leaves was similar, being to shield employees from unnecessary hardship and to comply with the law. Finally, the Court found that the leaves were similar in that a police officer placed on paid administrative leave due to an investigation could not control the timing of when they went on leave much like a service member could not control when they were called to active duty.
The 11th Circuit’s holding continues a trend of courts holding in favor of employees bringing claims for paid leave under USERRA. While the 6th Circuit has not yet ruled on the issue, nor has any Michigan state courts, we should be mindful in advising employers about whether they are required to pay employees for military leave, in light of these recent decisions. Specifically, we should consider whether payment for a given military leave is required under USERRA by comparing the military leave and non-military leave using the factors set forth in 20 C.F.R. § 1002.150(b) and reviewing employer’s policies and practices with respect to providing non-military paid leave. And, as was the case with Myrick, even lengthy non-military leaves like 16-month administrative leaves are fair game for being considered a comparator to military leave.