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In August 2024, pilots employed by Alaska Airlines and members of the Air Force Reserves scored a major victory in a federal appeals court. In Synoracki v. Alaska Airlines, Inc., the U.S. Court of Appeals for the Ninth Circuit revived the pilots’ class action against their employer, where they argued for accrued sick leave and vacation time while on military leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

This is just one of many cases where the courts have signaled that service members should receive similar leave benefits as other employees. Businesses that employ veterans across any industry need to be aware of these decisions and the requirements of the federal law that enumerates those employment and re-employment rights – USERRA. Failure to understand and comply with the provisions of USERRA can result in significant legal and financial penalties.

USERRA, enacted in 1994, protects civilian employment and re-employment rights and prohibits employment discrimination and/or retaliation against employees who serve or have served in the uniformed services, including those who have applied for the U.S. military. USERRA applies to virtually all public and private employers.

USERRA defines uniformed services as the active and reserve components of the U.S. Army, Navy, Marine Corps, Air Force, Coast Guard; Army National Guard and Air National Guard; Commissioned Corps of the Public Health Service; any category of persons designated by the President in times of war or emergency, including FEMA reservists deployed to major disaster sites (Civilian Reservist Emergency Workforce Act of 2021); and now includes Space Force.

Under USERRA, service members who leave civilian employment to perform covered military service are generally entitled to be reemployed in their previous positions, or as nearly comparable a job as possible, with their pre-service employer. This typically includes reinstatement with the same seniority, status, and pay they would have attained had they remained continuously employed. Notably, in some cases, a service member may also be entitled to the elevated position that they would have attained with reasonable certainty if not due to their absence because of service. (“20 CFR 1002.191” refers to a section of the U.S. Code of Federal Regulations that outlines the “escalator principle.”) 

While reemployment rights generally only apply if the absence from the company does not exceed five years with the same employer, employers are permitted to extend that timeline as a policy at their own discretion. What qualifies as “covered military service” is very specific, and not all service obligations are covered by USERRA’s protections. Further complicating the matter, certain periods of active-duty military service are NOT included when calculating the cumulative military service, including service under a statutory and secretarial exemption.

Recent Court Decisions Should Heighten Employers’ Awareness of USERRA 

As mentioned in the opening, a major question around USERRA is should employees on military leave be entitled to the same non-seniority benefits provided to other employees on comparable non-military-related leaves of absence?

That answer is ‘Yes’, according to the U.S. Court of Appeals for the Ninth Circuit in Synoracki v. Alaska Airlines, Inc., where they found employees on military leave are entitled to the same non-seniority benefits provided to other employees on comparable non-military related leaves of absence. Over recent years, the Ninth Circuit is one of several courts to side with USERRA plaintiffs as the courts are increasingly recognizing that the rights of service members should be comparable to those provided to non-veteran employees.

For example, in Travers v. Federal Express Corp., the plaintiff worked for FedEx and fulfilled his U.S. Navy and Naval Reserve duties during leaves from work, but received no compensation for those absences because the company does not pay for military leave. But FedEx does pay for other reasons, like jury duty, illness, and bereavement. The U.S. Court of Appeals for the Third Circuit overturned a district court decision and held that paid leave is a “right and benefit” under USERRA and that employers must provide pay to employees on military leave if they provide pay to employees absent for other reasons like jury duty, illness, and bereavement.

Another USERRA decision was a costly lesson for the Texas Department of Public Safety when an Army reservist received a $2.49 million jury verdict. In LeRoy Torres v. Texas Department of Public Safety, LeRoy Torres, a Texas state trooper and Army reservist, was exposed to toxic burn pits during his deployment to Iraq. Upon returning, he developed respiratory issues that prevented him from performing his duties as a trooper. Torres requested a new position that accommodated his disability, but the Texas DPS denied him. Torres sued under USERRA, claiming the DPS violated his rights by failing to reasonably accommodate his service-connected disability. The State of Texas argued sovereign immunity, but the U.S. Supreme Court ruled that states do not have immunity from USERRA lawsuits due to the federal government's broad war powers. In 2023, a Texas jury unanimously awarded Torres $2.49 million in damages.

How Businesses Can Be Proactive to Comply with USERRA

  • Reach out to expert legal counsel: USERRA is complex and can involve intricate legal nuances that require professional guidance. Ensure compliance and proper interpretation.
  • Develop a written, clear, and comprehensive USERRA policy: This policy should outline employee rights and employer responsibilities regarding military leave, reemployment, and discrimination. Legal counsel can help draft and review said policy.
  • Address key areas and rights under leave of absence: Establish procedures for requesting and approving military leave. For example, USERRA requires an employee to provide notice to their employers of their military service obligations and advance notice of military service, except when notice is prevented by military necessity. It is important for both employers and employees to understand these expectations and outline the continuation of benefits during military service.
  • Provide training to HR managers: Employers should provide training for managers and human resources personnel on USERRA requirements. Also, regularly communicate with employees about their rights and responsibilities under USERRA.
  • Implement reasonable accommodation: Employers are required to make reasonable accommodation for service members with disabilities incurred during their service.
  • Maintain records: Employers must maintain accurate records of employee military service and reemployment efforts.

Conclusion

USERRA is a landmark, federal legislation that protects veterans with civilian employment rights. Recent court decisions have emphasized not only the need for employers to be familiar with USERRA provisions, but also the need for employers to realize that they may need to evaluate their current leave policies and be prepared to treat military benefits comparably to other forms of leave and benefits, or face possible consequences from the legal system.

It's important for employers to be proactive and not reactive to USERRA. Consult with legal counsel to ensure compliance with all applicable USERRA laws and regulations. By adhering to these guidelines, businesses can not only fulfill their legal obligations but also demonstrate their support and the suitable workplace environment for those who have served their country.

About Our Authors

Tyler Conklin is a labor and employment attorney and leading member of the Adams and Reese Aviation and Aerospace Team  within the law firm’s Intersection of Business and Government Practice. Prior to joining Adams and Reese she worked for an international cargo carrier and served as the representative to Airlines for America USERRA working group. She has substantial experience providing comprehensive legal advice on compliance, risk management, and strategy across diverse aspects of aviation business and operations. Tyler is experienced in risk analysis, contract negotiation, sophisticated internal investigations, legal compliance, HR and Legal policy creation, disciplinary actions, and union relations.

Sean Buckley is a corporate services attorney in the Houston office and a veteran U.S. Navy Officer. Sean advises clients in the purchase and sale of equity and assets, in a diverse array of industries, real estate transactions, entity selection and formation, corporate governance, and franchise opportunity matters.

John Woods is a member of the Adams and Reese Financial Services Group, and a former infantry officer in the U.S. Army National Guard. Practicing in the firm’s Memphis office, John represents corporate clients in commercial litigation, business disputes, and insurance defense litigation that encompasses professional liability claims, mostly in health care and real estate. He is an experienced trial and appellate attorney.

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