On August 22, 2024, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Synoracki v. Alaska Airlines, Inc., reviving a class action under the Uniformed Services Employment and Reemployment Rights Act (USERRA).¹ The case was brought by pilots who served in the Air Force Reserves who were seeking from their civilian employer sick leave and vacation accruals during periods of military leave. The complaint alleges that the class is entitled to accrue vacation and sick leave while on military leave because the airline allowed non-military pilots on sick leave and jury duty to do so. The Ninth Circuit’s decision marks the latest noteworthy pro-USERRA-plaintiff decision calling attention to the issue of whether the act requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences, such as for jury duty, vacation, bereavement, or sick time.

USERRA prohibits employers from discriminating and retaliating against employees or applicants because of their military status or military obligations. USERRA also protects the reemployment rights of individuals who leave their civilian jobs to serve in the military. Pertinent to the short-term paid military leave litigation, USERRA requires employers to provide employees on military leave with the same rights and benefits provided to other employees on comparable non-military related leaves of absence.² Put differently, USERRA requires employers to treat military leave no less favorably than other comparable forms of non-military leave. The U.S. Department of Labor (DOL) has issued a regulation providing guidance for what constitutes a comparable form of leave under USERRA, including a list of non-exhaustible factors to consider.³ Those factors include the duration of the leave, purpose of the leave, and whether the employee can decide when they can take the leave. The DOL regulation also specifies that the service member employee must be given the most favorable treatment accorded to any comparable form of leave when they perform military service.

The issue of whether USERRA requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences has generated a significant amount of litigation across the country in recent years, including the Synoracki class action the Ninth Circuit recently revived. In Synoracki, an airline pilot and former U.S. Air Force Reserve officer who took military leaves of absence during his employment brought a class action suit against the airline alleging the employer violated USERRA when it denied the accrual of sick time during periods of military leave and denied the accrual of vacation time during the first 90 days of military leave. A U.S. district court in Washington granted the airline’s motion for summary judgment, holding the pilots’ military leave was not comparable to other paid short-term leave. The district court emphasized both the frequency and duration of military leave.

The Ninth Circuit has vacated and remanded, finding the district court’s decision was issued before its decision in Clarkson v. Alaska Airlines in 2023⁴ holding that when assessing USERRA claims, comparability of the military leave taken by the service member and other paid leave offered by an employer is to be determined by examining the length of the leave at issue, rather than by using a categorical approach. In ruling that the district court improperly focused on longer leave periods, the Clarkson court concluded that to “follow the district court’s approach and consider military leaves categorically would render USERRA’s protections meaningless.” In Synoracki, the Ninth Circuit explained that “because the allegations and issues in Clarkson are similar to those here, and because the district court did not have the benefit of Clarkson when reaching its decision, we vacate the district court’s order as to Plaintiff’s non-seniority benefits claims and remand such claims for the district court’s reconsideration under Clarkson.” The Ninth Circuit also instructed the district court to consider certifying a narrower, temporally limited class on remand (i.e., the plaintiff can limit the request for recovery of benefits to specific, shorter periods of military leaves).

The federal courts of appeal that have addressed short-term paid military leave under USERRA have unanimously ruled in favor of the USERRA plaintiffs. The Ninth, Seventh, Third, and Eleventh Circuits have all ruled that employers that pay employees for some types of short-term leave must provide equal benefits to employees who take short-term leave for military service.

These decisions favoring service member employees will surely increase attention to unpaid short-term military leave. Employers should pay special attention to the recent circuit court rulings and nationwide trend in the case law. The potential exposure arising from any noncompliant military leave policies is amplified by the fact that USERRA is an often overlooked, yet wide-reaching employment statute. Most significantly, USERRA does not contain a statute of limitations and does not have an exhaustion requirement. Employers confronted with potential USERRA claims could also face reputational damage due to the public’s support for the military and veterans.

Ultimately, these recent USERRA short-term paid military leave decisions and the overall litigation trend across the country underscores that it is a critical time for employers to review their military leave policies. Indeed, employers should consider revising their military leave policies to ensure compliance with these evolving legal requirements, especially if an employer provides paid leave for sick leave, jury duty, bereavement, vacation, and jury duty but not for military service.