Since the enactment of the Uniformed Services Employment and Reemployment Rights Act (USERRA) in 1994, employees serving in the military have been entitled to protected leave, seniority rights, and similar rights and benefits afforded to employees on comparable non-military leave when called to service. In recent years, there has been litigation across the nation regarding what rights and benefits military employees are entitled to when comparing USERRA leave with non-military leave, such as receiving paid leave or accruing paid time off.

Previously, it was common for employers to compare all military leave to furloughs or unpaid leave. Under this comparison, an employee on military leave is entitled to the same rights and benefits as an employee who is furloughed or provided extended unpaid leave. Generally, this allowed employers to provide employees taking leave under USERRA with unpaid leave and prohibit the accrual of paid time off during military leave. However, recent cases within the Ninth Circuit make it necessary for employers to revisit how they treat USERRA leave.
For example, in 2023, the Ninth Circuit decided that under USERRA, short-term military leave (30 days or less) should be compared to other leave benefits of similar length when determining rights and benefits of employees serving in the military. As a result, instead of comparing a two-day military leave to a furlough, it may be comparable to a two-day funeral leave. Clarkson v. Alaska Airlines, Inc., 59 F.4th 242 (9th Cir. 2023). The Ninth Circuit joined the Third, Seventh, and Eleventh Circuits by now allowing military employees to argue they were improperly denied rights and benefits provided to non-military employees on leave by comparing their rights and benefits to leave of similar length or duration, such as paid sick, jury duty, or bereavement leave.

More recently, on August 22, 2024, the Ninth Circuit ordered reconsideration of a class action lawsuit alleging that the employer deprived military employees from accruing paid sick and vacation leave while on military leave because non-military employees on sick and jury duty leave are allowed to accrue sick and vacation leave. Synoracki v. Alaka Airlines, Inc., 9th. Cir., No. 22-35504, unpublished 08/22/24.

For Hawaii employers, this means that when providing leave pursuant to USERRA, a careful review of other leave policies of similar length or duration, such as sick, jury duty, bereavement, funeral, or vacation leave should take place prior to determining if the military leave should be paid or unpaid, and whether the employee is entitled to other rights and benefits, such as accruing paid time off during their military leave. In addition, employers should consider how providing these rights and benefits might affect their budget, check payroll systems to ensure paid leaves are accruing properly and consider how comparable leave policies affects rights of employees on military leave.
If you have any questions regarding USERRA or employee leave benefits, please contact your HR Consultant or our HR Hotline.

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