Class Motion Lawsuits Problem Employers’ Army Depart Practices

Two federal courts have allowed class actions to proceed in opposition to employers underneath the Uniformed Providers Employment and Reemployment Rights Act (USERRA). In Baker, an employer supplied paid go away to staff taking jury responsibility, bereavement, or sick go away however didn’t present related paid go away for workers taking short-term go away to have interaction in USERRA certified army service (e.g., with the Military Reserve). An worker sued on behalf of himself and different servicemember staff who had taken army go away lasting 14 days or much less, in search of (1) a declaration that the employer violated USERRA by not offering pay throughout short-term army go away, (2) an order requiring the employer to pay for such go away sooner or later, and (3) an order for again pay. The employer argued that USERRA doesn’t require fee of wages when no work is carried out and that army go away isn’t similar to the opposite types of go away supplied by the corporate. However the courtroom allowed the case to proceed as a believable assertion of a USERRA violation, explaining that staff who take army go away from their jobs should obtain the identical rights and advantages which might be supplied to staff absent for different causes, and that USERRA have to be broadly construed in favor of servicemembers.

Equally, in Haley, a bunch of servicemember staff sued their employer for denying pay to staff on short-term army go away (e.g., for certified army service within the Air Drive Reserve or Nationwide Guard) whereas offering paid sick go away, bereavement go away, and break day for jury responsibility. The employer requested the courtroom to dismiss the case, arguing that (1) USERRA doesn’t require preferential therapy for reservists, (2) USERRA protects solely present rights and advantages—it doesn’t require the creation of recent ones, and (3) USERRA’s statutory language confirms that Congress didn’t intend to require employers to pay reservists throughout army go away. The courtroom was unpersuaded, concluding that the workers had made a believable assertion of a USERRA violation as a result of equal therapy exists provided that staff on short-term army go away have the identical rights and advantages as staff in comparable conditions.

EBIA Remark: As famous in each opinions, no less than two federal appellate courts have decided that pay throughout go away is a “proper and profit” protected by USERRA. Employers offering paid go away for non-military causes ought to seek the advice of with counsel earlier than denying pay throughout short-term army go away. It’s also necessary to do not forget that staff on army go away usually have a proper underneath USERRA to elect to proceed employment-based group well being plan protection for themselves and their lined dependents. That is along with any continuation rights underneath COBRA. For extra info, see EBIA’s Group Well being Plan Mandates guide at Sections XVIII.D (“USERRA’s Continuation Necessities for Well being Plans”) and XVIII.Okay (“Different Necessities Relating to USERRA Depart”). See additionally EBIA’s COBRA guide at Part XXXVI (“Uniformed Providers Employment and Reemployment Rights Act (USERRA)”).

Contributing Editors: EBIA Employees.