Dive Brief:

• The Uniformed Services Employment and Reemployment Rights Act obligates employers to pay workers on military leave if they pay other employees on similar forms of leave, the 3rd U.S. Circuit Court of Appeals ruled (Travers v. Federal Express Corporation, No. 20-2073 (3rd Cir., Aug. 10, 2021)). 
• The 3rd Circuit vacated and remanded an order from a Pennsylvania district court, in which the lower court had ruled a FedEx worker and Naval Reserve member was not owed paid leave under USERRA. The worker claimed he received no compensation from FedEx while he was out fulfilling his reserve duties, despite the company paying employees who miss work for jury duty, illnesses and bereavement.
• Because the plaintiff claimed FedEx pays employees for some leave while declining to compensate him for military leave, the 3rd Circuit vacated the district court's decision. "Best understood," the court opined, "USERRA does not allow employers to treat service members differently by paying employees for some kinds of leave while exempting military service."

Dive Insight:

Enforced by the U.S. Department of Labor, USERRA sets up several workplace protections for individuals who leave jobs to serve in the military, voluntarily or involuntarily. One of the chief rights USERRA protects is an individual's right to be reemployed in a civilian job that was abandoned for uniformed service. 

As the 3rd Circuit highlighted, USERRA also ensures that employees who take military leave will receive the same right or benefit provided to employees who were away from their jobs for other reasons.

In Travers, the parties disputed what the term "right or benefit" entailed. The plaintiff argued the benefit included paid leave, referring to pay received while absent from work. But FedEx argued that it never provided anyone paid leave, but offered "pay for certain specific kinds of time away from the job, such as 'paid sick leave' or 'paid jury-duty leave.'" And the plaintiff sought "paid military leave," per FedEx.

The court cut through the semantics with one question: Did other FedEx employees get something that the plaintiff was denied? "What matters is who gets that benefit," the court opined. "Something the employer offers to Group 2 but denies to Group 1 becomes the comparator for a USERRA differential treatment claim."