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Third Circuit Agrees “Paid Leave” Included in Rights and Benefits Under USERRA

Gerard Travers serves in the Naval Reserve. The Naval Reserve requires service members to participate in periodic military training. To comply with his military obligations, Travers took brief military leaves from his position with Federal Express (FedEx). He did not receive compensation from FedEx while on military leave. However, FedEx does pay employees who miss work for other reasons including jury duty, illness, and bereavement. Travers filed suit against FedEx under the Uniformed Service Employment and Reemployment Rights Act (USERRA) because of his unpaid military leave.

The Third Circuit Court of Appeals reviewed the dismissal of Travers’s claim by the federal district court. USERRA entitles employees taking military leave to the “other rights and benefits their employers give to employees taking similar kinds of leave.” The statute defines “rights and benefits” as “terms, conditions, or privileges of employment including any advantage, profit, privilege, gain, status, account, or interest” accruing to the employee. FedEx argued that the “benefit” at issue should be construed as “paid military leave” rather than any other paid leave. The court rejected this argument, finding it an incorrect assessment of USERRA’s text. The court concluded, “USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.” The appellate court charged the district court with determining whether the other paid leave provided by FedEx was comparable to military leave. The Third Circuit’s decision is just the second on this issue from a federal circuit court. The Seventh Circuit Court of Appeals reached the same decision.