Ninth Circuit Decision Addresses Pay for Employees Taking Military Leave

In a February 1 decision in Clarkson v. Alaska Airlines, Inc., et al, No. 21-35473 (2023), a Ninth Circuit panel held that the Uniformed Services Employment and Reemployment Rights Act (USERRA), may require employers to offer paid short-term military leave if they offer paid non-military leave for comparable short-term non-military absences. The Clarkson decision addressed the Department of Labor’s implementing regulation for USERRA § 4316(b)(1), which requires that if an employer’s benefits vary by type of leave, an employee who performs military service must be given “the most favorable treatment accorded to any comparable form of leave.” 

While the case has been remanded to the Eastern District of Washington to consider first a separate issue regarding the nature of “pay during leave” under the defendants’ collective bargaining agreements, employers should be aware that, according to the Ninth Circuit’s reasoning, they may be required to offer short-term paid military leave if they offer other forms of short-term non-military paid leave (e.g., jury duty, bereavement, or sick leave). On April 20, 2023, the Ninth Circuit denied the employers’ petition for en banc rehearing. As Section 4316(b)(1) is frequently litigated, and there is arguably a conflict between the Ninth Circuit panel’s reasoning and the Seventh Circuit’s approach to the comparability analysis, there may be a petition for writ of certiorari in this case.

Short-Term Paid Leave at Issue in Clarkson

In Clarkson, a commercial airline pilot and military reservist filed a class action against his employers, Alaska Airlines, Inc., and Horizon Air Industries, Inc., on behalf of all current and former pilots who have taken short-term military leave. Clarkson argued that because the employers provided paid leave for non-military leaves including jury duty, bereavement, and sick leave, under USERRA the employers were also required to pay pilots during short-term military leaves. The district court granted summary judgment in favor of the employers, holding that military leave is not comparable any non-military leave offered by the employers as a matter of law.

The Ninth Circuit reversed, finding that the district court erred by resolving the factors in the comparability analysis and held that comparability is fundamentally an issue for the jury, not the court. In doing so, the Court left the door open as to whether short-term non-military leaves offered by an employer are comparable to short-term military leave. However, the Court held that a reasonable jury could find that some or all of the non-miliary leaves offered by the employers are comparable to short-term military leave.

Guidance from the Ninth Circuit’s Decision – Three Factors

In Clarkson, the Court addressed the three comparability factors outlined in the USERRA implementing regulation – duration of leave, purpose of leave, and the ability of the employee to choose when to take the leave (control).

  1. Duration – The Clarkson Court noted that comparing non-military leaves offered by the employers to all military leaves was not the proper comparison. Rather, the Court found that the USERRA implementing regulation suggests that only the military leave at issue should be compared with the comparable non-military leaves. In its analysis of this factor, the Court presented a hypothetical comparing two-day funeral leave to two-day military leave and noted that it is “entirely possible” that such short-term non-military leave is comparable to short-term military leave. The Clarkson Court emphasized that duration of the leave is the most important factor in the comparability analysis, but that frequency with which employees may take short-term military leave is not relevant to duration. The Court noted that an employer is only required to provide equal treatment, not preferential treatment to servicemembers. For example, the Court observed that if an employer provides only three days of paid bereavement leave per year, that is all the employer would be required to pay the servicemember.
  2. Purpose – Under the USERRA implementing regulation, the second consideration in the comparability analysis is whether the purpose of the short-term military leave is comparable to the purpose of short-term non-military leaves. The employers argued that the purpose of short-term military leave is to allow employees to purpose parallel careers, whereas Clarkson argued that the purpose is to perform a civic duty and public service (i.e., similar to the purpose of jury duty.) In this case, the Court held that the issue was one for the jury to decide.
  3. Control – The last factor in the comparability analysis is the level of control the employee has over when to take the short-term military leave. In Clarkson, the employers argued that, unlike jury duty or bereavement leave, the pilots had a great deal of flexibility to schedule their military duty so that it does not conflict with the employers’ work schedules. However, based on the evidence presented, the Court concluded that a jury could find that pilots’ level of control over their military duty is comparable to their level of control over other types of leave.

Next Steps for Employers

As the Clarkson court noted, USERRA requires only equal treatment of employees who take military leave – not better treatment. While it is unclear how this case will come out on remand, employers in the Ninth Circuit who offer other forms of short-term non-military paid leave, such as sick leave, bereavement leave, or jury duty leave, should be aware that they may be required to pay an employee requesting comparable military leave. Employers should review their leave policies and consider the comparability factors of duration, purpose, and control in determining whether an employee taking military leave should be paid. Employers should also be sure to review applicable state military leave statutes, which may require paid military leave in some instances.


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