By: Bradford J. Kelley*
Abstract
Those who serve in the military in the National Guard or Reserves must balance civilian life in addition to their service duties, including time away from a civilian job. To help service members strike that balance, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA protects service members from workplace discrimination based on their military service or affiliation. The law also provides employees with a variety of leave entitlements for absences related to military service. However, courts remain unclear as to whether USERRA requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences, such as for jury duty, sick time, vacation, or bereavement. Although USERRA does not impose a general mandate for employers to pay all service members taking military leave, it does mandate service members be treated equally to other workers. Notwithstanding this requirement, many companies do not provide service members with paid leave when they take short-term military leave even when they do provide paid leave to workers taking similar forms of nonmilitary leave.
This Article argues that USERRA’s plain language, purpose, history, and implementing regulations require employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences. First, this Article begins by exploring the genesis of employment law protections for service members, including the early history of these laws and their original purpose. Next, this Article examines specific USERRA, regulatory, and state law protections relevant to the military short-term paid leave debate. The Article then shifts to examining the application of these authorities by courts and identifies some of the salient coverage gaps created by judicial precedents. Finally, this Article asserts that USERRA mandates short-term paid military leave contrary to these precedents and offers some positive suggestions on how to ameliorate these pay disparities in the future.
*Bradford J. Kelley is Chief Counsel to U.S. Equal Employment Opportunity Commission (EEOC) Commissioner Keith E. Sonderling and an adjunct professor at The Catholic University of America’s Columbus School of Law. Prior to joining the EEOC, he was a Senior Policy Advisor in the U.S. Department of Labor’s Wage and Hour Division. Before becoming an attorney, Bradford was a U.S. Army infantry and intelligence officer; he is also a veteran of the Iraq War. The views and opinions set forth herein are the personal views and opinions of the author and do not necessarily reflect views or opinions of the EEOC or any Commissioner.