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3rd Circuit reinstates FEDEX USERRA case…

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3rd Circuit reinstates FEDEX USERRA case…

Old 08-12-2021, 02:10 PM
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Default 3rd Circuit reinstates FEDEX USERRA case…

Reversed and remanded summary judgment…

https://www.courthousenews.com/wp-co...leaveFedEx.pdf







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OPINION OF THE COURT _______________
MATEY, Circuit Judge.
Those who serve in the military must also balance civilian life, including time away from a civilian job. To help servicemembers strike that balance, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). Gerard Travers appeals the dismissal of his lawsuit alleging that USERRA requires employers like FedEx to pay reservists for short-term military leave. We conclude the best reading of USERRA directs employers to provide the benefit of compensation when they choose to pay other employees for comparable forms of leave. So we will vacate the contrary order of the District Court.
3

I. BACKGROUND
Travers served in the United States Navy and the Naval Reserve. He also works for FedEx and fulfilled his Reserve duties during leaves from work. Travers received no compensation from FedEx for those absences because the company does not pay employees for military leave. But FedEx does pay employees who miss work for other reasons, like jury duty, illness, and bereavement, to name a few. Relying on USERRA, Travers challenged FedEx’s decision. The District Court dismissed Travers’s complaint, concluding that paid leave was not a “right and benefit” under USERRA. Travers now appeals.1
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Old 08-12-2021, 02:46 PM
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A 3rd U.S. Circuit Court of Appeals panel unanimously held that paid leave is a "right and benefit" under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), meaning employers must provide it to servicemembers in the same manner as it is granted to other workers.

The court revived a proposed class action brought by FedEx employee and Navy reservist Gerard Travers, who says the company paid workers who took leave for jury duty, bereavement, and health reasons, but denied employees paid leave when they were fulfilling military duties.

Memphis-based FedEx and its lawyers at O'Melveny & Myers did not immediately respond to requests for comment. Nor did Travers' lawyers at Gupta Wessler.
https://www.reuters.com/legal/transa...rc-2021-08-10/
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Old 08-13-2021, 05:59 AM
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National Law Review article on this issue:

https://www.natlawreview.com/article...-paid-leave-to


Current legal references

1 White v. United Airlines, Inc., 987 F.3d 616, 627 (7th Cir. 2021).
2 38 U.S.C. § 4316(b)(1) and 20 C.F.R. § 1002.7(c).
3 While the Seventh Circuit refused rehearing in White, the time has not yet run for a discretionary appeal to the U.S. Supreme Court through a petition for a writ of certiorari.
4Hoefert v. Am. Airlines, Inc., 438 F. Supp. 3d 724, 739 (N.D. Tex. 2020).
5Id.
6Moss v. United Airlines, Inc., 420 F. Supp. 3d 768, 775 (N.D. Ill. 2019).
7 See, Huntsman v. Sw. Airlines Co., No. 19-CV-00083-PJH, 2021 WL 391300, at *7 (N.D. Cal. Feb. 3, 2021), and note that the Ninth Circuit Court of Appeals declined to entertain Southwest’s appeal from the district court’s class certification decision without opinion on March 10, 2021, in Jayson Huntsman v. Southwest Airlines Co., 21-80010 (stating simply, “[t]he court, in its discretion, denies the petition for permission to appeal the district court’s February 3, 2021 order granting class action certification..”).

The Seventh Circuit Decision in White

While the Seventh Circuit did not hold that United must pay for military leave, it did reverse the District Court’s dismissal and remand the case for the comparability analysis that it found the District Court had prematurely cut off. The Appellate Court rejected the District Court’s conclusion that providing the United pilots with the same rights and benefits associated with other comparable leave would amount to a de facto mandate to provide paid military leave, noting that “USERRA mandates only equality of treatment; it does not specify how generous or how parsimonious an employer’s paid leave policies must be.” So, for example, an employer that provides no paid leave is not required to provide paid military leave; USERRA only requires employers to provide paid military leave if they provide paid leave in other comparable nonmilitary leave settings.
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Old 08-13-2021, 06:09 AM
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I don't get why airlines continue to press-to-test on this. It seems pretty clear to me.

Offer paid pregnancy leave, or whatever, gotta pay the reservists too. It's in black and white.
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Old 08-13-2021, 07:40 AM
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Originally Posted by rickair7777 View Post
I don't get why airlines continue to press-to-test on this. It seems pretty clear to me.

Offer paid pregnancy leave, or whatever, gotta pay the reservists too. It's in black and white.
And yet United, SWA, and FedEx are all fighting this in different circuit court venues…
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Old 08-14-2021, 06:44 PM
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I read some briefs on these, but no where did I find what qualified as “short term leaves”.

The problem with the other compensations (maternity leave, sick leave, etc.), are that they are singularly compensated, where as someone signing up for a 6 month IA would be getting paid twice. There should be some kind of limit it would seem, otherwise the companies would have a large portion of their employees entirely absent and having to pay them for that absence.

The White case addresses this somewhat in the sense that it is not an affirmative decision that employers must pay during mil leave, but leaves it open to argue the context of how much mil leave is comparable to other paid leaves.

Last edited by ThumbsUp; 08-14-2021 at 06:57 PM.
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Old 08-15-2021, 01:49 AM
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A fair amount of civilian employers if not fully paid on leaves, make up the difference between your normal take home and your military take home.

Unscientific poll sure, but it seemed to be around half of the reservists I was deployed with had something along that line.

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Old 08-15-2021, 06:16 AM
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Originally Posted by CX500T View Post
A fair amount of civilian employers if not fully paid on leaves, make up the difference between your normal take home and your military take home.

Unscientific poll sure, but it seemed to be around half of the reservists I was deployed with had something along that line.
Half sounds about right. A lot of those are .gov
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Old 08-15-2021, 06:18 AM
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Originally Posted by CX500T View Post
A fair amount of civilian employers if not fully paid on leaves, make up the difference between your normal take home and your military take home.

Unscientific poll sure, but it seemed to be around half of the reservists I was deployed with had something along that line.

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Yeah, I’m aware of that. The difference is that those examples are on the goodwill of the employers to provide equivalent pay (with the exception of federal employees as this is a different law), while the navy case is an interpretation of the law to receive double pay.
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Old 08-15-2021, 07:21 AM
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Originally Posted by ThumbsUp View Post
Yeah, I’m aware of that. The difference is that those examples are on the goodwill of the employers to provide equivalent pay (with the exception of federal employees as this is a different law), while the navy case is an interpretation of the law to receive double pay.
I'd be OK with a "make whole" provision, ie bring net pay up to what the member normally makes. I don't think we really need to guarantee a right to double dip... the basis for the law is equivalency to other types of leave, and no other leave provides a double dip.
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