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Ninth Circuit announces new standard for assessing whether military service members are entitled to benefits under USERRA.

February 2, 2023


The Uniformed Services Employment and Reemployment Rights Act (USERRA) recognizes that those who serve in the military should be supported, rather than penalized, for their service. USERRA requires employers to provide employees who take military leave with the same non-seniority rights and benefits as their colleagues who take comparable non-military leaves. See 38 U.S.C. § 4316(b)(1); 20 C.F.R. § 1002.150(a).


Plaintiffs, commercial airline pilots and military reservists, filed a class action alleging that Alaska Airlines, Inc., and Horizon Air Industries, Inc., violated the USERRA by failing to pay pilots who took short-term military leave while paying pilots who took comparable non-military leaves (e.g., jury duty, bereavement, sick leave). The district court granted summary judgment in favor of the Airlines, concluding that no reasonable jury could conclude that military leave is comparable to non-military leave.


To determine whether types of leave are comparable, the jury must consider (1) duration of leave, (2) purpose of leave, and (3) ability of the employee to choose when to take the leave (also referred to as “control”). 20 C.F.R. § 1002.150(b).


In the district court, the parties submitted conflicting expert reports on the “duration” factor comparing military leave with “comparator” non-military leave. The Airlines’ expert conducted his analysis using all military leaves rather than just short-term military leaves of thirty days or less, analyzed the frequency of leaves, and focused on the length of leaves at the highest percentiles rather than the average lengths. As a result, his analysis was quite different from the numbers produced by the plaintiffs’ expert, who focused on the average, mode, and median days taken of short-term military leave.


The parties also presented conflicting evidence on the “purpose” and “control factors.” The Airlines contend that pilots take military leave to pursue a parallel career, while the plaintiffs maintain that military leave allows pilots to perform a civic duty and public service. The Airlines also contend that pilots have near total control over when to take military leave, while the plaintiffs argue that the military schedule is not so flexible. On each factor, the district court determined there were no genuine issues of material fact and concluded that military leave is not comparable to any other leave as a matter of law. The district court thus did not address the “pay during leave” issue and granted summary judgment to the Airlines.


On appeal, the Ninth Circuit concluded that the district court erred by comparing all military leaves, rather than just the short-term military leaves at issue in plaintiffs’ case with the comparator non-military leaves. The court of appeals also concluded that the district court erred by disregarding “countless factual disputes” about each of the three comparability factors.


The Ninth Circuit held that courts must consider the length of the leave at issue when evaluating the “duration” factor of USERRA’s comparability analysis. The court explained:


To follow the district court’s approach and consider military leaves categorically would render USERRA’s protections meaningless. Military leaves vary greatly in length, and the longest leaves can last years. Were we to adopt a categorical approach to military leaves, no other type of leave would look similar, and servicemembers would not be protected under [USERRA].

To contact Riverside Law Group, PLLC to discuss any USERRA related matters, please contact Matt Crotty at

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