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Employers must extend paid leave to military members: 3rd Circ.

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U.S. army soldiers are seen marching in the St. Patrick's Day Parade in New York, March 16, 2013. REUTERS/Carlo Allegri

  • Paid leave is a "right and benefit" under law protecting servicemembers' jobs
  • Court revived proposed class action against FedEx
  • FedEx paid workers for jury duty, sick leave but not military leave

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(Reuters) - A U.S. appeals court on Tuesday ruled in a case involving Federal Express Corp that workers who take military leave must be paid for that time if their employers offer other forms of short-term paid leave.

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.

USERRA entitles employees taking military leave to the "other rights and benefits" their employers give to workers taking similar kinds of leave. The law defines "rights and benefits" as "any advantage, profit, privilege ... or interest (including wages or salary for work performed)" guaranteed in an employment contract or policy.

Travers in a 2019 lawsuit said FedEx had violated USERRA by providing paid leave for various reasons, such as for jury duty and illness, but not for military leave.

U.S. District Judge Mark Kearney last year dismissed Travers' complaint, agreeing with FedEx that paid leave was not a "right and benefit" under USERRA. The judge noted that the law refers to "wages or salary for work performed," and that employees who receive paid leave have not performed any work.

Travers appealed, arguing that Kearney had read the law too narrowly. USERRA, he said, was designed to prohibit precisely the kind of disparate treatment of servicemembers in which FedEx had engaged.

FedEx countered that because it did not provide paid leave for military duty to any employee, it had not treated servicemembers any differently than the rest of its workforce.

But the 3rd Circuit on Tuesday said USERRA applies to benefits generally provided by an employer, such as paid leave, regardless of distinctions between specific types of benefits such as sick leave and military leave. That is underscored by the list of examples included in the law that are meant to illustrate, but not exhaust, the benefits covered by USERRA, the court said.

"Since employers cannot 'provide' military leave, paid or otherwise, to non-military employees, there is no way to deny the benefit in a neutral way," Circuit Judge Paul Matey wrote.

The panel included Circuit Judges Patty Shwartz and David Porter.

The case is Travers v. Federal Express Corp, 3rd U.S. Circuit Court of Appeals, No. 20-2703.

For Travers: Jonathan Taylor of Gupta Wessler

For FedEx: Anton Metlitsky of O'Melveny & Myers

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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