CASEY CLARKSON V. ALASKA AIRLINES, INC., ET AL, No. 21-35473 (9th Cir. 2023)
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USERRA Section 4316(b)(1) 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. Plaintiff, a commercial airline pilot and military reservist, filed a class action brought under USERRA. Plaintiff alleged that because Alaska Airlines and Horizon Air Industries (collectively, the “Airlines”) provide paid leave for non-military leaves, including jury duty, bereavement, and sick leave, the Airlines are also required to pay pilots during short-term military leaves. The district court disagreed, granting summary judgment to the Airlines and concluding as a matter of law that military leave is not comparable to any other form of leave offered by the Airlines.
The Ninth Circuit reversed the district court’s grant of summary judgment. The panel held that the district court erred in concluding that no reasonable jury could find military leave comparable to non-military leave. In reaching this conclusion, the district court erred by comparing all military leaves, rather than just the short-term military leaves at issue here, with the comparator non-military leaves. The district court also erred by disregarding factual disputes about each of the three factors in the comparability analysis: duration, purpose, and control. The panel held that because factual disputes existed, comparability was an issue for the jury.
The panel, therefore, reversed and remanded. It instructed that on remand, the district court should consider in the first instance the issue of whether “pay during leave” was a standalone benefit that the airlines provided under their collective bargaining agreements to any employee on leave.
Court Description: Labor Law The panel reversed the district court’s grant of summary judgment in favor of defendants Alaska Airlines, Inc., and Horizon Air Industries, Inc., and remanded, in a class action brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA) by Casey Clarkson, a commercial airline pilot and military reservist. Clarkson alleged that because the airlines provided paid leave for non-military leaves, including jury duty, bereavement, and sick leave, the airlines were also required to pay pilots during short-term military leaves of thirty days or less. Under USERRA § 4316(b)(1), “a person who is absent from a position of employment by reason of service in the uniformed services” shall be “deemed to be on furlough or leave of absence” and shall be “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer” to other employees on non- military furloughs or leaves of absence. Under 20 C.F.R. § 1002.150, the “non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees.” If the benefits vary according to the type of leave, the employee must be given “the most favorable treatment accorded to any comparable form of leave when he or she CLARKSON V. ALASKA AIRLINES, INC. 3 performs service in the uniformed services.” To determine whether types of leave are comparable, the duration of the leave must be considered, as well as the purpose of the leave and the ability of the employee to choose when to take the leave. The panel held that the district court erred in concluding that no reasonable jury could find military leave comparable to non-military leave. In reaching this conclusion, the district court erred by comparing all military leaves, rather than just the short-term military leaves at issue here, with the comparator non-military leaves. The district court also erred by disregarding factual disputes about each of the three factors in the comparability analysis: duration, purpose, and control. The panel held that because factual disputes existed, comparability was an issue for the jury. The panel therefore reversed and remanded. It instructed that on remand, the district court should consider in the first instance the issue whether “pay during leave” was a standalone benefit that the airlines provided under their collective bargaining agreements to any employee on leave. 4 CLARKSON V. ALASKA AIRLINES, INC.
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