Hello again. I've looked over your clarification, and I *think* my
original answer gets to all of your points, so I am posting it below.
If the answer falls short of what you need in any way, just give me a
clear indication of what other types of information you want, and I'll
do my best. In a nutshell though:
You wrote: >>The JAG guide...fails to follow through on whether leave
actually included as a "non-seniority" benefit...
A number of sources I cite below make clear that benefits "both paid
and unpaid" need to be considered. I read this as clear indication
that leave pay would be included as well.
You wrote: >>I have been unable to find a case citation or
"authoritative" opinion in the face of many companies having policies
that treat discretionary leaves (jury etc.) more generously than
Again, several cites below seem to make clear that military leave
cannot be treated any less than the most generous comparable
You wrote: >>I would expect someone to have pushed the issue already,
successfully or not, but have been at a loss to find reference to it;
that's where you come in...
I hope this answer -- and the references provided -- lives up to your
expectations. But at the risk of repeating myself, if anything falls
short, just let me know -- with as much detail as you can -- what type
of situation you're facing, and what additional information you need.
And now...on to the full answer itself.
Hello servinggladly-ga, and thank you for your question.
The answer I'm providing here will give you an in-depth overview of
how USERRA has been interpreted regarding leave and benefits issues,
along with the key interpretive case on this matter. If you find,
after reviewing the answer, that you need additional information, just
let me know through a Request for Clarification, and I'll be glad to
assist you further.
And of course, the caveat: Although I am confident that I am
providing useful information here, I'm not a lawyer, and this answer
is no substitute for professional legal advice.
Let's start with the law itself, and the language of Section 4316(b)--
often called the "furlough and leave" clause -- which says that
employees returning from the service to their jobs are entitled to
rights and benefits "as are generally provided by the employer" to
other employees in relatively similar circumstances. Here's the
Title 38, United States Code
U.S. Department of Labor
(As enacted by Pub. Law 103-353, October 13, 1994)
Uniformed Services Employment and Reemployment Rights Act of 1994
CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
§ 4316. Rights, benefits, and obligations of persons absent from
employment for service in a uniformed service
(a) A person who is reemployed under this chapter is entitled to the
seniority and other rights and benefits determined by seniority that
the person had on the date of the commencement of service in the
uniformed services plus the additional seniority and rights and
benefits that such person would have attained if the person had
remained continuously employed.
(b)(1) Subject to paragraphs (2) through (6), a person who is absent
from a position of employment by reason of service in the uniformed
services shall be--
(A) deemed to be on furlough or leave of absence while performing such
(B) entitled to such other rights and benefits not determined by
seniority as are generally provided by the employer of the person to
employees having similar seniority, status, and pay who are on
furlough or leave of absence under a contract, agreement, policy,
practice, or plan in effect at the commencement of such service or
established while such person performs such service.
The VETS (Veterans' Employment and Training Service) division at the
US Department of Labor is one of the groups charged with arbitrating
employee-employer disputes regarding USERRA. They elaborate on the
meaning of the furlough and leave clause by making clear that (1) it
refers to both paid and unpaid forms of benefits, (2) if practices are
variable, the "most favorable" practice should be used as the standard
as long as the leave for military service is comparable to nonmilitary
http://www.dol.gov/vets/#userra [link to USERRA Resource Guide]
A Non-Technical Resource Guide to the
Uniformed Services Employment and Reemployment Rights Act
The U.S. Department of Labor
Veterans Employment and Training Service
Rights not based on seniority Section 4316(b).
Departing service members must be treated as if they are on a
leave of absence. Consequently, while they are away they must be
entitled to participate in any rights and benefits not based on
seniority that are available to employees on nonmilitary leaves
of absence, whether paid or unpaid. If there is a variation
among different types of nonmilitary leaves of absence, the
service member is entitled to the most favorable treatment so
long as the nonmiltary leave is comparable. For example, a
three-day bereavement leave is not comparable to a two-year
period of active duty.
The returning employees shall be entitled not only to
nonseniority rights and benefits available at the time they left
for military service, but also those that became effective during
The VETS guide goes on to desribe how employee-employer complaints can
be made and resolved either through VETS or through the courts:
Government-assisted court actions
Section 4323(a)(1). Persons whose complaints are not successfully
resolved by VETS may request that their complaints be submitted
to the Attorney General for possible court action. If the
Attorney General is satisfied that a complaint is meritorious,
the Attorney General may file a court action on the complainants
Private court actions Section 4323(a).
Individuals continue to have the option to privately file court
actions. They may do so if they have chosen not to file a
complaint with VETS, have chosen not to request that VETS refer
their complaint to the Attorney General, or have been refused
representation by the Attorney General.
Double damages. Section 4323(d)(1)(C). Award of back pay or lost
benefits may be doubled in cases where violations of the law are
found to be "willful." "Willful" is not defined in the law, but
the laws legislative history indicates the same definition that
the U.S. Supreme Court has adopted for cases under the Age
Discrimination in Employment Act should be used. Under that
definition, a violation is willful if the employers conduct was
knowingly or recklessly in disregard of the law.
The Reserve Officers Association publishes an on-line Law Review which
has discussed USERRA leave and benefit provisions extensively. I've
excerpted some of this material below, but would strongly recommend
that you go to the links and read the full articles themselves.
The December 2002 article, excerpted below, discusses a matter which
might be similar to your own, and bears careful reading. The article
also notes an important point. USERRA's "furlough or leave of
absence" language is almost identical to language that was used in the
earlier Veterans Reemployment Rights (VRA)law (which USERRA replaced
in 1994). Therefore, legal cases that refer to this language in VRA
are also relevant to interpreting the USERRA. One of the key cases in
this regard is the Waltermyer v. Aluminum Company of America case,
which is discussed in several of the articles I reference below.
RESERVE OFFICERS ASSOCIATION -- LAW REVIEW
Number 58, December 2002:
Furlough or Leave of Absence Clause Revisited
Q: In Law Review 41 (April 2002), you discussed USERRAs furlough or
leave of absence clause
...You also wrote, [T]he most favorable treatment accorded to any
particular form of [non-military] leave must also be accorded to the
military leave, regardless of whether the non-military leave is paid
or unpaid...My employer insists that the comparison can only be made
with other forms of unpaid leave, and the employer is denying me
several important benefits as a result of this interpretation.
A. The leading VRR case on the -- furlough or leave of absence --
clause is Waltermyer v. Aluminum Company of America...In that case,
the comparison was to jury leave, a form of paid leave. USERRAs
legislative history clearly indicates that Congress intended to adopt
and reaffirm Waltermyer...
An earlier article on the same topic provides some additional detail:
Number 41, April 2002:
USERRA Rights During Service
Assume that your employer accords holiday pay or some other
non-seniority benefit to employees who have been furloughed (laid off)
or to employees on some form of non-military leave (like educational
leave). Under those circumstances, the employer must accord to you the
same benefit, under the same conditions, while you are away from work
for voluntary or involuntary uniformed service.
Assume that your employer has more than one form of non-military
leave. Under Waltermeyer, the most favorable treatment accorded to any
particular form of leave must also be accorded to the military leave,
regardless of whether the non-military leave is paid or unpaid.
Of course, the comparison should be to a non-military leave of absence
of comparable length. It would not be reasonable to compare a
five-year military leave to a five-day jury leave.
An excerpt from a USERRA guide prepared for the judicial system in
Indiana offers some additional perspective:
A Judges Guide To The Soldiers and Sailors Civil Relief Act
and The Uniformed Services Employment and Reemployment Rights Act
Christopher L. Burnham, Judge, Morgan Superior Court 2
...Other Non-Seniority Benefits.
If the employer offers other benefits, not based on seniority, to
employees who are on furlough or nonmilitary leave, the employer must
make them available to the employee on military service during the
Examples: ESOP, low cost life insurance, Christmas bonus, holiday pay,
If the employer has more than one leave/furlough policy, the military
employee gets the benefit of the most generous.
However, if policies vary by length of absence, the military employee
may only take advantage of policies geared to similar periods of
absence (e.g., 6 months, 1 year, etc.) of absence.
The major case law involving the furlough and leave clause was
summarized in the court's decision of the case of a postal employee
contesting his job status after returning from military duty...I've
cleaned up the excerpts below, removing some of the legal mumbo-jumbo
to make it easier to read. But you can find the full text at:
This compilation points up the three basic considerations applied by
the courts. First, the courts have considered whether the "incident or
advantage" is one generally granted to all employees in that
workplace, and whether it was denied solely because of absence for
military service. See Monroe v. Standard Oil Co., 452 U.S. 549 (1981).
Several courts have ruled that a generally available benefit can not
be denied because of military duty. See, e.g., Waltermyer v. Aluminum
Co. of Am., 804 F.2d 821, 824-25 (3d Cir. 1986) (reservist was
entitled to holiday pay despite requirement that employee be present
on days before and after holiday); Carney v. Cummins Engine Co., 602
F.2d 763, 766-67 (7th Cir. 1979) (reservist was entitled to overtime
opportunities he missed while on military duty).
Second, the courts have considered whether the person absent on
military duty was treated the same way as if the person had remained
at work. These rulings recognize that although for some statutory
purposes persons returning from military duty correctly are treated as
if they had been on furlough or leave of absence, under 4301(b)(3)
they must not be disadvantaged by failure to treat them as if they had
been present at work. See, e.g., West v. Safeway Stores, Inc., 609
F.2d 147, 150 (5th Cir. 1980); Carlson v. New Hampshire Dep't of
Safety, 609 F.2d 1024, 1027 (it is not sufficient to treat reservist
like any employee on leave, the court treating a shift change as a
"constructive demotion"); see also Diaz-Gandia v. Dapena-Thompson, 90
F.3d 609, 614 (1st Cir. 1996) (explaining Carlson). Third, the courts
have considered whether it was reasonably certain that the benefit
would have accrued to the employee but for the absence for military
service. See Teamsters Local Union 612 v. Helton, 413 F.2d 1380,
1383-84 (5th Cir. 1969).
I hope this is the information you need. But as I said at the outset,
just let me know through a Request for Clarification if I can provide
any additional perspective or assistance here. And of course, good
Search strategy: Google search on: USERRA
"Waltermyer * Aluminium"
Clarification of Answer by
19 May 2003 16:48 PDT
A number of folks at VETS and the U.S. Office of Special Counsel have
given me the same message: they don't think there is a case that
closely mirrors the one you have outlined. However, the VETS folks in
Washington DC are busy going through their records and have promised
to get back to me to let me know what (if anything) they find.
However, they did direct me to two important sources of information.
The U.S. Office of Personnel Management has a "Significant Cases" page
where they review emerging precendents from administrative and court
cases. A search on USERRA uncovered several cases that *may* have
some bearing on your situtation, in that they address questions of
applicability of the law, burden on complaintants to make their case,
etc. I've included some "Significant Cases" excerpts below:
Stephen Fox v. United States Postal Service
The appellant used 392 hours of Leave Without Pay (LWOP) during his
active military service in Kosovo. Upon returning, the appellant found
the agency had prorated his merit pay increase and economic value
added (EVA) bonus based on the fact he had used more than the allowed
80 hours of LWOP for the fiscal year 1999. The appellant filed a
petition for remedial action with the Merit Systems Protection Board
(MSPB) claiming the prorating was a violation of Uniform Services
Employment and Reemployment Rights Act of 1994, 38 USC § 4301, et seq.
...It noted that recent a Federal Circuit decision, Sheehan v.
Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001), rejected the
use of the Title VII McDonnell Douglas analysis for USERRA cases. The
court found instead that Congress adopted a "but for" test as the
standard of proof of discrimination or retaliation under USERRA. Under
such a standard, the employee has the initial burden of showing by a
preponderance of evidence that the employee's military service was a
"substantial or motivating factor" in the adverse action employment
action. This discriminatory motive or intent can be proven by either
direct or indirect (circumstantial) evidence. If this initial burden
is met, the employer then has the opportunity to come forward with
evidence to show that the employer would have taken the action anyway,
for a valid reason.
Robert E. Morgan v. United States Postal Service, March 1, 1999
USERRA AS AN AFFIRMATIVE DEFENSE. An appellant may assert the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) as an affirmative defense, as it falls under the third
category of affirmative defenses, namely, that "the [agency's]
decision was not in accordance with law." 5 U.S.C. § 7701(c)(2)(C).
There are two methods of proof an appellant may use in supporting a
discrimination claim in violation of USERRA: direct evidence of
discriminatory intent--subject to the USERRA standard of review, or
circumstantial evidence--subject to Title VII burdens of proof and
Ronald Fahrenbacher and Patrick J. Sheehan v. Department of Navy,
CH3443980656-I-1 & CH3443980724-I-1, March 22, 2000
USERRA/VEOA. In appeals alleging a violation of the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA), an
appellant who charges discrimination based on military service must
demonstrate that the agency treated the appellant worse than a
non-veteran because of the appellant's military service. It is not
sufficient to show that the agency did not treat the appellant better
You'll note there were several references to Sheehan v Navy. Everyone
I talked with agreed this is most significant court case regarding
USERRA in recent memory, providing interpretation for areas of USERRA
that transcend the particulars of the case itself.
The other case resource is the files of U.S. Merit System Protection
Board which decides USERRA cases for federal employees. A search of
their site at:
revealed 86 cases involving USERRA. Again, nothing seemed to hit the
nail on the head regarding your situation, but I would encourage you
to look through the case files yourself to see if any of the findings
are particularly relevant. I've excerpted a few of the most pertinent
cases below (including several of those cited above, which started as
MSPB cases then went forward to the courts):
STEPHEN K. FOX, v.
UNITED STATES POSTAL SERVICE,
In January 2000, the appellant learned that the agency had prorated
his merit pay increase based on his LWOP exceeding 80 hours for the
1999 fiscal year. IAF, Tab 1 at 3 (Blocks 24-26), 10-14; Tab 6,
Subtabs 1 at 1-2, 4f at 8. The appellant then filed a petition for
remedial action directly with the Board, claiming that the reduction
of his merit pay increase for the time period he was on LWOP
performing active duty military service violated the Uniformed
Services Employment and Reemployment Rights Act....
...While this case was pending on review before the Board, the U.S.
Court of Appeals for the Federal Circuit issued a precedential
decision that construed the statutory burden of proving discrimination
in employment on the basis of military service under USERRA, as set
forth in 38 U.S.C. § 4311. Sheehan v. Department of the Navy, 240 F.3d
1009 (Fed. Cir. 2001). The Federal Circuit specifically rejected the
use of the Title VII McDonnell Douglas analysis in USERRA cases,
finding that Congress in 1994 had adopted the "but-for" test as the
standard of proof of discrimination or retaliation under USERRA and
had cited, in the legislative history of USERRA, the procedures and
allocations of burdens of proof for actions under the National Labor
Relations Act as discussed by the U.S. Supreme Court in National Labor
Relations Board v. Transportation Management Corp., 462 U.S. 393, 401
(1983), modified by Office of Workers Compensation v. Greenwich
Collieries, 512 U.S. 267 (1994). Sheehan, 240 F.3d at 1012-13; see
Petersen, 71 M.S.P.R. at 239-40. The Federal Circuit noted that the
Supreme Court in Transportation Management had adopted and approved
the National Labor Relations Boards reasoning in Wright Line, 251
N.L.R.B. 1083, 1089 (1980), enforced, 662 F.2d 899 (1st Cir. 1981),
and the Federal Circuit specifically applied this precedent to USERRA
claims. Sheehan, 240 F.3d at 1013-14.
Thus, "an employee making a USERRA claim of discrimination bear[s] the
initial burden of showing by a preponderance of the evidence that the
employees military service was a substantial or motivating factor
in the adverse employment action." Id. at 1013 (citation omitted). "If
this requirement is met, the employer then has the opportunity to come
forward with evidence to show, by a preponderance of the evidence,
that the employer would have taken the adverse action anyway, for a
valid reason." Id. The Federal Circuit acknowledged that an employee
may prove discriminatory motive or intent by either direct or
circumstantial (indirect) evidence. Sheehan, 240 F.3d at 1014. But,
"[w]hen the employee has met this burden, the burden shifts to the
employer to prove that legitimate reasons, standing alone, would have
induced the employer to take the same adverse action." Id. In sum,
under the "but-for" test, "in USERRA actions there must be an initial
showing by the employee that military status was at least a motivating
or substantial factor in the agency action, upon which the agency must
prove, by a preponderance of evidence, that the action would have been
taken despite the protected status
TERRELL E. PARKER, v.
OFFICEOF PERSONNEL MANAGEMENT,
The appellant served on active duty with the RIARNG through July 31,
1991. IAF, Tab 9, Subtab 6, Orders 143-1. Before he was separated from
active duty, the appellant requested retroactive leave without pay
from his former NGT position for the period of his AGR service. IAF,
Tab 9, Subtab 6, Memorandum dated May 23, 1991. This request was
[a bit tangential, but worth looking at anyway]
LELAND R. HAMNER, v.
DEPARTMENT OF HOUSING AND URBAN DEVelopment,
USERRA provides that a uniformed service member "shall not be denied
initial employment, reemployment, retention in employment, promotion,
or any benefit of employment" because of his military service. 38
U.S.C. ? 4311(a); McAfee v. Social Security Administration, 88
M.S.P.R. 4, ? 12 (2001). Under USERRA, the Board has jurisdiction over
allegations that a federal executive agency discriminated against a
person due to his military service. 38 U.S.C. ?? 4303(4)(A)(ii),
4311(a); McAfee, 88 M.S.P.R. 4, ? 12. An appellant may file a USERRA
appeal directly with the Board under 38 U.S.C. ? 4324(b), or may file
a complaint with the Secretary of Labor pursuant to 38 U.S.C. ? 4322.
JOE M. HEREFORD, v.
TENNESSEE VALLEY AUTHORITY,
In his petition for appeal against the TVA, the appellant alleged
that the Tennessee Valley Authority Retirement System (TVARS)
improperly denied him retirement credit for time he spent on military
active duty in the Naval Reserves. He asserted that the TVARS allowed
credit for prior active service unless a veteran was eligible to
receive military retirement pay at age 60; he claimed that he was
denied active duty retirement credit because he had "continued his
affiliation with the military in a reserve component and ha[d] become
eligible to receive military retirement pay." Initial Appeal File
(IAF), Tab 1.
CHARLES R. FERNANDEZ v.
DEPARTMENT OF THE ARMY
On March 16, 1999, the appellant filed an appeal with the Board?s
Washington Regional Office in which he attempted to contest the
agency?s denial of his request for living quarters allowance (LQA) for
the years 1979-1991, a period during which the appellant worked for
the agency as a civilian employee in Germany. Initial Appeal File
(IAF), Tab 1. LQA is authorized for federal employees in a foreign
area by 5 U.S.C. ? 5923(a)(2).
I hope this material, and the general access to case information, is
helpful in resolving your case. As I said earlier, I expect to hear
back from the VETS folks in a day or two, and I will provide an update
at that point with whatever additional information they can provide.
In the mean time, please post a comment here, and let me know if this
new information is helpful to you.