Catholic Law Lecturer Bradford Kelley, a former U.S. Army infantry and intelligence officer and Iraq War veteran, recently published an article entitled “For Whom the Leave Tolls: Short-Term Paid Military Leave and USERRA” in the Penn State Law Review. The article examines the recent litigation involving companies that do not provide service members with paid leave when they take short-term military leave even when they do provide paid leave to workers taking similar forms of non-military leave.

Those who serve in the military in the National Guard or Reserves must balance civilian life in addition to their service duties, including time away from a civilian job. To help service members strike that balance, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA protects service members from workplace discrimination based on their military service or affiliation. The law also provides employees with a variety of leave entitlements for absences related to military service. However, courts remain unclear as to whether USERRA requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences, such as for jury duty, sick time, vacation, or bereavement. Although USERRA does not impose a general mandate for employers to pay all service members taking military leave, it does mandate service members be treated equally to other workers. Notwithstanding this requirement, many companies do not provide service members with paid leave when they take short-term military leave even when they do provide paid leave to workers taking similar forms of non-military leave.

The article argues that USERRA’s plain language, purpose, history, and implementing regulations require employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences. First, the article begins by exploring the genesis of employment law protections for service members, including the early history of these laws and their original purpose. Next, the article examines specific USERRA, regulatory, and state law protections relevant to the military short-term paid leave debate. The article then shifts to examining the application of these authorities by courts and identifies some of the salient coverage gaps created by judicial precedents. Finally, the article asserts that USERRA mandates short-term paid military leave contrary to these precedents and offers some positive suggestions on how to ameliorate these pay disparities in the future.