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Legal Update: 3rd Circuit Rules USERRA May Require Paid Leave

3rd Circuit Rules USERRA May Require Paid Leave

On May 21, 2024, the U.S. Court of Appeals for the 3rd Circuit held that short-term military leave may be comparable to jury duty leave and bereavement leave and therefore may be subject to payment if the employer compensates jury duty and bereavement leave. The 3rd Circuit has jurisdiction over Delaware, New Jersey and Pennsylvania.

The opinion was issued in Scanlan v. American Airlines, Inc., reversing a lower court’s summary judgment ruling in favor of the airline and reinstating and remanding the plaintiff pilots’ class action suit for further proceedings. The plaintiffs claim their employer, American Airlines, violated The Uniformed Services Employee and Reemployment Rights Act (USERRA) by denying paid leave for short-term military absences (of no more than 16 days) from Jan. 1, 2013, through Oct. 31, 2021.


USERRA provides job protections for U.S. service members returning from military leave, including granting them the same rights and benefits as employees having similar seniority, status and pay who are on furlough or leave of absence. As the Scanlan court noted, the 3rd Circuit already held in Travers v. Fed. Express Corp. that “rights and benefits” include pay while on leave. The 7th and 9th Circuits have issued similar decisions. The USERRA regulations clarify that employees on military leave are entitled to the most favorable treatment accorded to any comparable form of leave. Factors to consider in determining whether leaves are comparable include the duration of the leave, the purpose of the leave and the ability of the employee to choose when to take the leave.

Scanlan v. American Airlines—Comparability 

The district court had held that no reasonable jury could find that the leaves were comparable. First, on the duration prong of the analysis, the lower court found that, despite the similarity in the lengths of the individual instances of the leaves, military leave recurred on a regular basis over a number of years, while the other forms of leave were short-term and sporadic.

Second, the lower court found that, while the purpose of military leave included the same civic duty purpose as jury duty leave, military leave also allowed the pilots to pursue a parallel career track at a higher rate of compensation than jury duty or bereavement leave. Finally, the lower court found short-term military leave was not comparable on the basis of control because the pilots had more control over the scheduling of their military leave than over jury duty or bereavement leave.

The 3rd Circuit reversed, holding that it was up to a jury to decide whether the frequency of leaves should be considered and whether the purpose and control factors were comparable, given conflicting evidence presented by the parties. 


  • The 3rd Circuit held a reasonable jury could conclude that short-term military leave is comparable to jury duty and bereavement leave in terms of duration, purpose and control and therefore must be compensated if the comparable leaves are compensated.
  • The 3rd Circuit has jurisdiction over Delaware, New Jersey and Pennsylvania, and employers in these states must comply with its decisions.

This Legal Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.© 2024 Zywave, Inc. All rights reserved. 


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