7th Circuit: Sick leave policy not seniority-based benefit under USERRA

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal statute that protects military servicemembers’ and veterans’ civilian employment rights. In addition to requiring employers to put individuals back to work in their civilian jobs after military service, USERRA mandates they provide employees on military leave with any seniority-based benefit they would have accrued but for the leave. In a class action lawsuit originally filed in an Illinois district court, the U.S. 7th Circuit Court of Appeals (which also covers Wisconsin) answers whether the employer’s sick leave benefit is a seniority-based benefit under the Act.

Facts

Michael Moss was a pilot employed by United Airlines. Throughout the relevant period, he also held a commission as a lieutenant colonel in the reserve component of the U.S. Marine Corps. In August 2016, he sued United individually and on behalf of other class members, alleging the airline violated USERRA by denying sick-time accrual to pilots on military leave. He argued:

• Sick time is a seniority-based benefit and thus should have continuously accrued; and
• Sick-time accrual was available to pilots on comparable periods of leave.

The district court dismissed the sick leave claim on summary judgment (without a trial), and Moss appealed. Only his first argument was at issue on appeal to the 7th Circuit.

United’s sick leave policy