Clarkson v. Alaska Airlines, Inc., 59 F.4th 424 (9th Cir. 2023)

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers are required to provide employees who take military leave with the same non-seniority rights and benefits as colleagues who take comparable non-military leaves. Casey Clarkson, a pilot for Alaska Airlines and a military reservist, alleged that the airline’s failure to provide paid leave for short-term military leaves while providing pay for jury duty, bereavement, and sick leave violated the USERRA. The district court granted summary judgment to the Airline, but the Ninth Circuit reversed. The Ninth Circuit considered three comparability factors: (1) the duration of leave, (2) purpose of leave, and (3) employee choice of when to take the leave (i.e., control). The Ninth Circuit concluded that the district court erred by comparing all military leave instead of just short-term military leave. For example, the district court compared the longest military leave (185 days) rather than the average length of short-term military leave (3.1 days). The district court also erred by finding that the purpose of short-term military leave was not to perform a civic duty and public service and that a reasonable jury could conclude that pilots do not have significantly more control over their short-term leave relative to other types of leave.