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LABOR & EMPLOYMENT LAW — 01/23/09

Policy charging employees for non-work days did not violate USERRA

An employee on reserve duty in the Army who alleged that the US Postal Service improperly charged him for missing days of work during his military leave for which he was not scheduled to work (e.g. Sundays and holidays) failed to assert a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), held the Federal Circuit Court of Appeals. The Postal Service’s Employee and Labor Relations Manual, which charged employees for non-work days falling within a period of military leave, did not deny reservists any benefits of employment or discriminate against reservists because of their military service or affiliation. (Welshans v USPS, FedCir, 91 EPD ¶43,404)

Under USERRA, the Merit Systems Protection Board has jurisdiction over government employees’ claims alleging that they have been denied a “benefit of employment” on the basis of membership in the uniformed services. The term “benefit of employment” has been given an “expansive interpretation” and has been construed to include military leave, confirmed the Federal Circuit. Contrary to the employee’s assertions, the Postal Service’s policy in effect at the time did not deny reservists any benefit of employment. Instead, it granted reservists an additional benefit not available to non-military employees. While non-military employees were entitled to sick and annual leave, reservists were granted not only sick and annual leave, but military leave as well. Therefore, explained the Federal Circuit, “[r]egardless of whether non-workdays are charged against military leave, such leave is a benefit available only to employees serving in the military.” While USERRA prohibits discrimination against reservists because of their service, determined the Federal Circuit, there is nothing in the statute to prevent federal agencies from granting reservists benefits not available to other employees.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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