The Uniformed Services Employment and Reemployment Rights Act (USERRA) imposes on employers the strictest requirements of any federal leave law. Reservists, National Guard members, and other employees who leave work for active duty are entitled not only to reinstatement to their prior jobs but also to the job they would have held had they not missed work due to military service. Earlier this month, the Ninth Circuit Court of Appeals held that this “escalator” principle also applies to payment of bonuses tied to advanced training.
In Huhmann. v. Federal Express Corp., the plaintiff was an Air Force reservist who was called to active duty. While on duty, he missed training for piloting a more advanced aircraft. Upon completion of a new collective bargaining agreement, FedEx agreed to pay its pilots a one-time bonus tied to their training status. After his return from active duty, the plaintiff received the advanced training, but he was only paid a bonus based on his training level at the time of his departure for military service. He sued, claiming that USERRA’s escalator principle required FedEx to pay him the bonus based on his anticipated training level had he not left work for military service.
The Ninth Circuit agreed, finding that it was reasonably certain that had the plaintiff not been called to active duty, he would have completed the advanced pilot training and therefore would have qualified for the higher bonus. This case differs from situations where an employee called to active service does not receive incentive or other bonuses tied to production. Military leave under USERRA is unpaid, meaning that if the employer can demonstrate that the bonus is based on actual production instead of status, attendance, or other factors, it would not have to provide such incentive pay to absent military members.
