18th Annual Workplace Class Action Report - 2022 Edition

738 Annual Workplace Class Action Litigation Report: 2022 Edition Court’s dismissal order, the Third Circuit reversed. At the outset the Third Circuit opined that two of USERRA’s provisions were at issue on appeal, including: (i) § 4316(b)(1), which entitles employees taking military leave to the “other rights and benefits” their employers give to employees taking similar kinds of leave; and (ii) § 4303(2), which defines those "other rights and benefits.” Looking to the USERRA’s language and history, the Third Circuit concluded that “rights and benefits” under the USERRA included pay while on leave. In so ruling, the Third Circuit rejected the District Court’s reasoning that by explicitly providing that “rights and benefits” included “wages or salary for work performed,” Congress, by negative implication, excluded wages or salary for work not performed, such as paid leave." Id. at *6. The Third Circuit determined that this was not an appropriate reading of the USERRA given the law’s history and its broad language and instead it found that “rights and benefits” under the USERRA included pay while on leave. Id . Additionally, the Third Circuit held that Plaintiff’s allegation that Defendant paid employees for some types of leave but declined to compensate him for his military leave stated a valid claim under the USERRA. The Third Circuit rejected Defendant’s argument that it did not deny any rights and benefits to Plaintiff because nobody was offered the benefit of "paid military leave." Id . at *8. It was unpersuaded because employers cannot "provide" military leave, paid or otherwise, to non-military employees, and there was no way to deny the benefit in a neutral way. As such, the Third Circuit held that Defendant had stated a valid claim pursuant to the USERRA where he alleged that Defendant failed to pay reservists for short- term military assignments but paid its other employees who missed work for other reasons like jury duty, illness, and bereavement. For these reasons, the Third Circuit reversed the District Court’s order dismissing Plaintiff’s complaint. White, et al. v. United Airlines, Inc., 2021 U.S. App. LEXIS 2973 (7th Cir. Feb. 3, 2021). Plaintiff, a commercial airline pilot and reserve member of the United States Air Force, filed a class action alleging that Defendants failed to provide paid leave and profit-sharing plan credit to reservists on military leave in violation of the Uniformed Services Employee and Reemployment Rights Act (“USERRA”). As an Air Force member on reserve duty, Plaintiff had to take short periods of military leave to attend periodic training sessions. According to Plaintiff, Defendants did not provide him with paid leave or credit toward Defendants’ profit-sharing plan while on short-term military leave. Conversely, Defendants allegedly provided pilots taking sick leave or attending jury duty with both benefits. Defendants filed a motion to dismiss, which the District Court granted. In dismissing Plaintiffs’ case, the District Court reasoned that military leave was not comparable to jury duty, and that Plaintiff’s interpretation of the USERRA “would create a de facto universal requirement that private employers pay for military leave, contrary to the settled understanding of the statute.” Id. at *4. On appeal, the Seventh Circuit reversed the District Court’s order. It held that the District Court’s logic both ignored “the text of the regulation” and impermissibly penalized servicemembers for joining the military in direct contravention of the USERRA’s “core purpose.” Id. at *19. With respect to interpreting the USERRA, Plaintiff contended that the phrase “rights and benefits” should be broadly interpreted to include paid leave. The Seventh Circuit agreed by noting that language elsewhere in the USERRA supported Plaintiff’s interpretation, such as the statute’s provision that receiving pay from an employer was an “advantage, profit, privilege, or gain” of employment. Id. at *8. Defendants alternatively argued that this reading of the USERRA contradicted Congress’ statutory intent, as Congress did not realize it would be “opening the door to…a costly sea-change for public and private employers. Id. at *16. The Seventh Circuit rejected this argument on the basis that Plaintiff’s proposed interpretation rested on the plain meaning of the statute, and “when the meaning of the text can be ascertained, it does not matter whether Congress considered or anticipated the specific application at issue.” Id. The Seventh Circuit also opined that U.S. Department of Defense statistics showed that less than 1% of all American employees were reserve military members. As a final argument, Defendants sought partial affirmance on the basis that Defendant United Continental Holdings (“UCH”) was not an “employer” as defined in the USERRA. However, because the USERRA’s definition of “employer” suggested that more than one entity may employ the same individual, the Seventh Circuit held that Defendant UCH should not be dismissed from the action. Id. at *22-23. Therefore, the Seventh Circuit reversed the District Court’s order and remanded for further proceedings. The Seventh Circuit also directed the District Court on remand to require Plaintiff to “show that any leave of absence for which his employer provides paid leave is comparable to any given stretch of military leave.” Id. at *18. (lxxxiii) WARN Class Actions Arnold, et al. v. LME, Inc., 2021 U.S. Dist. LEXIS 86091 (D. Minn. May 5, 2021). Plaintiffs, a group of former employees, filed a class action alleging that Defendants failed to provide them sufficient notice prior to being laid