Unpaid military leave center of UPS drivers’ wage lawsuit

September 29, 2021

Tyson Fisher


UPS is fighting a class action lawsuit filed by a driver who claims the company failed to pay him while on short-term military leave as required by federal law.

In August, UPS filed a motion to dismiss a case filed by truck driver Justin Baker in a Washington state federal court. Baker’s complaint alleges UPS did not pay him and other drivers their normal wages during periods of short-term military leave per the Uniformed Services Employment and Reemployment Rights Act. However, UPS claims that is not at all what the law directs.

“Plaintiff Justin Baker asks this court to discover a new right in a decades-old statute that would entitle him to be paid twice while working as a military reservist,” UPS stated in its motion to dismiss. “His claim rests on a mistaken interpretation of the Uniformed Services Employment and Reemployment Rights Act.”

Baker’s argument is based on an interpretation of 38 USC 4316 (b)(1)(B), which states that when a person temporarily leaves a job to perform military service, they are “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan.”

For example, if an employer pays nonmilitary employees sick or bereavement leave, then those similar benefits must extend to short-term military leave, which Baker defines as a period of 14 consecutive days or fewer.

According to the first amended complaint, UPS has failed to pay service member employees military leave since at least October 2004. Company policy allows all employees to receive full wages for various nonmilitary absences, including sick time, bereavement leave and jury duty. For the latter, UPS pays the difference between the jury stipend and the employee’s wage.

Baker argued that USERRA requires employers that offer nonseniority rights and benefits to similarly situated employees who take comparable nonmilitary leave to offer those same “rights and benefits” for military leave. Sick/bereavement leave and jury duty are comparable to short-term military leave in both duration and the involuntary nature of the leave.

‘Short-term’ military leave does not exist?

However, UPS argued that Baker’s “contorted reading of USERRA disregards the statute’s text … and opposes the long-held understanding of the United States Department of Labor and civilian employers alike.”

In its motion to dismiss, UPS called the demand for paid leave while pursuing a second career “unlike anything afforded to nonmilitary employees.” UPS claimed that Baker arbitrarily made up a “short-term” military leave of 14 days or fewer. It alleged that neither the military nor collective bargaining agreement signed by Baker defines any kind of military leave based on length.

Rather, UPS argued that USERRA requires employers to pay all employees in a nondiscriminatory way, which it does by offering military and nonmilitary employees pay for sick leave, bereavement and jury duty. Nowhere does UPS “double-pay” anyone pursuing a second job, which it suggests Baker is essentially demanding.

Supporting its argument, UPS pointed out that USERRA defines “rights and benefits” as “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract.” (emphasis UPS’).

Whereas the statute goes on to list numerous examples of rights and benefits, wages only appears once under the condition of work performed.

Federal law does require federal government employers to provide leave without loss in pay for up to 15 days per fiscal year for military leave. However, that requirement does not extend to the private sector.

Furthermore, UPS stated that when it comes to interpreting statutes, courts must first look to the plain meaning of the text and the intent of Congress when writing the law. A recent federal court of appeals order states that “Congress does not hide elephants in mouse holes.” In this case, the elephant in the room is paying employees full wages while on military leave. A provision as significant as this, UPS argues, would not have been overlooked by Congress when drafting the law.

“Had Congress intended to require employers to pay employees while working for the military, it would have said so expressly,” UPS argued. “Because it did not, Baker cannot state a claim, and this court should dismiss the case.”

Baker counterargued that every court that has had to decide on the question of whether or not continuation of pay is a right or benefit has ruled in the affirmative.

As of publication, the court had not yet ruled on the motion to dismiss. LL

Tyson Fisher joined Land Line Magazine in March 2014. An award-winning journalist and tireless researcher, his news reports, features and blogs bring depth to our editorial content, backed with solid detail. Tyson is a lifelong Kansas Citian.