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The 11th Circuit Court of Appeals, in its decision in Tully v. Department of Justice, provided employers with insight into the application of those portions of the USERRA (Uniformed Services Employment and Reemployment Rights Act of 1994) that relate to leave benefits while on furlough or leave of absence. The statute, 38 U.S.C. 4316(b)(1) provides that when an employee is absent for military service, the employee is

(A) deemed to be on furlough or leave of absence while performing such service; and (B) entitled to such other rights and benefits….as are generally provided by the employer of the person to the employees…who are on furlough or leave of absence.

Tully argued that as a result of this statute, his employer was required to pay him for twenty-seven holidays that occurred while he was on a two and one-half (2 ½) year military tour of duty.

According to Tully, the employer allowed employees to take paid leaves of absence for court proceedings, as a witness or juror, which included holiday pay, and, as a result, he was owed holiday pay for those holidays that occurred while he was in the service of the military. The appellate court disagreed. It held that it was not the intention of Congress, in enacting USERRA , to provide service members with more favorable treatment than their coworkers who do not serve in the military. USERRA was intended to provide service members with treatment that was equivalent to the most favorable leave available to employees. The court noted, that in the past, courts have permitted leave benefits for service members who were away for short absences for military training since their employer allowed similar benefits to other employees who elected to take paid leaves of absence. Although the court did not provide a bright line test for use when interpreting USERRA, the court indicated that employers should take into account the circumstances under which leave benefits are provided and one of those circumstances is the length of the anticipated absence. Applied to this case, the court found that a two and one-half (2 ½) year absence for military duty was not similar to a leave absence for a court proceeding, which, in most cases, would require the employee to be absent for several days.

The Bottom Line: As more military personnel return to the workplace, employers will find that they need to have policies and procedures in place to handle legal obligations under USERRA. The failure to do so can be a costly mistake. More and more employers are learning this lesson when these cases get to court.

Nothing in this blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature. Nothing can substitute for a consultation with a legal professional who can address your particular legal concern.

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