Welshans appealed to the Merit Systems Protection Board (MSPB), claiming he should not have been charged military leave for days (e.g. Sundays and holidays) which were not his scheduled workdays; MSPB dismissed in Welshans vs. USPS (2007 MSPB 249). He sought corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA); the Federal Circuit recently affirmed in Welshans vs. United States Postal Service (Fed Cir 12/15/2008).
The court concluded that the federal employer's policy charging employees for non-work days falling within a period of military leave was consistent with the employer's Employee and Labor Relations Manual (ELM) in effect during the relevant time period, did not run afoul of Butterbaugh v. Department of Justice, 336 F3d 1332 (Fed Cir 2003), and did not violate USERRA.
With respect to the USERRA claim, the court wrote:
"Finally, Welshans contends that charging military leave for non-workdays is, on its face, a violation of USERRA. “USERRA represents Congress’s most recent effort to create a comprehensive statutory scheme to provide civilian reemployment rights for those who serve in the armed forces in order ‘to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.’” Smith v. U.S. Postal Serv., 540 F.3d 1364, 1366 (Fed. Cir. 2008) (quoting 38 U.S.C. § 4301(a)). It prohibits discrimination against persons serving in the military by mandating that a member of “a uniformed service shall not be denied . . . any benefit of employment by an employer on the basis of that membership . . . .” 38 U.S.C. § 4311(a); see Hernandez, 498 F.3d at 1332 n.4.
Under USERRA, the board has jurisdiction over a government employee’s claim that he has been denied a “benefit of employment” on the basis of his membership in the uniformed services. See 38 U.S.C. §§ 4311(a), 4324(b). The term “benefit of employment” has been given an “expansive interpretation,” see Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1484-85 (Fed. Cir. 1998), and has been construed to include military leave, Pucilowski v. Dep’t of Justice, 498 F.3d 1341, 1344 (Fed. Cir. 2007).
Contrary to Welshans’ assertions, however, the Postal Service’s military leave policy did not deny reservists any benefit of employment. Instead, the ELM in effect in 1999 granted reservists an additional benefit not available to non-military employees. While non-reservists were entitled to sick and annual leave, reservists were granted not only sick and annual leave, but military leave as well. Regardless of whether non-workdays are charged against military leave, such leave is a benefit available only to employees serving in the military. USERRA prohibits discrimination against reservists because of their service: there is nothing in the statute to prevent an agency from granting them benefits not available to other employees. See Fahrenbacher v. Dep’t of Navy, 85 M.S.P.R. 500, 510 (M.S.P.B. 2000), aff’d sub nom. Sheehan v. Dep’t of Navy, 240 F.3d 1009 (Fed. Cir. 2001) (“To establish [USERRA] discrimination, [veterans] must show that they were treated more harshly than non-veterans. The fact that they were not treated better than non-veterans does not show discrimination.”)."
Kudos to the Washington State Bar Association's Labor Law Section who published on this case in its lawMemo Labor Law Blog. This may be a resource for future discussion of employment rights of veterans.