20 C.F.R. § 1002.150

Which non-seniority rights and benefits is the employee entitled to during a period of service?

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(a) The non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan in effect at the employee's workplace. These rights and benefits include those in effect at the beginning of the employee's employment and those established after employment began. They also include those rights and benefits that become effective during the employee's period of service and that are provided to similarly situated employees on furlough or leave of absence.

(b) If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. In order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare. For instance, a two-day funeral leave will not be “comparable” to an extended leave for service in the uniformed service. In addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.

(c) As a general matter, accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on a military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence.

Notes of Decisions

Cited in 34 cases (23 in the last 5 years), 2007–2026 · leading case: Casey Clarkson v. Alaska Airlines, Inc., 59 F.4th 424 (9th Cir. 2023).

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Casey Clarkson v. Alaska Airlines, Inc., 59 F.4th 424 (9th Cir. 2023). · cites it 10× “Under 20 C.F.R. § 1002.150 , the “non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees.”

Eric White v. UAL, 987 F.3d 616 (7th Cir. 2021). · cites it 4× “20 C.F.R. § 1002.150 (b). White argues that section 4303(2) defines the term “rights and benefits” broadly, and under this definition paid leave— i.”

Matter of Andrews v. State of New York, 138 A.D.3d 1297 (N.Y. App. Div. 2016). · cites it 5× “to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service” ( 38 USC § 4316 [b] [1];…”

Gerard Travers v. Fed. Express Corp, 8 F.4th 198 (3rd Cir. 2021). “See 20 C.F.R. § 1002.150 (2021). 11 When Congress enacted USERRA, “other” meant “being the one or ones distinct from that or those first mentioned or implied.”

Duffer v. United Cont'l Holdings, Inc., 173 F. Supp. 3d 689 (N.D. Ill. 2016). · cites it 2× “” 20 C.F.R. § 1002.150 (b). To determine if two types of leave are comparable, the duration of the leave “may be the most significant factor to compare.”

Behalf v. Am. Airlines Grp., Inc., 384 F. Supp. 3d 520 (E.D. Pa. 2019). “20 C.F.R. § 1002.150 (b) (emphasis added).”

James Scanlan v. Am. Airlines Grp. Inc, 102 F.4th 164 (3rd Cir. 2024). · cites it 2× “” 20 C.F.R. § 1002.150 (b). It also provides guidance about comparability: In order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare.”

Tully v. Dep't of Just., 481 F.3d 1367 (Fed. Cir. 2007). “See 20 C.F.R. § 1002.150 (2005) (stating, in interpreting section 4316(b)(1)(B) of US-ERRA for employers other than the federal government, that “[i]n order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor…”

Thaddaeus Myrick v. City of Hoover, Alabama, 69 F.4th 1309 (11th Cir. 2023). “” 20 C.F.R. § 1002.150 (b). Three factors inform our comparison between leaves: (1) the duration of the leave, (2) the purpose of the leave, and (3) the ability of employ- ees to choose when to take the leave.”

Derek Carder v. Cont'l Airlines, Inc., 595 F. App'x 293 (5th Cir. 2014). “See 20 C.F.R. § 1002.150 (c) (requiring employers to provide vacation leave “to an employee on a military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence”).”

Lam v. Cleveland, 2021 Ohio 205 (Ohio Ct. App. 2021). “In determining whether one type of leave is comparable to another type of leave, 20 C.F.R. 1002.150(b) instructs that, “[i]n addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take…”

Won v. Amazon.com, Inc. (E.D.N.Y 2022). · cites it 11× “” 20 C.F.R. § 1002.150 (b). This case principally addresses whether USERRA requires any paid leave for military absences at all, and, if so, whether Amazon violates USERRA with the par- ticular “benefits” it provides for military leaves as compared with other, comparable kinds…”

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— 20 C.F.R. § 1002.150(b) — 3 cases

Casey Clarkson v. Alaska Airlines, Inc., 59 F.4th 424 (9th Cir. 2023). “Under 20 C.F.R. § 1002.150 , the “non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees.”

Casey Clarkson v. Alaska Airlines, Inc. (9th Cir. 2023).

— 20 C.F.R. § 1002.150(c) — 1 case

Adam McLean v. Delta Air Lines, Inc. (11th Cir. 2026).

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