Last month, a Federal Judge ruled in favor of the employer on a military leave discrimination case. The plaintiff, Jeong Ko, sued the City of La Habra, California under the Uniformed Services Employment and Reemployment Rights Act (USERRA). He claimed that the City discriminated against him, in violation of his military leave protected status, by refusing to grant him "step" wage increases that he would have obtained had he not taken leave. He also claimed that the City gave him fewer pension benefits as a result of his leave. The City argued that the employee was not entitled to automatic pay increases, and that the increases were discretionary and based on job evaluations. The City pointed out that it had denied Ko step evaluations twice before he took military leave. Regarding the pension, the City argued that Ko failed to submit required documentation of his leave to the pension administrator.
The U.S. District Court granted the City's motion for summary judgment, effectively ending the case (although Ko may appeal). The court ruled that USERRA does not entitle an employee to automatic merit-based promotions or pay increases. In addition, the court distinguished seniority-based and merit-based job advancement.
The case provides lessons for employers. First, employers need to be aware of USERRA, which was enacted to ensure that employees are not discriminated against based on military service. If you have an employee that needs a leave of absence for military duty, make sure that your supervisors are familiar with USERRA's requirements. Second, employers need to make clear, in written policies, whether pay increases are automatic, merit based, or determined by other factors. Employers should also clarify how leaves affect pay and benefits. Third, employers must document any communications with employees about leave rights and responsibilities, and keep that documentation in employee personnel files. Documentation is critical if a dispute later arises over whether the employer acted lawfully regarding the employee's leave.
