Moss v. United Airlines: No USERRA Violation for Denying Sick Accrual on Military Leave

Michael Moss, a pilot employed by United Airlines, Inc., served as a Lieutenant Colonel in the United States Marine Corps Reserve. While employed as a pilot, Moss periodically took military leave to fulfill his service obligations. He brought a class action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), asserting that United violated the statute by limiting sick-time accrual for pilots on military leave.

The claim focused on United’s policy after its merger with Continental Airlines. Following standardization of leave policies in 2014, United allowed pilots to accrue sick leave only during the first ninety days of military leave. Moss alleged that this policy violated USERRA because sick time constituted a seniority-based benefit that should have continued to accrue throughout military leave. He also asserted that the policy improperly treated military leave differently from other forms of leave.

The district court granted summary judgment in favor of United on the sick-time accrual claim. Moss appealed.

United’s Sick-Time Accrual Policy

Under United’s collective bargaining agreement, pilots accrued five hours of sick leave for each bid period of active employment, up to a maximum of 1,300 hours. A bid period generally corresponded to one month. Active employment included periods when a pilot was available for assignment, on sick leave, or on vacation. Sick leave could be used only in cases of actual illness and was not paid out upon separation from employment.

All pilots accrued sick time at the same rate regardless of seniority. There was no vesting requirement tied to length of service, and pilots did not accrue additional sick time by working overtime or remaining employed for longer periods.

Legal Framework Under USERRA

USERRA protects the employment rights of servicemembers by requiring employers to provide returning employees with the seniority, rights, and benefits they would have attained if their employment had not been interrupted by military service. Benefits protected under USERRA fall into two categories: seniority-based benefits and non-seniority-based benefits.

A benefit qualifies as seniority-based only if it would have accrued with reasonable certainty during continuous employment and if its real nature is a reward for length of service. Benefits that function as compensation for work performed, rather than as incentives for continued employment, do not fall into this category.

Analysis of Sick-Time Accrual

The Court of Appeals examined whether sick-time accrual met the definition of a seniority-based benefit. The court concluded that although sick time would have accrued automatically had Moss remained continuously employed, its real nature was not a reward for length of service.

The court emphasized several features of United’s policy. Sick time accrued uniformly for all pilots, regardless of tenure. There was no vesting threshold tied to years of service, and the benefit could only be used when a pilot was actually ill. Sick time therefore operated as short-term compensation designed to allow employees to recover from illness, rather than as a longevity-based incentive to remain employed.

The court also considered whether the presence of a work requirement supported this characterization. Because accrual depended on periods of active employment and excluded certain forms of leave, the policy reflected compensation tied to work rather than to seniority. These features distinguished sick time from benefits such as pensions or severance pay, which reward long-term service.

Treatment of Other Leave Comparisons

Moss initially argued that military leave should be compared to other forms of leave for purposes of non-seniority-based benefits. That argument was not pursued on appeal. He instead attempted to compare different military leave policies used by United and Continental before their merger. The Court of Appeals declined to consider this argument because it had not been properly presented to the district court.

The Court’s Decision

The Court of Appeals held that sick-time accrual under United’s policy was not a seniority-based benefit protected by USERRA. Because the benefit functioned as compensation for work performed rather than a reward for length of service, United did not violate USERRA by limiting sick-time accrual during extended military leave. The court affirmed the district court’s grant of summary judgment in favor of United.

Assistance With USERRA Matters

If you’ve experienced issues involving military service and employment protections, reach out to our team through our contact page to learn how our team can assist with your claim.