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Longtime American Airlines pilot Mark Woodall thought nothing of it when he took 16 days of military leave for a routine training with the U.S. Naval Reserve in June 2001. But eight months later, he learned the airline had reduced his 21 annual paid vacation days to 19. The company had counted his military leave as a "leave of absence," which meant he couldn't accrue vacation time during that period.

Cutting two vacation days may seem innocuous, but a recent DOJ lawsuit suggests otherwise. The Jan. 12 complaint, which could affect more than 100 former and present American Airlines pilots, suggests the company violated their rights under the Uniformed Services Employment and Reemployment Act (USERRA) when it allegedly targeted their employment benefits. This is the first class action lawsuit the government has filed under USERRA, the law protecting employees who take military leave. It's not likely to be its last.

In some cases, this is true. The regulations make clear, for example, that employers must provide notice to employees of their rights under USERRA. They describe the timetables and procedures that service members must follow when reporting back to work. They explain employers' obligations with regard to pension plans and health care coverage for returning employees. They even clear up some of the confusion over the types of benefits at issue in the American Airlines case. But the regulations leave other aspects of the law dangerously ambiguous.

Continuing Troubles

"USERRA practically requires courts to give any benefit of the doubt to the employee," Thelen says.

With that in mind, any employer planning to use a "reduction in force" defense should be able to show that the layoff was purely economic and unrelated to an employee's military service.

staff Writer

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