By Loyd Willaford and Sarah Burke
In Matter of Andrews v. State, a group of Army Reservists that were also employed by the New York Department of Corrections alleged the Department had the violated Uniformed Services Employment and Reemployment Rights Act after they were denied vacation and sick leave credit during their military absences. A New York court found the officers had failed to offer proof that other employees had received vacation and sick credit while on comparable types of leave and therefore could not continue on with their lawsuit.
USERRA prohibits an employer from denying a member of the uniformed services “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” based upon, among other things, such member’s performance of military service. Generally speaking, “accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence”
Unfortunately for the reservists, they failed to include any evidence to support their claim that other state employees who were absent from work had incurred sick or vacation benefits. Without this evidence, the Court found they could not continue forward with their lawsuit.
This case illustrates the importance of comparator evidence. This is evidence that people in different categories are treated differently. Such evidence is generally necessary to prove discrimination. Here, there was no evidence that other employees had received accrual credit when they were aware from work for authorized reasons like FMLA leave. In the absence of such evidence the Court held that reservists could not prove they were treated differently, and it dismissed their case.
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