Southwest Airlines has been in the news a lot lately. From changing their “bags fly free” policy to assigned seating and new board procedures, there have been a lot of noteworthy things to discuss. With all of that attention, it would be easy to overlook recent litigation involving Southwest’s military leave policies.

In late 2025, Southwest agreed to settle a Uniformed Services Employment and Reemployment Rights Act (USERRA) class action lawsuit brought by its pilots and other workers. The lawsuit alleged that their policy regarding military leave amounted to unlawful discrimination against military service members.

Why Southwest’s Settlement is a Wake-Up Call for Employers

In what is described as a historic settlement, Southwest agreed to pay $18.5 million to resolve a lawsuit that had been pending for more than five years. In addition to the monetary settlement, Southwest agreed to provide up to ten (10) days of paid short-term military leave to eligible employees each year for the next five years.

If those numbers scare you, they should.

In the class action lawsuit, the pilots alleged that Southwest violated USERRA when, among other things, they failed to provide employees who took short-term military leave with paid leave while simultaneously providing employees who took leave for jury duty, union duty, and bereavement, which they allege are comparable, with paid leave.

They further alleged that Southwest was aware for many years, but took no action to fix the inconsistencies in their leave policies.

We have seen a number of lawsuits in recent years involving short-term military leave. Many of them align with what is alleged against Southwest, so employers need to understand what USERRA requires and take appropriate steps to ensure their policies and practices do not open them up for expensive and time-consuming litigation.

USERRA Overview: Employer Obligations and Employee Rights

USERRA protects military service members and veterans, including reservists and National Guard members, from employment discrimination on the basis of their military service. It also provides job protections for employees who take leave for military service.

Similar to leave taken under the Family and Medical Leave Act (FMLA), service members who take leave for military duty, whether on a voluntary or involuntary basis, are entitled to be reinstated to the job they had (or would have had) when they took leave for military service.

USERRA doesn’t specifically require that employees who are service members be paid for their military service. However, it does say that service members who are “absent from a position of employment by reason of service in the uniformed services” are entitled to the same “rights and benefits not determined by seniority” as nonmilitary employees who take leave.

That single phrase—same rights and benefits—has become the focal point of much of the recent litigation involving military leave.

Comparable Leave under USERRA: When Paid Military Leave is Required

Courts across multiple jurisdictions, including the Ninth Circuit Court of Appeals (Ninth Circuit), have ruled that when employers provide pay for a comparable non-military leave, they must provide pay for military leave. So, then what is considered comparable leave?

The Ninth Circuit, in another lawsuit brought against an airline, laid out a standard for employers to use in making that determination.

In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit ruled that when determining whether a non-military leave is comparable, an employer should consider the duration, purpose, and employee’s control over timing of the leave, with duration being the most important factor in that determination. In short, it comes down to equal pay for equal leave.

Jury duty, bereavement, witness appearance, emergencies, and even sick leave are common examples of leaves with comparable duration, purpose, and control over timing. Employers that offer paid leave in those circumstances and others where leave is short and unexpected would likely need to provide paid leave for military service to avoid potential claims.

How to Reduce USERRA Liability

To be clear, this isn’t a risk solely associated with the airline industry. Other employers have faced similar lawsuits, including class action lawsuits, for violations that impact a significant portion of their workforce.

Now is a good time for employers to audit their leave policies and past practices for potential legal exposure. Don’t wait for a lawsuit.

• Identify what non-military paid leaves the company offers that might be considered comparable to short-term military leave. Document your analysis and how you came to your determination.
• Consider adopting a paid leave policy for short-term military leave. Southwest is offering up to 10 days per year starting in 2026.
• When auditing your policies, look for discrepancies in any benefits not determined by seniority, not just leave. If you discover discrepancies, address them before they become an issue.
• If an allegation is made or a complaint is filed, address it and do so promptly.

Lawsuits are costly and time-consuming. Employers that take the time now to audit policies, correct disparities, and respond promptly to concerns put themselves in a far stronger position than those that wait to react.

By: Audra L. Parton, JD

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