By Tulay Turan, J.D.
Pilots’ sick time and vacation accrual are tied to work requirements rather than the fact of simply being employed, so they are neither seniority based nor USERRA protected.
An Army Reservist who was a pilot for American Airlines cannot proceed with his USERRA class action where three types of benefits – sick leave, vacation, and bonuses — were not seniority based, and five types of absences – sick leave, union duty, jury duty, vacation, and FMLA – were not comparable to absences for military leave, a federal district court in Texas ruled. As such, these benefits were not USERRA protected and the court granted summary judgment to American and denied the pilot’s motion for class certification as moot (Hoefert v. American Airlines, Inc., January 9, 2020, Pittman, M.).
Benefits accrual while on leave. The pilot was absent from work from July 12, 2012, through February 13, 2015, to fulfill his Army Reserve obligations. During this time, he accrued sick leave for the first 31 days and for the month of February 2015, but did not accrue sick leave from August 2012 through January 2015. He accrued vacation leave for the period of July 12, 2013, through December 31, 2013, and for the month of February 2015. He did not accrue vacation leave from January 1, 2014, through January 31, 2015. He received monthly operations-based bonus payments from May, June, and July 2012, but did not receive any monthly operations-based bonus payments from August 2012 through January 2015.
Prior court proceedings. In September 2017, the pilot, as an individual and on behalf of himself and all others similarly situated, filed this lawsuit in an Arizona state court against American, alleging violations of USERRA Sections 4316(a) and (b). American transferred the case to federal district court; the pilot eventually filed an amended complaint. In 2018, he filed a motion for class certification to certify four classes. In 2019, the court ordered the pilot to identify the types of absences he alleged were comparable to absences for military leave. The parties also filed a joint stipulation addressing military absences, sick-time accrual rates, vacation accrual rates, and monthly operations-based bonus payments. In addition, both parties filed summary judgment motions. The motion for class certification, American’s motion for summary judgment, and the pilot’s motion for partial summary judgment were before the court.
Seniority-based benefits? The court rejected the pilot’s argument that American violated USERRA Section 4316(a) by not providing him with sick-time accrual, vacation accrual, and monthly operations-based bonuses while he was on military leave. The court found these benefits were not seniority based and, thus, were not protected under the law.
Sick-time accrual. The court agreed with American that sick-time accrual was non-seniority based because under the applicable CBAs, sick time is a form of short-term compensation for services rendered. The applicable CBAs provide that pilots’ sick-time accrual is tied to time working or being available to work, rather than simply being employed. That is, “month of service”— defined as fifteen days of “service” in a month — is required for a pilot to obtain sick accrual. “Accordingly, based on the language of the applicable CBAs, the real nature of the sick-time accrual at issue is for actual work performed rather than a reward for length of service,” the court wrote. Therefore, the court found sick-time accrual was not a seniority-based benefit and, thus, was not protected under Section 4316(a).
Vacation-time accrual. Likewise, the court found vacation-time accrual was not a seniority-based benefit. First, the federal regulation implementing USERRA states that “[a]s a general matter, accrual of vacation leave is considered to be a non-seniority benefit[.]” Second, in Foster v. Dravo Corp., the Supreme Court held that vacation days accruing hourly are not seniority-based but rather are a reward for respite from a lengthy period of labor. Third, the CBAs at issue provide vacation accrual based on active status—that is being available for service—for at least fifteen days rather than mere employment for at least fifteen days. “Here, the disputed vacation days accrue not to incentivize long-term employment, but rather to compensate and provide a respite from American’s pilots’ past efforts,” the court wrote. Therefore, vacation-time accrual was tied to an actual work requirement and the court found it was a non-seniority-based benefit and not protected under Section 4316(a).
Operations-based bonus payments. Regarding the last type of benefit, the court found bonus payments were not seniority based either because the bonuses were tied to actually performing services on behalf of American. “To read the operations-based bonus payments—that is, payments for meeting certain operational benchmarks—as anything other than compensation for work actually performed, is to ignore the real nature of the benefit,” the court wrote. Because the three benefits were non-seniority based and not protected, the court granted American’s motion for summary judgment.
Comparable leaves of absence? Turning to the pilot’s alternative argument, the court rejected his contention that if these benefits were not seniority based, American violated USERRA Section 4316(b) by not providing him with such benefits while on military leave when American did provide such benefits to pilots on comparable leaves of absence. The court found the five types of leave at issue were not comparable to military absences. To determine whether they were comparable, the court considered (1) the duration of leave, (2) the purpose of leave, and (3) the ability of the employee to choose when to take the leave.
Sick leave. The court found that sick and military absences are not comparable because the purposes are different. Military absences are “forward looking” whereas sick leave is “backward looking.” Military leave is provided as the need arises going forward (when the pilot is called to service). Sick leave is based on past days worked. In addition, the durations are different. The average length of all military leave was 23.2 days; the average length of all sick absences was 6.6 days. Thus, because the absences are not comparable, the pilot is not entitled to benefits while on military leave that other pilots may accrue while on sick leave.
Union service. The court also found that absences due to duty with the association (union service) were not comparable to military absences. The benefits allegedly accruing while other pilots are absent for union service are not actually paid by American, but rather by the union. As such, they are not benefits “provided by” American as required by Section 4316(b)(1)(B). In addition, the absences serve different purposes. Being a union representative and being on leave for such representation is voluntary while military service can be compulsory.
Jury duty. Regarding jury duty, the court found the significant differences in duration made jury duty and military absences not comparable. The average length of military duty was 23.2 days whereas the average length of absence for jury duty was 1.8 days.
Vacation. The court, also focusing on the differences in duration, found that vacation and military absences were not comparable. Under the applicable CBAs, the maximum amount of days that a pilot may be out for vacation is 31 days in a given year. On the other hand, from July 2012 through December 2018, 1,570 military absences lasted for one month or longer.
FMLA leave. Again, focusing on the differences in average duration, the court found FMLA and military absences were not comparable. Thus, having concluded that none of the other benefits the pilot claims he was deprived of in violation of USERRA concerned comparable absences, the court granted American’s motion for summary judgment on his Section 4316(b) claim.
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