Labor & Employment Law Daily Pilots’ USERRA class claims alleging airlines’ reemployment policies are unlawful survive
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Tuesday, June 25, 2019

Pilots’ USERRA class claims alleging airlines’ reemployment policies are unlawful survive

By Lisa Milam, J.D.

The court refused to dismiss a USERRA class action alleging the airlines’ reemployment policies hurt pilots who take short-term military leave.

A pilot and National Guardsman seeking to pursue class USERRA claims against Alaska Airlines and Horizon Airlines survived the airlines’ motions to dismiss his suit alleging he should have been paid during his short-term military leave, as well as that Horizon’s policies have an adverse impact on servicemembers and strip them of the benefits of seniority. Questions remain that will need further factual development beyond the pleadings, the court said, refusing to dispose of the suit at this early stage. The plaintiff will need to beef up his pleadings as to one of his statutory claims, however (Clarkson v. Alaska Airlines, Inc., June 17, 2019, Rice, T.).

The plaintiff, a turboprop commercial pilot, had worked for both of the defendant airlines. He had taken several periods of short-term military leave for Washington Air National Guard service. He contended that upon returning to his civilian position, he was denied the benefits of reemployment to which he was entitled under USERRA and filed a putative class action asserting the airlines’ practices and policies violate the Act.

“Line holders” and “virtual credits.” As for Horizon specifically, the employee asserted that two interacting policies violate his USERRA reemployment rights. First, the airlines divides turboprop pilots into three categories: Regular Line holders, Reduced Line holders, and Reserve Line holders. Regular Line holders make more money and have a more predictable schedule than Reserve or Reduced Line holders. They also receive a 70-hour per month minimum guarantee and so are guaranteed at least 70 hours of pay per month. To attain Regular Line holder status, a pilot must work at least 70 hours per month. A pilot that works fewer than 70 hours in a month loses his Regular Line holder status and is reclassified as a Reserve Line holder.

Horizon also has adopted a “virtual credit” policy to determine the position a pilot returns to following periods of qualifying leave, including short-term military leave. It credits pilots 2.45 hours of work per day for each day of qualifying military leave. However, it does not give pilots full credit for the flight hours pilots would have flown during periods of military leave.

Because he didn’t receive full credit for the hours he would have worked during periods of military leave, the plaintiff lost his Regular Line status and was demoted to Reserve Line holder. His status was restored the following month when he worked the required 70 hours, but he was demoted again a few months later when his hours dropped below the requisite threshold due to another short-term military leave. (The following month, he was called to military leave once again, but he made up the missing hours by working extra days when he was not on leave.)

DOL finding goes unheeded. According to the plaintiff, the demotion to Reserve Line holder status affected his wages, work schedule, and other benefits of employment following military leave. Other pilot servicemembers are subjected to the same policies and have been similarly harmed, he contended. He complained to management about the policy to no avail. Then he contacted the DOL, which investigated and found that the “virtual credit” policy violates USERRA. However, Horizon has yet to abandon the policy.

How high would he have ascended up the escalator? He argued that being reclassified to Reserve Line holder status following his short-term military leave was an unlawful demotion under USERRA, which provides that employees returning from military service must be reemployed in the position “would have attained with reasonable certainty if not for the absence due to uniformed service.”

Two intersecting doctrines inform the analysis as to what position the employee would have attained absent his military leave: the “escalator principle,” which presumes a certain overall career trajectory would unfold absent military interruption; and the “reasonable certainty test,” which helps to identify the returning service member’s position on this proverbial escalator. But the plaintiff’s complaint didn’t provide sufficient facts from which the court could evaluate his claims under these theories. He didn’t specify the exact date of his reemployment, or his position status on that date, rendering the complaint allegations “wholly inadequate.” The court granted him leave to replead.

Seniority rights. Section 4316(a) of USERRA provides that an employee returning to employment after military service is “entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.” The plaintiff argued that his demotion from Regular Line holder (as a result of being shorted on virtual service credits) denied him the privileges of seniority, including choice of position and work schedule, and guaranteed hours.

Horizon responded that daily service credits above 2.45 hours is not a “seniority-based benefit” within the meaning of USERRA—nor is Regular Line holder status, because a seniority-based benefit under section 4316(a) cannot be a form of short-term compensation for services rendered. But this factual dispute required the court to look beyond the pleadings at the airline’s formal policy as to how Regular Line holder status is determined and maintained, and at what benefits are afforded as a result of this status.

Non-payment of wages. The plaintiff alleged that both defendant airlines have a uniform policy and practice of refusing to pay servicemember-employees their regular wages or salaries during periods of short-term military leave, despite paying employees who take non-military leave such as jury duty or bereavement leave. This practice violates section 4316(b) of USERRA, he claimed. The airlines argued that USERRA does not require civilian employers to pay wages during periods of military service, and that wages for work not performed is not a “benefit” under this statutory provision. The plaintiff countered that “rights and benefits,” pursuant to section 4303(2), includes wages, “which must be given equally to employees on military leave if given to other employees who take comparable forms of leave.”

Again, the pleadings alone were not enough to resolve the dispute, the court said. At minimum, the court will have to compare the non-payment practice as to servicemembers with similarly situated employees who take non-military leave, and whether entitlement to wages is guaranteed by “employment contract, agreement, policy, practice, or plan in effect at the employee’s workplace.”

As a result, the plaintiff’s USERRA claims survived the airlines’ motions to dismiss.

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