A federal court in Illinois granted Rule 23 class certification to former United and Continental pilots who claimed they were denied accrued sick and vacation time, and pension pay, while they were on military leave, in violation of USERRA. The parties did not dispute that Rule 23’s requirements were met and the court agreed. As for the dispute over class definitions, the court largely sided with the plaintiff, finding it unnecessary to create subclasses that reflected periods during which pilots of the merged airlines were working under different collective bargaining agreements (Moss v. United Airlines, Inc., October 16, 2018, Durkin, T.).
According to the named plaintiff, pilots for United Air Lines and Continental Airlines were deprived of sick time accrual, vacation time accrual, and pension benefit payments, during military leave, in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). In October 2010, United and Continental merged, becoming subsidiaries of United Continental Holdings. United pilots and Continental pilots continued working under separate collective bargaining agreements until December 2012, when an agreement covering both groups of pilots was approved. United and Continental merged into a single entity (United Airlines) in March 2013.
Sick time. With respect to sick time accrual while on military leave, Continental pilots did not accrue it and the United pilots’ CBA didn’t address it, though a United policy provided it. The single CBA adopted in December 2012 does not address it. At first, under the single CBA, Continental pilots still did not accrue sick time on military leave, while United pilots did. This continued until January 1, 2014, when practice under the single CBA was conformed so that no pilots accrued sick time during military leave.
Vacation. As for vacation time, United pilots did not accrue it during military leave exceeding one month and Continental pilots did not accrue it once leave exceeded 90 days. Under the merged CBA, all pilots accrue vacation time through the first 90 days of military leave, then accrual is reduced.
Pension pay. The plaintiff claimed that, at a certain point, all pilots who had been furloughed were paid a “longevity” or pension credit. The payments were allegedly made based on actual work time and did not account for time on military leave.
Rule 23 requirements met. Addressing the plaintiff’s motion for class certification on the USERRA claims, the court noted that the defendants did not dispute that Rule 23’s requirements were met. Agreeing, the court noted that the classes were made up of “hundreds of pilots,” and whether they were improperly deprived of sick and vacation time accrual or pension payments were issues common to the classes and those issues predominated. In addition, there was nothing about the named plaintiff’s experience that was atypical and class counsel was sufficiently experienced in class litigation and USERRA.
The only dispute to be resolved by the court involved class definitions.
Sick time accrual class. With respect to sick time, the plaintiff proposed a single subclass of past and present pilots from April 1, 2005, to the present who did not accrue sick time while on periods of military leave. The defendants, however, argued that two subclasses were needed to account for the fact that different CBAs were in effect at different times. Siding with the plaintiff, the court explained that there was no argument that the CBA terms would be relevant to determining whether the defendants’ sick time policies violated the USERRA, nor did the defense argue that referring to the CBAs was necessary to define the members of a class.
Also rejected was the defendants’ argument that pilots who no longer work for them and who never had zero sick days should be excluded from the class because unused sick days are not cashed out on termination, so the loss of extra sick days would not be an injury. The court agreed with the plaintiffs that even a low number of sick days (greater than zero) might cause pilots to work when sick, and this was a cognizable injury, so they should be included in the class.
That said, the court modified the sick time accrual class to reference the 1,300 hour cap on accrual of sick days, so the class included past and present pilots from April 1, 2005, to the present who did not accrue sick time while on periods of military leave and were not at the maximum accrual of 1,300 hours at the time of their military leave or any time thereafter.
Vacation time class. As with the sick time class, the court rejected the defendants propose to impose subclasses based on different CBAs. It defined the class as: “All past and present pilots employed by the Company from April 1, 2005, to the present, who did not accrue vacation time while on periods of military leave from April 1, 2005, to the present.”
Pension pay class. The plaintiff’s proposed pension pay subclass was flawed because it was a “fail-safe” class defined by success on the merits (it referred to a violation of USERRA) and the plaintiff did not object to the defendant’s proposed revision, so the court certified the following pension pay class: “Those pilots employed by the Company who: (i) received a capped pay longevity credit for furloughees under Paragraph 4 of UPA LOA 25; (ii) took military leave at any point during the period from December 1, 2012 to January 31, 2016; and (iii) received a pension contribution under Paragraph C of LOA 38 on or about April 1, 2016 based on actual pay received from December 1, 2012 through January 31, 2016.” However, the court expressed the caveat that the parties needed to explain the significance of the April 1, 2016 date because it did not appear in the pleadings.
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