Airline Pilot Central Forums - View Single Post

Nevets · 02-19-2008, 04:37 PM

Frequently Asked Questions (Issues Other than Retirement & Insurance Benefits)

The following are questions that have arisen since enactment of FTEPA that we are able to answer based on information currently available. The following represents ALPA’s understanding of the statute and of guidance already provided by the FAA. We will continue to update this list of FAQs as additional questions arise and further information becomes available, including any further guidance and/or clarification from the FAA.

Q.1: What are “required flight deck crew members” and “pilots” for purposes of FTEPA?

A.1: FTEPA permits a person who reached age 60 before December 13 but who is serving on that date as a “required flight deck crew member” for a Part 121 carrier to serve as a pilot for that carrier without loss of prior seniority or longevity. For this purpose, a "required flight deck crew member” means a Flight Engineer or Second Officer, since only such person could have been serving as a “flight deck crew member” after reaching age 60. Hence, the term “required flight deck crew member” as used in this provision only refers to those required to fly (manipulate the controls) the aircraft. “Pilot” has the same meaning under FTEPA as it does elsewhere under the Federal Aviation Act, a person who is qualified to serve at the controls of the aircraft, as either pilot in command or as pilot second in command.

Q.2: A person attained age 60 prior to 12/13/07 but has not yet reached age 65. On that date he/she was engaged in Part 121 operations as a Flight Engineer or Second Officer. Is this person now eligible to serve as a pilot (Captain or First Officer)?

A.2: Under FTEPA, this person now is permitted to serve as a pilot until he/she attains the age of 65. FTEPA does not, however, require a carrier to permit the Flight Engineer or Second Officer to bump or displace into a pilot position. The Age Discrimination in Employment Act (ADEA) would require the carrier, and union, to treat the Flight Engineer or Second Officer at age 60 to 65 in the same way as if he or she were under age 60. Typically, this would mean under the relevant CBA that, in order to become a pilot, the Flight Engineer or Second Officer must exercise his or her seniority to bid into a pilot position. There may be exceptions based on the particular provisions of the relevant CBA.

Q.3: A person attained age 60 prior to 12/13/07 but has not yet reached age 65. On December 13 he had been awarded, and was awaiting training for or was in training for, a Flight Engineer or Second Officer position. Is this person eligible to bid into a pilot (Captain, F/O) seat without loss of seniority or longevity, in the same way as a person who was already serving as a Flight Engineer or Second Officer on December 13?

A.3 ALPA’s position is that this person may exercise his or her seniority to bid for a position as a pilot with that carrier to the same extent as a person who reached age 60 before 12/13/07 and who on that date was already trained, checked out, and serving as a Flight Engineer or Second Officer. This answer applies only to a person who on 12/13/07 was still in the employ of the carrier awaiting training or being trained to be a Flight Engineer or Second Officer. (Collective bargaining provisions regarding filling of vacancies would govern the way in which a crewmember who continues past age 60 could access the position of his choice.) ALPA is seeking an interpretation from the FAA consistent with this position.

Q.4: A person attained age 60 prior to 12/13/07 but has not yet reached age 65. On December 13 he/she was employed in a management position, instructor or in some other non-flying position. Assuming the person was not eligible to become a pilot based on the Flight Engineer/Second Officer exception (see Q/A.2 above), is he/she eligible to return to line flying as a pilot?

A.4: FTEPA provides that a carrier may hire or rehire this person to serve as a pilot but only without credit for prior seniority, longevity, etc. This person is not entitled to retain seniority and longevity credit because he/she attained age 60 prior to 12/13/07 and was not engaged in such operations as a required flight deck crew member on that date. FTEPA does not state that the carrier is obligated to rehire him or her, but the carrier must not engage in age discrimination in its hiring practices.

Q.5 A person who had been serving as a pilot or Flight Engineer was receiving disability benefits from his/her airline’s disability program but attained age 60 prior to 12/13/07. This person subsequently recovers from his/her disability prior to attaining age 65. Is he/she permitted to return to service as a pilot?

A.5 If the person was serving as a pilot for an air carrier that had no Flight Engineers or Second Officers, became disabled and then reached age 60 before 12/13/07, the disability would not give him or her a greater right than any other pilot for that carrier, which is only the right under FTEPA to be considered for rehire without seniority or longevity.

If the person became disabled while serving as a pilot or Flight Engineer/Second Officer for an air carrier that had Flight Engineers or Second Officers, then reached age 60 before 12/13/07, ALPA’s position is as follows:

·First, assume a case where the person had already voluntarily retired before 12/13/07 or worked for an airline where the collective bargaining agreement and disability provisions provided that the person had already exhausted his or her eligibility to return from disability. In that case, if the person recovered from the disability and obtained a First Class Medical he or she would be eligible to be rehired as a pilot but without seniority or longevity.

·Second, assume a case where the person worked for an airline where the collective bargaining agreement and disability provisions permitted the person to return to the airline as a Flight Engineer or Second Officer at the time when he or she recovered from the disability and where the person had not retired, exhausted his or her eligibility to return from disability, or otherwise separated from employment. If the person’s recovery from disability includes securing a First Class Medical, then he or she has the same right to exercise his or her seniority to bid for a pilot position with accrued seniority and longevity as any other Flight Engineer or Second Officer of that company. If a pilot position is not available when the person recovers from disability, or the person is not medically qualified for a pilot position, he or she can return as a Flight Engineer or Second Officer in accordance with the applicable pilot working agreement and terms of the disability plan, and then bid for a pilot position with seniority and longevity in accordance with the provisions of the applicable collective bargaining agreement, when a position becomes available and the person is medically qualified.

Q.6: A person had not yet attained age 60 on 12/13/07. On that date he/she was receiving disability benefits from his/her airline's disability program. This person subsequently recovers from his/her disability prior to attaining age 65. Is he/she permitted to return to service as a pilot (Captain or First Officer)?

A.6: Since this person had not attained age 60 as of 12/13/07, he/she is permitted under FTEPA to serve as a pilot until he/she reaches the age of 65, if otherwise qualified. His/her entitlement to return to service and, if entitled, the terms of his/her return to service would depend on applicable provisions of the CBA, but ADEA requires that such provisions must treat the person during the period age 60 to 65 the same as a person returning to work before age 60.

Q. 7: How does the ICAO “over/under” standard apply to augmented crews in international operations?

A.7: FTEPA provides that a member of the augmented flight deck crew in international operations must be under 60 and does not specifically require that this person be at the controls for any phase of flight. We understand from the FAA that when there is an augmented flight deck crew assigned to a flight, the assigned flight deck crew must include one pilot who is licensed, current, qualified, and appropriately rated for all phases of flight, and younger than age 60. A pilot younger than age 60 does not have to be on the flight deck when a pilot over age 60 is on the flight deck. However, ICAO and the FAA suggest that a pilot under age 60 be at the controls (a crew duty position) during critical phases of the flight (such as below 10,000 feet). The FAA expects air carriers and PICs to use best scheduling practices and crew management to ensure maximum compliance with this recommendation. Issues such as pilot seniority are not considered valid reasons for noncompliance.

The FAA “suggestion” as to critical phases of flight is not part of the statutory language and the impact of the Agency’s suggestion is unclear. The ALPA International Safety Committee endorses this suggestion and will provide further information and guidance as soon as possible.

Q.8: Are flights between a point in the United States and a point in Canada, Mexico or the non-U.S. Caribbean international operations for purposes of FTEPA?

A.8: Yes, under current FARs. The answer is the same even if the applicable CBA treats the applicable operation as domestic flying.

Q.9: Are flights between any one of the lower forty-eight states and Alaska or Hawaii domestic operations for purposes of FTEPA?

A.9: Yes. The answer is the same even if the applicable CBA treats one or both of these operations as international flying.

Q.10: Is a LOA negotiated in order to comply with FTEPA subject to membership ratification?

A.10: Such an LOA may or may not be subject to membership ratification depending upon the nature of the amendment and provisions of the MEC Policy Manual regarding ratification of LOAs. Put another way, the fact that the amendments are negotiated to comply with FTEPA doesn’t in itself change whether they are subject to membership ratification. If the membership declines to ratify reasonable terms, however, there is still an obligation to conform the CBA to FTEPA, and the implications of this requirement would need to be considered by the appropriate governing body. See A.11 below.

Q.11: What happens if ALPA refuses to negotiate, or the membership declines to ratify, CBA provisions required to comply with FTEPA?

A.11: FTEPA does not permit a carrier to make a unilateral change to the CBA or to a benefit plan, but does require that the parties negotiate terms to comply with the new law. So failure to do so could expose ALPA to risks of liability whether the failure was due to non-negotiation or non-ratification.

02-19-2008, 04:37 PM	#2 (permalink)
Nevets ALPA Pilot Joined APC: Dec 2007 Position: EMB 145 CPT Posts: 648	Frequently Asked Questions (Issues Other than Retirement & Insurance Benefits) The following are questions that have arisen since enactment of FTEPA that we are able to answer based on information currently available. The following represents ALPA’s understanding of the statute and of guidance already provided by the FAA. We will continue to update this list of FAQs as additional questions arise and further information becomes available, including any further guidance and/or clarification from the FAA. Q.1: What are “required flight deck crew members” and “pilots” for purposes of FTEPA? A.1: FTEPA permits a person who reached age 60 before December 13 but who is serving on that date as a “required flight deck crew member” for a Part 121 carrier to serve as a pilot for that carrier without loss of prior seniority or longevity. For this purpose, a "required flight deck crew member” means a Flight Engineer or Second Officer, since only such person could have been serving as a “flight deck crew member” after reaching age 60. Hence, the term “required flight deck crew member” as used in this provision only refers to those required to fly (manipulate the controls) the aircraft. “Pilot” has the same meaning under FTEPA as it does elsewhere under the Federal Aviation Act, a person who is qualified to serve at the controls of the aircraft, as either pilot in command or as pilot second in command. Q.2: A person attained age 60 prior to 12/13/07 but has not yet reached age 65. On that date he/she was engaged in Part 121 operations as a Flight Engineer or Second Officer. Is this person now eligible to serve as a pilot (Captain or First Officer)? A.2: Under FTEPA, this person now is permitted to serve as a pilot until he/she attains the age of 65. FTEPA does not, however, require a carrier to permit the Flight Engineer or Second Officer to bump or displace into a pilot position. The Age Discrimination in Employment Act (ADEA) would require the carrier, and union, to treat the Flight Engineer or Second Officer at age 60 to 65 in the same way as if he or she were under age 60. Typically, this would mean under the relevant CBA that, in order to become a pilot, the Flight Engineer or Second Officer must exercise his or her seniority to bid into a pilot position. There may be exceptions based on the particular provisions of the relevant CBA. Q.3: A person attained age 60 prior to 12/13/07 but has not yet reached age 65. On December 13 he had been awarded, and was awaiting training for or was in training for, a Flight Engineer or Second Officer position. Is this person eligible to bid into a pilot (Captain, F/O) seat without loss of seniority or longevity, in the same way as a person who was already serving as a Flight Engineer or Second Officer on December 13? A.3 ALPA’s position is that this person may exercise his or her seniority to bid for a position as a pilot with that carrier to the same extent as a person who reached age 60 before 12/13/07 and who on that date was already trained, checked out, and serving as a Flight Engineer or Second Officer. This answer applies only to a person who on 12/13/07 was still in the employ of the carrier awaiting training or being trained to be a Flight Engineer or Second Officer. (Collective bargaining provisions regarding filling of vacancies would govern the way in which a crewmember who continues past age 60 could access the position of his choice.) ALPA is seeking an interpretation from the FAA consistent with this position. Q.4: A person attained age 60 prior to 12/13/07 but has not yet reached age 65. On December 13 he/she was employed in a management position, instructor or in some other non-flying position. Assuming the person was not eligible to become a pilot based on the Flight Engineer/Second Officer exception (see Q/A.2 above), is he/she eligible to return to line flying as a pilot? A.4: FTEPA provides that a carrier may hire or rehire this person to serve as a pilot but only without credit for prior seniority, longevity, etc. This person is not entitled to retain seniority and longevity credit because he/she attained age 60 prior to 12/13/07 and was not engaged in such operations as a required flight deck crew member on that date. FTEPA does not state that the carrier is obligated to rehire him or her, but the carrier must not engage in age discrimination in its hiring practices. Q.5 A person who had been serving as a pilot or Flight Engineer was receiving disability benefits from his/her airline’s disability program but attained age 60 prior to 12/13/07. This person subsequently recovers from his/her disability prior to attaining age 65. Is he/she permitted to return to service as a pilot? A.5 If the person was serving as a pilot for an air carrier that had no Flight Engineers or Second Officers, became disabled and then reached age 60 before 12/13/07, the disability would not give him or her a greater right than any other pilot for that carrier, which is only the right under FTEPA to be considered for rehire without seniority or longevity. If the person became disabled while serving as a pilot or Flight Engineer/Second Officer for an air carrier that had Flight Engineers or Second Officers, then reached age 60 before 12/13/07, ALPA’s position is as follows: ·First, assume a case where the person had already voluntarily retired before 12/13/07 or worked for an airline where the collective bargaining agreement and disability provisions provided that the person had already exhausted his or her eligibility to return from disability. In that case, if the person recovered from the disability and obtained a First Class Medical he or she would be eligible to be rehired as a pilot but without seniority or longevity. ·Second, assume a case where the person worked for an airline where the collective bargaining agreement and disability provisions permitted the person to return to the airline as a Flight Engineer or Second Officer at the time when he or she recovered from the disability and where the person had not retired, exhausted his or her eligibility to return from disability, or otherwise separated from employment. If the person’s recovery from disability includes securing a First Class Medical, then he or she has the same right to exercise his or her seniority to bid for a pilot position with accrued seniority and longevity as any other Flight Engineer or Second Officer of that company. If a pilot position is not available when the person recovers from disability, or the person is not medically qualified for a pilot position, he or she can return as a Flight Engineer or Second Officer in accordance with the applicable pilot working agreement and terms of the disability plan, and then bid for a pilot position with seniority and longevity in accordance with the provisions of the applicable collective bargaining agreement, when a position becomes available and the person is medically qualified. Q.6: A person had not yet attained age 60 on 12/13/07. On that date he/she was receiving disability benefits from his/her airline's disability program. This person subsequently recovers from his/her disability prior to attaining age 65. Is he/she permitted to return to service as a pilot (Captain or First Officer)? A.6: Since this person had not attained age 60 as of 12/13/07, he/she is permitted under FTEPA to serve as a pilot until he/she reaches the age of 65, if otherwise qualified. His/her entitlement to return to service and, if entitled, the terms of his/her return to service would depend on applicable provisions of the CBA, but ADEA requires that such provisions must treat the person during the period age 60 to 65 the same as a person returning to work before age 60. Q. 7: How does the ICAO “over/under” standard apply to augmented crews in international operations? A.7: FTEPA provides that a member of the augmented flight deck crew in international operations must be under 60 and does not specifically require that this person be at the controls for any phase of flight. We understand from the FAA that when there is an augmented flight deck crew assigned to a flight, the assigned flight deck crew must include one pilot who is licensed, current, qualified, and appropriately rated for all phases of flight, and younger than age 60. A pilot younger than age 60 does not have to be on the flight deck when a pilot over age 60 is on the flight deck. However, ICAO and the FAA suggest that a pilot under age 60 be at the controls (a crew duty position) during critical phases of the flight (such as below 10,000 feet). The FAA expects air carriers and PICs to use best scheduling practices and crew management to ensure maximum compliance with this recommendation. Issues such as pilot seniority are not considered valid reasons for noncompliance. The FAA “suggestion” as to critical phases of flight is not part of the statutory language and the impact of the Agency’s suggestion is unclear. The ALPA International Safety Committee endorses this suggestion and will provide further information and guidance as soon as possible. Q.8: Are flights between a point in the United States and a point in Canada, Mexico or the non-U.S. Caribbean international operations for purposes of FTEPA? A.8: Yes, under current FARs. The answer is the same even if the applicable CBA treats the applicable operation as domestic flying. Q.9: Are flights between any one of the lower forty-eight states and Alaska or Hawaii domestic operations for purposes of FTEPA? A.9: Yes. The answer is the same even if the applicable CBA treats one or both of these operations as international flying. Q.10: Is a LOA negotiated in order to comply with FTEPA subject to membership ratification? A.10: Such an LOA may or may not be subject to membership ratification depending upon the nature of the amendment and provisions of the MEC Policy Manual regarding ratification of LOAs. Put another way, the fact that the amendments are negotiated to comply with FTEPA doesn’t in itself change whether they are subject to membership ratification. If the membership declines to ratify reasonable terms, however, there is still an obligation to conform the CBA to FTEPA, and the implications of this requirement would need to be considered by the appropriate governing body. See A.11 below. Q.11: What happens if ALPA refuses to negotiate, or the membership declines to ratify, CBA provisions required to comply with FTEPA? A.11: FTEPA does not permit a carrier to make a unilateral change to the CBA or to a benefit plan, but does require that the parties negotiate terms to comply with the new law. So failure to do so could expose ALPA to risks of liability whether the failure was due to non-negotiation or non-ratification.