Originally Posted by
milky
A CPO on my jumpseat told me that it was not Delta's policy about no concurrent pay. He said it was the USERRA policy. So, the question is are you being paid when you are on a layover? Are you being paid on long call? Or are you paid for the days you fly and then given a guarantee for what is left over? It seems that the company's interpretation is that you are basically being paid by the company just about every minute from sign in to sign out and X day to X day no matter what is going on. I personally do not believe I am paid 24 hours per day when I am on long call. There is a 12 hour call out. Why would I not consider any time before I am called to be used my own time? Why would I not consider block in to van pick up on a 30-hour layover my own time. I do not consider that concurrent duty. This company does.
The CP is lying, or misinformed. USERRA does not prohibit this. While it may be reasonable to say that a military pilot should refrain from flying military aircraft – an activity that could preclude timely reporting – there are forms of military duty that would not. Under 38 U.S.C. 4311, (a), an employer may not deny any benefit of employment based upon membership in the uniformed service, and furthermore, under 4311 (c)(1)(a), an employer is in violation of this prohibition “unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service…” In other words, can Delta demonstrate a similar prohibition against ALL forms of outside employment? Does Delta take the same actions against all employees who violate a policy against ALL outside employment?
Furthermore, 38 USC 4203 is in this case controlling, insofar as “Nothing in this chapter shall supersede, nullify or diminish any Federal or State law(including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.” In other words, Delta may not selectively choose paragraphs of 38 USC to void protections, contracts, or provisions available to any other non-military employee, as underscored by 4311(a), which bars discrimination.
Finally, I believe that the best compass for the formulation of MLOA policy is found in 20 CFR 1002.7(a), which lays out the doctrine that USERRA is a floor, not a ceiling, for benefits and protections afforded military members. That, and 38 USC 4203, which encompasses, under USERRA protection, any benefit/agreement/law/contract that would normally accrue to an employee, no matter what status, and to do otherwise invites charges of discrimination under USERRA.