FDX Return from long term MLA
03-31-2014, 10:33 AM
#21
Gets Weekends Off
Joined APC: Aug 2012
Posts: 711
Originally Posted by Osmosis
- Be prepared to and expect them to make a class for you. The class most likely will start the first possible date following your reemployment date. You will in fact receive an email which aircraft you can train into, and a request to inform them what you want. That email will include training dates to help your decision. I would update your standing bid. Trust but verify! If the email doesn't reflect what you think you could have held on a bid while you were gone, you have grounds to get that fixed. For the 757, you will have no issues though.
- The B Fund contribution is paid out exactly how written above. They will in fact do a one year look back (12 Months) before you went on LTMLA and use that to base your contribution. That look back will be based solely on the number of hours paid out that 12 months, but will not include anytime you were on MLA that year. I am not sure how legal/correct that is, as my understanding B Fund would be based on what you could have earned, so 844 hours a year (Except when the company implemented 4A2B). Numerous attempts to clarify that with our Union Military Rep were not returned. USERRA permits two types of calculations to determine what you should consider your income. If you were salaried, it's simple and it is what it is. For us, we can bid different amounts of hours (and, thus our compensation is variable) and USERRA permits the company to do a look back. They should use the 12 months prior as your sample. But, if you took two months of military leave during that 12 months, the company doesn't get to use 10 months of pay as your average. This could be important to you since your multiplier (7 years) is high. USERRA says you can never be harmed by your service. For anyone who lost out when/if the company didn't impute military leave in that 12 months look-back, the company did it wrong. [I never experienced help from the union and had to do all of my MLA "fights" on my own.] Contact crew pay data or Vanguard, get your 12 month average that is used, compare it to your own figures and contact Capt Sam Wright as I listed previously and he'll provide you absolutely fantastic information and help.
- Sick accrual is also given by the company to returning pilots coming off LTMLA. As described, they look at how much sick you used the 12 months before you went on LTMLA. The less you used, the more you receive... and in your case X 7. If you used 72 hours of sick the 12 months before going on LTMLA, you will receive nothing. If you used no sick the 12 months preceding LTMLA, you will receive 72 x 7. I'd watch this like a hawk and ensure it gets in your account. Someone's sick usage does not matter when calculating the next year's accrual per the CBA, but for some reason does when calculating it for returning from LTMLA. Clarification requests to our Union Military Rep and Enforcement were never returned, but this method of calculating sick is not complaint with the CBA. While I'm not a lawyer, I did a LOT of research on USERRA and have read every law review article on Law Review Index it's great information. From Law Review 59 "Q: Do I continue accruing vacation days while I am away from my civilian job performing service in the uniformed services? A: Probably not, because vacation days do not qualify as “perquisites of seniority.” The pertinent USERRA provision is as follows: “A person who is re-employed under this chapter is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of 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.” [38 U.S.C. 4316(a).] This provision codifies the “escalator principle” first enunciated by the Supreme Court in its first case under the Veterans’ Reemployment Rights (VRR) law, which was replaced by USERRA in 1994. The Supreme Court held, “[The returning veteran] does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during [his military service].” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-85 (1946).
The escalator principle applies to perquisites of seniority. A two-part test determines whether a particular benefit qualifies as a perquisite of seniority: (a) The benefit must be intended to be a reward for length of service, not a form of short-term compensation; and (b) It must be reasonably certain that the veteran would have attained the benefit if he or she had remained continuously employed. A vacation day is deemed to be a form of short-term compensation, not a reward for length of service. Thus, the escalator principle does not entitle the returning veteran to the vacation days that he or she would have earned if continuously employed. See Foster v. Dravo Corp., 420 U.S. 92 (1975).
On the other hand, you can claim the accrual of vacation days under USERRA’s “furlough or leave of absence” clause, if and to the extent that employees on some form of non-military leave of absence continue accruing vacation days. [See Law Reviews 41 and 58.]"
RSA is similar to vacation days as not counting as perquisites of seniority, but at FedEx RSA accrual is unique in that our overage of RSA over 686 goes to your pension. That fact is what makes FedEx "pay" us RSA for the time we were gone--it's because it's pension related. We should never give up this overage clause in our contract because then we don't have Federal Law to stand on to get our DSA bumped up when we return. Now that we've established that FedEx must "pay" us RSA, there are two ways to calculate it...just like pay for pension purposes. Since all pilots don't have a firm amount they use each year, FedEx is allowed (per my investigation) to use the same type of look back as they do for pay. That's why there's a bit of luck involved here. If you didn't get sick and didn't use any RSA the 12 months prior, you'll get a big bump being gone 7 years. If you used a lot, you lose out...not very fair, but I couldn't find any way around it during my research.
- 401K Contribution Make-up. (First I heard of that and wish I would have known that)
Remember you have 3 times the amount of time you were gone (not to exceed 5 years) to make up 401(k) (not to exceed annual maximums if you contributed to TSP)...this goes for anyone coming back from MLA. So, don't pass up the "free" $500 each year if you still have this available and are reading this note! Contact Vanguard, as I said before, they got it right and are easy to work with.
- The contract signing bonus paid out during your absence was not returned to me after fighting it. Attempts to contact our Union Military Rep for backup to this fight were not returned. The company would not return it, but I hope you have different results. As far as my research shows, this should have been paid and I know it wasn't. From the previous Law Review I quoted: A two-part test determines whether a particular benefit qualifies as a perquisite of seniority: (a) The benefit must be intended to be a reward for length of service, not a form of short-term compensation; and (b) It must be reasonably certain that the veteran would have attained the benefit if he or she had remained continuously employed. I believe (b) is absolutely correct for anyone on MLA so we have to look to part (a) of the test. If you believe "The benefit must be intended to be a reward for length of service" then you should get it, but if it's a "form of short-term compensation" like vacation or RSA, then you shouldn't. I have never asked Capt Wright this question...any of you like to present him the facts and get back to us on this?
Good luck and welcome back!
- The B Fund contribution is paid out exactly how written above. They will in fact do a one year look back (12 Months) before you went on LTMLA and use that to base your contribution. That look back will be based solely on the number of hours paid out that 12 months, but will not include anytime you were on MLA that year. I am not sure how legal/correct that is, as my understanding B Fund would be based on what you could have earned, so 844 hours a year (Except when the company implemented 4A2B). Numerous attempts to clarify that with our Union Military Rep were not returned. USERRA permits two types of calculations to determine what you should consider your income. If you were salaried, it's simple and it is what it is. For us, we can bid different amounts of hours (and, thus our compensation is variable) and USERRA permits the company to do a look back. They should use the 12 months prior as your sample. But, if you took two months of military leave during that 12 months, the company doesn't get to use 10 months of pay as your average. This could be important to you since your multiplier (7 years) is high. USERRA says you can never be harmed by your service. For anyone who lost out when/if the company didn't impute military leave in that 12 months look-back, the company did it wrong. [I never experienced help from the union and had to do all of my MLA "fights" on my own.] Contact crew pay data or Vanguard, get your 12 month average that is used, compare it to your own figures and contact Capt Sam Wright as I listed previously and he'll provide you absolutely fantastic information and help.
- Sick accrual is also given by the company to returning pilots coming off LTMLA. As described, they look at how much sick you used the 12 months before you went on LTMLA. The less you used, the more you receive... and in your case X 7. If you used 72 hours of sick the 12 months before going on LTMLA, you will receive nothing. If you used no sick the 12 months preceding LTMLA, you will receive 72 x 7. I'd watch this like a hawk and ensure it gets in your account. Someone's sick usage does not matter when calculating the next year's accrual per the CBA, but for some reason does when calculating it for returning from LTMLA. Clarification requests to our Union Military Rep and Enforcement were never returned, but this method of calculating sick is not complaint with the CBA. While I'm not a lawyer, I did a LOT of research on USERRA and have read every law review article on Law Review Index it's great information. From Law Review 59 "Q: Do I continue accruing vacation days while I am away from my civilian job performing service in the uniformed services? A: Probably not, because vacation days do not qualify as “perquisites of seniority.” The pertinent USERRA provision is as follows: “A person who is re-employed under this chapter is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of 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.” [38 U.S.C. 4316(a).] This provision codifies the “escalator principle” first enunciated by the Supreme Court in its first case under the Veterans’ Reemployment Rights (VRR) law, which was replaced by USERRA in 1994. The Supreme Court held, “[The returning veteran] does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during [his military service].” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-85 (1946).
The escalator principle applies to perquisites of seniority. A two-part test determines whether a particular benefit qualifies as a perquisite of seniority: (a) The benefit must be intended to be a reward for length of service, not a form of short-term compensation; and (b) It must be reasonably certain that the veteran would have attained the benefit if he or she had remained continuously employed. A vacation day is deemed to be a form of short-term compensation, not a reward for length of service. Thus, the escalator principle does not entitle the returning veteran to the vacation days that he or she would have earned if continuously employed. See Foster v. Dravo Corp., 420 U.S. 92 (1975).
On the other hand, you can claim the accrual of vacation days under USERRA’s “furlough or leave of absence” clause, if and to the extent that employees on some form of non-military leave of absence continue accruing vacation days. [See Law Reviews 41 and 58.]"
RSA is similar to vacation days as not counting as perquisites of seniority, but at FedEx RSA accrual is unique in that our overage of RSA over 686 goes to your pension. That fact is what makes FedEx "pay" us RSA for the time we were gone--it's because it's pension related. We should never give up this overage clause in our contract because then we don't have Federal Law to stand on to get our DSA bumped up when we return. Now that we've established that FedEx must "pay" us RSA, there are two ways to calculate it...just like pay for pension purposes. Since all pilots don't have a firm amount they use each year, FedEx is allowed (per my investigation) to use the same type of look back as they do for pay. That's why there's a bit of luck involved here. If you didn't get sick and didn't use any RSA the 12 months prior, you'll get a big bump being gone 7 years. If you used a lot, you lose out...not very fair, but I couldn't find any way around it during my research.
- 401K Contribution Make-up. (First I heard of that and wish I would have known that)
Remember you have 3 times the amount of time you were gone (not to exceed 5 years) to make up 401(k) (not to exceed annual maximums if you contributed to TSP)...this goes for anyone coming back from MLA. So, don't pass up the "free" $500 each year if you still have this available and are reading this note! Contact Vanguard, as I said before, they got it right and are easy to work with.
- The contract signing bonus paid out during your absence was not returned to me after fighting it. Attempts to contact our Union Military Rep for backup to this fight were not returned. The company would not return it, but I hope you have different results. As far as my research shows, this should have been paid and I know it wasn't. From the previous Law Review I quoted: A two-part test determines whether a particular benefit qualifies as a perquisite of seniority: (a) The benefit must be intended to be a reward for length of service, not a form of short-term compensation; and (b) It must be reasonably certain that the veteran would have attained the benefit if he or she had remained continuously employed. I believe (b) is absolutely correct for anyone on MLA so we have to look to part (a) of the test. If you believe "The benefit must be intended to be a reward for length of service" then you should get it, but if it's a "form of short-term compensation" like vacation or RSA, then you shouldn't. I have never asked Capt Wright this question...any of you like to present him the facts and get back to us on this?
Good luck and welcome back!
03-31-2014, 11:11 AM
#22
Gets Weekends Off
Joined APC: Aug 2012
Posts: 711
Originally Posted by Lindy
Flaps 50, why do you think he will have 6-9 months if excessed?
Are you presuming he returns from Mil Leave, asking for the -11, assigned a class date, excess bid comes out, and he then bids the 757?
FDX can AND WILL train him out of seniority, pay protecting him. This was demonstrated when the 727s were parked....many FOs were trained out of seniority. The DC-10 deal of old no longer exists....only the very, very senior pilots received more than 4 months off (unless special circumstances existed). When I say senior, I mean the top 10% of the bid pack.
Are you presuming he returns from Mil Leave, asking for the -11, assigned a class date, excess bid comes out, and he then bids the 757?
FDX can AND WILL train him out of seniority, pay protecting him. This was demonstrated when the 727s were parked....many FOs were trained out of seniority. The DC-10 deal of old no longer exists....only the very, very senior pilots received more than 4 months off (unless special circumstances existed). When I say senior, I mean the top 10% of the bid pack.
If I left as an S/O or a narrowbody F/O and I knew I would get excessed off the MD-11, I would frankly tell FedEx that's where I want to come back to--the MD-11. Remember that because of the escalator principle you can come back to what you could have held...it's your choice, not FedEx's. (USERRA can also take you backwards on the escalator principle too, but for 7 years out of the system, that's not a problem to him.) Remember, your imputed pay for pension purposes will be based on a look back to where you could have held the position if you hadn't been gone and were continuously employed. So, if you would have been an MD-11 F/O on January 27th, 2009, once you pass IOE as an MD-11 First Officer on (let's say) June 10th, 2014, you instantly will have your imputed pay adjusted back to January 27th, 2009 at the widebody rate. (Remember your high 5 will also be based on this look back and imputed pay...you never know when you might be disabled, in a car wreck, etc) It would be hard to give up a "free" snap back to widebody F/O or narrow body Captain pay unless I knew my future 5 years would be problem free!
And, last, I'd like to dispel the notion once again that FedEx can train him in the plane FedEx would like to. This is not true. As long as SteveA could have held something and SteveA wouldn't have also lost it while on MLA, he can tell them what he wants to come back to and it will happen. Here are some examples maximizing pay, not maximizing QOL which SteveA may value more: 1) Let's say SteveA could have held 727 Captain while he was gone, then would have been excessed off of that and now can only hold MD-11 F/O. SteveA should tell them he wants to come back as an MD-11 F/O...the escalator principle took him up and took him back down. 2) SteveA could have held 757 Captain two years ago, but not on the last bid and not on this projected upcoming bid. Tell FedEx you want to come back as a 757 Captain. The escalator principle took you up...doesn't matter that an intervening bid wasn't available to you. You don't have to project when you would have taken 757 Captain...if you could have once while on MLA...that's all you need to show. This is where the FedEx email to you may not jibe with USERRA reality? 3) SteveA could have held MD-11 F/O 5 years ago, but wants to come back to the 757 F/O. Come back as an MD-11 F/O and hope you reach IOE before the upcoming bid closes and bid to relieve to 757 F/O...then enjoy your widebody imputed earnings while going to your DDH plane! More work on SteveA's part, but it's like an insurance policy over the next years in case of the worst.
Let's say SteveA tells FedEx that he wants to come back as an MD-11 F/O, but he would be the bottom guy on the MD-11 F/O list. FedEx MUST train him on the MD-11. They can NOT train him on a different piece of equipment and simply pay protect him. USERRA doesn't work that way even if it may have happened in the 727 shutdown. They must create a special class for him if needed. Doesn't matter if it's costly, doesn't matter if it's inconvenient, doesn't matter if it makes their training costs higher, doesn't matter if it creates an extra body in the MD-11 fleet they don't want. FedEx can't train him in something else if SteveA doesn't want to. The only want they can force him out of the MD-11 F/O is if the excess bid closes while he's in training and he would be excessed...then the escalator takes him down, FedEx could then pull him out of MD-11 training in contractual order to put him into the excess training...but remember that bids to relieve train first.
Short story, USERRA is a hammer. Use it responsibly and use it morally I would suggest, but remember all the times you have been told "that's the way the contract reads"...and simply avoid the argument and say "that's what Federal Law states". Following CBAs and Federal Laws are two way streets. With USERRA, you're not on your own and you don't have to ask the union to battle for you. The ESGR Ombudsman, Capt Wright and the ROA, and the guvment itself will fight for you...but you have to know the rules to hold feet to the fire.
Since a lot of these issues are complicated, if SteveA has questions about a game plan on returning to work and what can and can't happen, PM me with a number and I'll call you.
03-31-2014, 11:32 AM
#23
Line Holder
Joined APC: Apr 2007
Posts: 77
Raptor, great info and it seems you have done a ton of research.
As far as sick accrual, I will tell you I discussed the sick issue at length with a Rep from VETS at the Department of Labor. Her opinion on the subject was since the company does accrue sick for LTMLA pilots during their absence, they needed to do it per the CBA.
As far as sick accrual, I will tell you I discussed the sick issue at length with a Rep from VETS at the Department of Labor. Her opinion on the subject was since the company does accrue sick for LTMLA pilots during their absence, they needed to do it per the CBA.
03-31-2014, 11:48 AM
#24
Gets Weekends Off
Joined APC: Aug 2012
Posts: 711
Originally Posted by Osmosis
Raptor, great info and it seems you have done a ton of research.
As far as sick accrual, I will tell you I discussed the sick issue at length with a Rep from VETS at the Department of Labor. Her opinion on the subject was since the company does accrue sick for LTMLA pilots during their absence, they needed to do it per the CBA.
As far as sick accrual, I will tell you I discussed the sick issue at length with a Rep from VETS at the Department of Labor. Her opinion on the subject was since the company does accrue sick for LTMLA pilots during their absence, they needed to do it per the CBA.
.
Now to as whether or not someone on MLA in 2011 should get the signing bonus....
.
February 28, 2011
Captain John S. Gustafson
FedEx ALPA MEC
Negotiations Committee Chairman
1770 Kirby Pky., Ste. 300
Memphis, TN 38138
Dear Captain Gustafson:
The purpose of this letter is to confirm the details of the lump sum that is part
of the tentative agreement and is, of course, subject to ratification.
Eligibility
Pilots who were employed by the Company as pilots on January 28, 2011,
are eligible to receive the agreed upon lump sum payment.
1 The use of the
term, “pilots” in this letter is as defined in the CBA.
Amount of Lump Sum
Eligible pilots will receive a lump sum payment equal to 1% of their calendar
year 2010 pensionable wages, as a pilot, capped at $260,000. In other
words, the maximum lump sum will be $2,600.
Timing of Lump Sum Payment
The lump sum will be paid as soon as practicable following the date of ratification.
In no event shall the lump sum payment be made earlier than the effective date
of this agreement or later than 30 days after the date of ratification.
Retirement Plan Treatment of Lump Sum Payment
The lump sum will paid in cash and will be treated as pensionable wages
for the year in which it is paid. The lump sum also will be eligible for B-Plan
contributions, (subject, of course, to applicable contractual and Internal
Revenue Code limitations).
Sincerely,
John Maxwell
Vice President, Labor Relations
1
Not all eligible pilots will receive a lump sum payment, as it is possible for an employee to be in an “eligible”
status, yet not have any “eligible” calendar 2010 earnings on which to base the 1%. For instance,
pilots hired in 2011 would fall into this category as would any pilots who were on leave of absence for
the entire 2010 year and therefore had no pensionable earnings in 2010.That's the LOA in the 2011 contract. Reading this, especially subnote 1, would make me think FedEx has no leg to stand on. Someone on MLA must be treated as if they were continuously employed. Since the only requirement was employed as a pilot on January 28, 2011 with pensionable earnings in 2010, it seems a lock to me that MLA pilots should get the bonus as USERRA protects the notion that they were employed while on MLA...and MLA pilots do have pensionable earnings...they're just imputed earnings to base the pension payments on. This doesn't affect me, so someone who it does affect should really take this up to VETS or Capt Wright for a reading. I bet we'd easily win on this issue.
03-31-2014, 02:56 PM
#25
Gets Weekends Off
Joined APC: Dec 2005
Position: Leftof longitudinal
Posts: 1,899
Raptor,
Agree with 99% of your posts on USERRA.
Don't work at FedEx, but read your USERRA thoughts with interests.
About things I used to think were clear cut absolutes under USERRA:
Was chagrined to find out when talking to DOL VETS (and Sam Wright) that not always clear cut.
On escalator clause issues. If contested (complaint filed) An employer can run the bids retro to show exactly where the 'escalator' clause would place an employee. Pilot contracts very easy to run, benefit is you can accurately peg your calculations for pension restoration, and other benefits under your CBA.
At another airline that has PBS, USERRA VETS not exactly willing to (IMO) give the pilot employees the max USERRA benefit. They do reference the CBA in their investigation.
Contracts (CBA's) do affect USERRA DOL VETS/DOJ enforcement. USERRA is floor, but if a CBA treats employees in various (different) levels (medical, jury duty, personal leave, etc) it influences their opinions. "All were treated the same" is used as company defense. Not lost on DOL VETS.
Latest one to watch is this pension suit:Law Review 14016
Hope you are on your Military Committee.
Agree with 99% of your posts on USERRA.
Don't work at FedEx, but read your USERRA thoughts with interests.
About things I used to think were clear cut absolutes under USERRA:
Was chagrined to find out when talking to DOL VETS (and Sam Wright) that not always clear cut.
On escalator clause issues. If contested (complaint filed) An employer can run the bids retro to show exactly where the 'escalator' clause would place an employee. Pilot contracts very easy to run, benefit is you can accurately peg your calculations for pension restoration, and other benefits under your CBA.
At another airline that has PBS, USERRA VETS not exactly willing to (IMO) give the pilot employees the max USERRA benefit. They do reference the CBA in their investigation.
Contracts (CBA's) do affect USERRA DOL VETS/DOJ enforcement. USERRA is floor, but if a CBA treats employees in various (different) levels (medical, jury duty, personal leave, etc) it influences their opinions. "All were treated the same" is used as company defense. Not lost on DOL VETS.
Latest one to watch is this pension suit:Law Review 14016
Hope you are on your Military Committee.
03-31-2014, 03:59 PM
#26
Gets Weekends Off
Joined APC: Aug 2012
Posts: 711
Originally Posted by SaltyDog
Contracts (CBA's) do affect USERRA DOL VETS/DOJ enforcement. USERRA is floor, but if a CBA treats employees in various (different) levels (medical, jury duty, personal leave, etc) it influences their opinions. "All were treated the same" is used as company defense. Not lost on DOL VETS.
Latest one to watch is this pension suit:Law Review 14016
Hope you are on your Military Committee.
Latest one to watch is this pension suit:Law Review 14016
Hope you are on your Military Committee.
USERRA’s “furlough or leave of absence” clause reads as follows: “Subject to paragraphs (2) through (6), a person who is absent from a position of employment by reason of service in the uniformed services shall be—(A) deemed to be on furlough or leave of absence while performing such service; and (B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.” [38 U.S.C. 4316(b)(1).] Essentially identical language appeared in the Veterans’ Reemployment Rights (VRR) law, which USERRA replaced in 1994.
The leading VRR case on the “furlough or leave of absence” clause is Waltermyer v. Aluminum Company of America, 804 F.2d 821 (3rd Cir. 1986). In that case, the comparison was to jury leave, a form of paid leave. USERRA’s legislative history clearly indicates that Congress intended to adopt and reaffirm Waltermyer: “The Committee [House Committee on Veterans’ Affairs] intends to affirm the decision in Waltermyer … that, to the extent the employer policy or practice varies among various types of non-military leaves of absence, the most favorable treatment accorded any particular leave would also be accorded the military leave, regardless of whether the non-military leave is paid or unpaid.” House Report No. 103-65, 1994 U.S. Code Congressional and Administrative News 2449, 2466-67 [emphasis supplied].
Short story on this is that you're absolutely right. USERRA is a floor and if your CBA contains provisions that provide more favorable treatment than USERRA, then the most favorable benefits apply. There are two major kinds of benefits that USERRA protects. Those that are 1) "perquisites of seniority" (explained in a previous post) and USERRA’s 2) “furlough or leave of absence” clause. This leave of absence clause is what the American Airline pilots won their suit about regarding vacation accrual.
Normally, vacation accrual isn't a perquisite of seniority, like sick leave accrual isn't either. But, in their case, AA employees on other forms of leaves of absence (sick leave, disability, jury duty, personal leave, etc) did accrue vacation hours. Thus, USERRA says that since Military Leave is to be treated as a form of leave of absence, you can't receive any less favorable treatment than ANY other form of leave of absence at the company. That's why AA pilots get a form of vacation hour accrual when they go on MLA--because their CBA treats some forms of leaves of absence more favorably and MLA can't be any less favorable.
At FedEx, as far as I have been able to tell, all of our leaves of absence besides military leave provide essentially no benefits. Thus, we don't have the happy occurrence like AA pilots (and perhaps some other airline contracts) of having a more favorable CBA than USERRA provides. Essentially our CBA parrots USERRA in some respects and provides some implementation of it.
03-31-2014, 05:18 PM
#28
Line Holder
Joined APC: Apr 2007
Posts: 77
Originally Posted by Raptor
Take a look at LAW REVIEW 58 which I excerpt below:
USERRA’s “furlough or leave of absence” clause reads as follows: “Subject to paragraphs (2) through (6), a person who is absent from a position of employment by reason of service in the uniformed services shall be—(A) deemed to be on furlough or leave of absence while performing such service; and (B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.” [38 U.S.C. 4316(b)(1).] Essentially identical language appeared in the Veterans’ Reemployment Rights (VRR) law, which USERRA replaced in 1994.
The leading VRR case on the “furlough or leave of absence” clause is Waltermyer v. Aluminum Company of America, 804 F.2d 821 (3rd Cir. 1986). In that case, the comparison was to jury leave, a form of paid leave. USERRA’s legislative history clearly indicates that Congress intended to adopt and reaffirm Waltermyer: “The Committee [House Committee on Veterans’ Affairs] intends to affirm the decision in Waltermyer … that, to the extent the employer policy or practice varies among various types of non-military leaves of absence, the most favorable treatment accorded any particular leave would also be accorded the military leave, regardless of whether the non-military leave is paid or unpaid.” House Report No. 103-65, 1994 U.S. Code Congressional and Administrative News 2449, 2466-67 [emphasis supplied].
Short story on this is that you're absolutely right. USERRA is a floor and if your CBA contains provisions that provide more favorable treatment than USERRA, then the most favorable benefits apply. There are two major kinds of benefits that USERRA protects. Those that are 1) "perquisites of seniority" (explained in a previous post) and USERRA’s 2) “furlough or leave of absence” clause. This leave of absence clause is what the American Airline pilots won their suit about regarding vacation accrual.
Normally, vacation accrual isn't a perquisite of seniority, like sick leave accrual isn't either. But, in their case, AA employees on other forms of leaves of absence (sick leave, disability, jury duty, personal leave, etc) did accrue vacation hours. Thus, USERRA says that since Military Leave is to be treated as a form of leave of absence, you can't receive any less favorable treatment than ANY other form of leave of absence at the company. That's why AA pilots get a form of vacation hour accrual when they go on MLA--because their CBA treats some forms of leaves of absence more favorably and MLA can't be any less favorable.
At FedEx, as far as I have been able to tell, all of our leaves of absence besides military leave provide essentially no benefits. Thus, we don't have the happy occurrence like AA pilots (and perhaps some other airline contracts) of having a more favorable CBA than USERRA provides. Essentially our CBA parrots USERRA in some respects and provides some implementation of it.
USERRA’s “furlough or leave of absence” clause reads as follows: “Subject to paragraphs (2) through (6), a person who is absent from a position of employment by reason of service in the uniformed services shall be—(A) deemed to be on furlough or leave of absence while performing such service; and (B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.” [38 U.S.C. 4316(b)(1).] Essentially identical language appeared in the Veterans’ Reemployment Rights (VRR) law, which USERRA replaced in 1994.
The leading VRR case on the “furlough or leave of absence” clause is Waltermyer v. Aluminum Company of America, 804 F.2d 821 (3rd Cir. 1986). In that case, the comparison was to jury leave, a form of paid leave. USERRA’s legislative history clearly indicates that Congress intended to adopt and reaffirm Waltermyer: “The Committee [House Committee on Veterans’ Affairs] intends to affirm the decision in Waltermyer … that, to the extent the employer policy or practice varies among various types of non-military leaves of absence, the most favorable treatment accorded any particular leave would also be accorded the military leave, regardless of whether the non-military leave is paid or unpaid.” House Report No. 103-65, 1994 U.S. Code Congressional and Administrative News 2449, 2466-67 [emphasis supplied].
Short story on this is that you're absolutely right. USERRA is a floor and if your CBA contains provisions that provide more favorable treatment than USERRA, then the most favorable benefits apply. There are two major kinds of benefits that USERRA protects. Those that are 1) "perquisites of seniority" (explained in a previous post) and USERRA’s 2) “furlough or leave of absence” clause. This leave of absence clause is what the American Airline pilots won their suit about regarding vacation accrual.
Normally, vacation accrual isn't a perquisite of seniority, like sick leave accrual isn't either. But, in their case, AA employees on other forms of leaves of absence (sick leave, disability, jury duty, personal leave, etc) did accrue vacation hours. Thus, USERRA says that since Military Leave is to be treated as a form of leave of absence, you can't receive any less favorable treatment than ANY other form of leave of absence at the company. That's why AA pilots get a form of vacation hour accrual when they go on MLA--because their CBA treats some forms of leaves of absence more favorably and MLA can't be any less favorable.
At FedEx, as far as I have been able to tell, all of our leaves of absence besides military leave provide essentially no benefits. Thus, we don't have the happy occurrence like AA pilots (and perhaps some other airline contracts) of having a more favorable CBA than USERRA provides. Essentially our CBA parrots USERRA in some respects and provides some implementation of it.
If a pilot does not complete 10 months in an active pay status during a calendar year due to retirement, furlough, disability, or unpaid leave(s) of absence (Section 13), other than leave due to on-the-job injury, he shall not be entitled to the full accrual as per Section 7.B.1. (above). That pilot's vacation accrual shall be 1/10th of the full accrual for each calendar month the pilot is in an active pay status. For purposes of this paragraph, a month shall be counted if the pilot is not retired, or on furlough, disability or unpaid leave of absence for more than 15 days during that month.
03-31-2014, 05:26 PM
#29
Gets Weekends Off
Joined APC: Aug 2012
Posts: 711
Originally Posted by Osmosis
If you reference 7.B.2. (below) there is a type of LOA that accrues vacation. If in fact ANY LOA counts, then shouldn't vacation be accrued?
If a pilot does not complete 10 months in an active pay status during a calendar year due to retirement, furlough, disability, or unpaid leave(s) of absence (Section 13), other than leave due to on-the-job injury, he shall not be entitled to the full accrual as per Section 7.B.1. (above). That pilot's vacation accrual shall be 1/10th of the full accrual for each calendar month the pilot is in an active pay status. For purposes of this paragraph, a month shall be counted if the pilot is not retired, or on furlough, disability or unpaid leave of absence for more than 15 days during that month.
If a pilot does not complete 10 months in an active pay status during a calendar year due to retirement, furlough, disability, or unpaid leave(s) of absence (Section 13), other than leave due to on-the-job injury, he shall not be entitled to the full accrual as per Section 7.B.1. (above). That pilot's vacation accrual shall be 1/10th of the full accrual for each calendar month the pilot is in an active pay status. For purposes of this paragraph, a month shall be counted if the pilot is not retired, or on furlough, disability or unpaid leave of absence for more than 15 days during that month.
03-31-2014, 05:27 PM
#30
Gets Weekends Off
Joined APC: Aug 2012
Posts: 711
I have also heard from some folks because of this thread that they didn't get their sick leave made up. But, some pilots have had sick leave made up. Can people post their experiences in this regard? And, if you were made whole for sick leave, how did that happen and what department processed it?
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