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USERRA/Airline Training

Old 03-10-2018, 06:32 AM
  #21  
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Originally Posted by Flying Enoch View Post
…..Also, although USERAA protects service men and women, almost all 121 carriers have the probationary clause that says "one can be terminated for ANY reason, without cause, during their first 365 days of employment".
USERRA protects you if the reason can be demonstrated as related to military service, so cannot terminate you for “ANY’ reason, an employer would have to prove cause, so its stated “without cause” meaning you can only be terminated for cause , such as repeated missing work, etc,
Essentially, if they could terminate another employee (pilot) for same cause, a military member could be rightfully terminated, IF on probation, the employer must follow USERRA, not the collective bargaining agreement (CBA aka “contract”). Federal law supersedes CBA. Must be valid reason, with cause, not “ANY”.

If regionals were headhunting Military service members for reasons of military service then I would hope they filed a complaint with DOL VETS. https://osc.gov/Pages/USERRA.aspx
Additionally, If any employer terminates a military service member, at any time, after military service, and an employee suspects that it was due to military service, then have significant recourse.

If have a union, you may have resources on the process even if union is limited in your representation. If union does not assist, or in a non union position, call ESGR or file the complaint with DOL VETS to cause an employer to consider the DOL VETS and possible DOJ Office of Special Counsel action.

For all USERRA issues and enforcement:
Source: The enforcement (litigation) arm of USERRA at the Dept of Justice-Office of Special Counsel

“The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).
USERRA Overview: https://osc.gov/Pages/USERRA.aspx
If click here: https://osc.gov/Pages/USERRA-EmployeeRights.aspx

See the following;
“Once a service member is reemployed, USERRA provides guidelines on what position she is entitled to. Generally, the employee must be given the position she would have held had she remained continuously employed. (This is often referred to as the “escalator principle.”) This may result in a promotion or other advancement. If an employer thinks that a service member is not qualified to perform this job, the employer must provide training or other experience to boost the employee’s skills to the required level. If the employee cannot be trained through reasonable efforts, she is still entitled to her former position.
In some cases, where the employee was absent for more than 90 days due to military service, the employer may choose to reassign the employee, but it must be to a job of similar seniority, status, and pay as the employee’s former position.
Returning service members are also entitled to receive benefits and seniority as though they had remained continuously employed. For instance, if an employee works at a company for two years and then completes one year of military service before returning, her employer must treat her as though she had worked continuously for three years when calculating the following benefits:
• Paid leave (although no leave is accrued while the employee is absent)
• Salary
• Credit toward completing probationary periods
• Eligibility for promotions
• Anything else that is tied to the employee’s longevity at the workplace
In addition, returning service members have added job security. If they were absent for 31-180 days, they are protected against being terminated without cause for six months. If they were absent for more than 180 days, they are protected against being terminated without cause for one year. However, all returning service members can be terminated for cause at any time. USERRA does not protect service members if, for instance, they improperly miss work for reasons not related to their military service.”


-------------------------------------------------------------------------------------------------------------------------------
PROBATION ISSUE:
DOJ OSC website even supports “credit toward completing probationary periods”
Many airline contracts stipulate that an employee must be on property for 365 days. Once again, airline contracts cannot supersede USERRA Statute. (State law also cannot supersede USERRA Statute.)
USERRA states you cannot be harmed for military service for longevity regarding benefits. Probation is the gray zone, even with DOJ OSC statement, most airlines impose the 365 days probation, arguably, not really a significant event as pay, longevity, year two pay should all occur as if never left the property. In other words, extending probation does not have a significant impact on a military service employee at an airline as a pilot.
If company decided to terminate the pilot on probation (or after probation) , as pointed out above, they have a special USERRA bar to pass muster. If with cause as mentioned, missing work etc . Would not matter if on/off probation. They have cause. Otherwise, management must prove not related to military (extra training allowed / protected by USERRA)
The extended probation makes sense for some fields, you’re a new apprentice electrician/plumber journeyman. Completing probation after military service makes sense because integral to the continuing path to qualification needed to ensure the journeyman can complete the tasks of increasing skill sets required for the job to become a master electrician/plumber that an employer requires after abc length of time.

Part 121 pilots in particular are an interesting subset. You were hired with FAA credentials for the job. You are not an apprentice, Your skill sets were set and checked by the federal government or designee and your employer to ensure you meet the basic standard. If hired, then trained and released to the line, you have arguably met the standard for the job. It is a pass/fail release to the line as a pilot and frequently you have a new type rating. You are qualified to fly the aircraft.
Originally Posted by Flying Enoch View Post
When a leave is requested, regardless of which type of leave, employers weigh out if one would need remedial training and the time/cost associated with it. One may need to be completely retrain (a huge expense), or simply just need 3 takeoffs/landing upon returning. Again, USERRA will protect you against the leave regardless, but don't be surprised that a termination may be in line for a plethora of other reasons, as you are on still on probationary status for a year.
The best practice is communication in these cases. Find out the ramifications prior to treading this water. This is coming from a former hiring panel guy at a 121 regional carrier. I've seen it happen before.
Interesting implied threat against military service “but don't be surprised that a termination may be in line for a plethora of other reasons, as you are on still on probationary status for a year”. If management takes this line, say that, act that, that is violating the law. That is a threat to prevent military service.

Finding out ramifications is fine, but…..Simply stated, protect your USERRA rights, it is a backbone of our nations all voluntary military. An employer may violate your rights out of ignorance or believe they are in their right to terminate or pursue any number of policies in violation.

You will likely be your first best advocate by reading the statute, talk to ESGR, talk to knowledgeable people away from APC (myself included )
Read Capt Sam Wright USNR (ret) material at the Reserve Officer Association Law Review website. The ROA and Captain Wright do all military service members a huge service by their advocacy. Capt Wright was one of the writers of the Statute and a huge source of knowledge and expertise. Subject Index - ROA
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Old 03-15-2018, 03:01 AM
  #22  
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Make an appointment to speak with the Staff Judge Advocate at a nearby installation. He/she will give you solid advice, not internet conjecture. Cases tried under USERRA are referred to lawyers at the Department of Labor. They may also provide you with some insights.

I got great advice from the JAG before I went on Mil Leave.
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Old 03-15-2018, 07:03 AM
  #23  
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Originally Posted by Spike from flyi View Post
Make an appointment to speak with the Staff Judge Advocate at a nearby installation. He/she will give you solid advice, not internet conjecture. Cases tried under USERRA are referred to lawyers at the Department of Labor. They may also provide you with some insights.

I got great advice from the JAG before I went on Mil Leave.
Definitely worth a shot, although AD JAGs vary in their level of experience. Several folks posting internet info here are current/former unit leaders who have handled these kinds of issues in an official capacity.
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Old 03-21-2018, 01:52 AM
  #24  
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Originally Posted by rickair7777 View Post
Definitely worth a shot, although AD JAGs vary in their level of experience. Several folks posting internet info here are current/former unit leaders who have handled these kinds of issues in an official capacity.
Don't ask a lawyer, get some dubious advice from random internet slugs!
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Old 03-21-2018, 09:35 AM
  #25  
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Originally Posted by Spike from flyi View Post
Don't ask a lawyer, get some dubious advice from random internet slugs!
Don't ask the regular active duty, they typically don't know or care. They also have trouble understanding the PRACTICAL application of USERRA, because they don't understand how civilian employment even works.

Ask a reservist, lawyer or unit leadership. Both have been down this road many times.
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Old 03-22-2018, 04:48 AM
  #26  
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Rick,

Your knowledge of typical JAG expertise is truly inspiring. The fellow I spoke with before I took military leave was a retired (active duty) O6 who was working as a Department of the Army civilian at the SJA office. He was extraordinarily familiar with USERRA, and gave me the ammunition to slam the company when they tried to push back. The company wanted me to sign a document with six stipulations on it before going on leave.

I brought it to him, and he said, "You are not obligated to sign this in any way; however, this document is innocuous. Let's add a seventh stipulation." He put the document in his typewriter, and added a comment siting USERRA and the applicable US Code, chapter and verse.

BTW, I also sought advice from ALPA, they were totally clueless, and told me that I had no protections, since my activation was voluntary (WRONG!).
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Old 03-22-2018, 08:41 AM
  #27  
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Originally Posted by Spike from flyi View Post
Rick,

Your knowledge of typical JAG expertise is truly inspiring. The fellow I spoke with before I took military leave was a retired (active duty) O6 who was working as a Department of the Army civilian at the SJA office. He was extraordinarily familiar with USERRA, and gave me the ammunition to slam the company when they tried to push back. The company wanted me to sign a document with six stipulations on it before going on leave.

I brought it to him, and he said, "You are not obligated to sign this in any way; however, this document is innocuous. Let's add a seventh stipulation." He put the document in his typewriter, and added a comment siting USERRA and the applicable US Code, chapter and verse.

BTW, I also sought advice from ALPA, they were totally clueless, and told me that I had no protections, since my activation was voluntary (WRONG!).
YMMV. But a retired O6 is not what's normally available to walk-ins. I've seen this play out numerous times, and am sticking to my guns.
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Old 03-24-2018, 07:15 AM
  #28  
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Originally Posted by rickair7777 View Post
YMMV. But a retired O6 is not what's normally available to walk-ins. I've seen this play out numerous times, and am sticking to my guns.
I made an appointment.
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Old 03-24-2018, 01:21 PM
  #29  
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Spike,
Have seen a lot of bad advice/misunderstanding regarding USERRA on the internet and in these forums.
Have talked to several JAGS that frankly were not that familiar with USERRA. Most pilots don't really understand the depths of USERRA. Management teams know how to push the limits legally. DOL VETS assumes you know your rights. In your case, it worked, you found a knowledgeable JAG. Doesn't always pan out that way. Reason I give sources for pilots to reference and become knowledgeable if they care.

USERRA knowledge is vastly non standard throughout the spectrum.
Its a crap shoot. Even DOD does a poor job across the board in helping folks truly understand specifics.
On the whole, only a few posters on these forums have struck me as USERRA fluent, FWIW, rickair7777 is one of them. Knowing you, you have more savvy than most on USERRA as well.
cheers
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Old 03-24-2018, 11:30 PM
  #30  
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If I am able to go to a reserve unit I would need to take about 9 months mil leave. I hope to be fortunate enough to get hired by a major and start working on terminal and delay going to Reserve training for a few months. How long would it take from indoc to finish OE/Consolidation? Would probation take a pause or is it just 1 year with the company? Would year 1 pay pause or would time just continue to tick from the first day of indoc?
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