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Old 03-12-2021, 07:36 PM   #1  
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Default Class action lawsuits...



This follows a recent 7th circuit court decision:

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Employers—particularly those in Illinois, Indiana and Wisconsin—should revisit their military leave policies in light of the Seventh Circuit’s holding in White v. United Airlines Inc., No. 19-2546 (Feb. 3, 2021), that failure to provide paid military leave, while simultaneously offering paid time off for other absences such as for jury duty or sick leave, might violate the Uniformed Services Employee and Reemployment Rights Act (USERRA). Judge Diane Wood wrote the opinion, which addressed this issue of first impression; she was joined by Judges Michael Brennan and Michael Scudder. On February 17, 2021, United Airlines filed a petition for rehearing en banc on the ground that the panel’s ruling was a “sudden and dramatic change in USERRA’s interpretation” since “virtually nobody thought the statute imposed a paid military leave requirement in any circumstances.”

USERRA protects servicemembers by mandating that employers provide leave to accommodate military leaves of absences and re-employ individuals who return to work after military service. In White, an airline pilot brought a class action lawsuit on behalf of himself and other military reservists who took periodic unpaid leaves of absence to attend military training; the plaintiff alleged that his leave should have been paid, like other short-term absences that were paid, including jury duty and sick leave. The plaintiffs argued that their employers’ failure to provide comparable paid time off for military leave violated USERRA’s guarantee that absent servicemembers are entitled to the same “rights and benefits” provided to other employees.

The district court dismissed the plaintiffs’ USERRA claims, reasoning that the statute does not guarantee paid leave. On appeal, the Seventh Circuit reversed, emphasizing that USERRA defines “rights and benefits” broadly, to include: “any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) . . . [and] rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.” 38 U.S.C. § 4303(2). Simply put, the court determined that this broad language encompasses paid leave.

The Seventh Circuit considered and rejected several arguments put forth by the employers that “rights and benefits” do not include paid leave, including that the phrase “for work performed” in parentheses demonstrates Congress’s intent to exclude paid leave. The court also rejected the policy argument that it was imposing a “costly sea-change” on employers by mandating paid military leave, observing that fewer than one percent of employees in the United States are reservists.

It is worth emphasizing that USERRA does not itself mandate paid leave, but rather requires that employees on military leave receive comparable treatment to those on non-military leaves of absence. The Seventh Circuit remanded to the district court to decide whether other types of paid leave available to the pilots were “comparable” to military leave and pointed to the Department of Labor’s guidance on this issue, which entails considering factors such as the duration and frequency of leave.

Again, in light of this ruling, employers should review their military leave policies and evaluate benefits provided to employees during comparable leaves of absence. Stay tuned for further legal developments in this area.
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Old 03-15-2021, 08:44 PM   #2  
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There are some seriously dumb people out there. Why would someone even think that mil leave (where you are getting paid by the gov) should also be paid by your company from which you are not working for those days. Sick leave is a paid benefit as a result of being employed and jury duty is unpaid by the gov so the company thought it was important to fulfill a civic duty so they are paying people.

Last edited by gollum; 03-15-2021 at 08:55 PM.
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Old 03-15-2021, 09:01 PM   #3  
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There are some seriously dumb people out there. Why would someone even think that mil leave (where you are getting paid by the gov) should also be paid by your company from which you are not working for those days. Sick leave is a paid benefit as a result of being employed and jury duty is unpaid by the gov so the company thought it was important to fulfill a civic duty so they are paying people.
Evidently, those dumb people include lawyers who are about to make a killing off of comparing United paying folks out on jury duty but not out on mil leave. Obviously, the case still has to be litigated, but that is the direction this is going. Unfortunately, this will only result in employers narrowly tailoring paid leaves in order to avoid paying folks out on mil. Congress may have to get involved to be more explicit what the intent is with mil leave. I’m in favor of protecting folks on mil leave, but the more burdensome you make it, the more companies will find ways to avoid hiring reserve/ guard folks.
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Old 03-15-2021, 09:26 PM   #4  
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Originally Posted by gollum View Post
There are some seriously dumb people out there. Why would someone even think that mil leave (where you are getting paid by the gov) should also be paid by your company from which you are not working for those days. Sick leave is a paid benefit as a result of being employed and jury duty is unpaid by the gov so the company thought it was important to fulfill a civic duty so they are paying people.
The “dumb people” are those in Congress who pass ambiguous laws. A single congressional aide doing a day or two’s research ought to be able to craft a Bill spelling out the requirements specifically without flowery language and weasel words that can be twisted every which way. And actually, jury duty IS paid for by the government, at least in my state. Not much, I’ll grant you, but about $50 a day, a number that probably hasn’t changed in the last 70 years.
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Old 03-15-2021, 10:28 PM   #5  
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"Thank you for your Servi.......wait? you are suing the company for what? Didn't you take Mil leave every holiday last year?"
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Old 03-16-2021, 07:16 AM   #6  
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Originally Posted by gollum View Post
There are some seriously dumb people out there. Why would someone even think that mil leave (where you are getting paid by the gov) should also be paid by your company from which you are not working for those days. Sick leave is a paid benefit as a result of being employed and jury duty is unpaid by the gov so the company thought it was important to fulfill a civic duty so they are paying people.
I agree that the sick leave application is an unintended consequence of the language of the law. But trying to read too much "intent" into the letter of the law is a slippery slope that's leads to judicial activism... they probably need to just amend the law in this case.

The intent was that mil would broadly receive the same general benefits as other employee categories. In the case of jury duty that's a civic obligation just like mil duty and should be comparable. Real-world example, the company offers pay (and bennies) for pregnancy leave because it's PC to do so, but doesn't extend the same to the baby-killers.

I would be OK with amending the law such that it's "make whole", to avoid double-dipping windfalls. Ie, the company just makes the difference between mil base pay and your "normal" civilian pay, in those circumstances where they pay other types of leave.

Fundamentally you also have to understand the .gov perspective: If employers in general can make reservists feel explicitly or implicitly marginalized or unwelcome, members will get sick of it and quit the mil. Most of us can actually make equal or more money pure civilian if we just refocus the time and energy we devote to the reserves to hustle on civvy-street.

The .gov likes having the reserve and especially the guard for civil emergencies... they'd rather create a burden for employers than a manning/capability burden for themselves at the next hurricane, flood, pandemic, riot, etc.
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Old 03-17-2021, 05:17 AM   #7  
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What this has done IMHPO is creating a motivation for airlines to not hire military pilots to maximum extent possible. The next lawsuits will be from military pilots unable to get jobs at airlines. Discrimination suits.
USERRA already states can use vacation to cover service (pay loss)
Get hired, take a 4 year AGR tour? No airline wants to pay the difference when you return for zero productivity.
Contract negotiations: Airlines will target all jury duty and modify sick payouts to shield themselves from having to pay military for absences. The rest of the non military pilots will now blame military pilots. Brilliant work, self inflicted short term gain. Long term pain everyone else. Bad enough military and non military relations. This will highlight for non military pilot perceptions that military pilots are selfish and "take advantage" of their military positions to get out of work they don't like. Brilliant.
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Old 03-17-2021, 07:00 AM   #8  
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What this has done IMHPO is creating a motivation for airlines to not hire military pilots to maximum extent possible. The next lawsuits will be from military pilots unable to get jobs at airlines. Discrimination suits.
USERRA already states can use vacation to cover service (pay loss)
Get hired, take a 4 year AGR tour? No airline wants to pay the difference when you return for zero productivity.
Contract negotiations: Airlines will target all jury duty and modify sick payouts to shield themselves from having to pay military for absences. The rest of the non military pilots will now blame military pilots. Brilliant work, self inflicted short term gain. Long term pain everyone else. Bad enough military and non military relations. This will highlight for non military pilot perceptions that military pilots are selfish and "take advantage" of their military positions to get out of work they don't like. Brilliant.
What he said much better than I did
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Old 03-17-2021, 08:08 AM   #9  
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Originally Posted by SaltyDog View Post
What this has done IMHPO is creating a motivation for airlines to not hire military pilots to maximum extent possible. The next lawsuits will be from military pilots unable to get jobs at airlines. Discrimination suits.
USERRA already states can use vacation to cover service (pay loss)
Get hired, take a 4 year AGR tour? No airline wants to pay the difference when you return for zero productivity.
Contract negotiations: Airlines will target all jury duty and modify sick payouts to shield themselves from having to pay military for absences. The rest of the non military pilots will now blame military pilots. Brilliant work, self inflicted short term gain. Long term pain everyone else. Bad enough military and non military relations. This will highlight for non military pilot perceptions that military pilots are selfish and "take advantage" of their military positions to get out of work they don't like. Brilliant.
It should not be that difficult for Congress to craft a new law or mend the old one to be fair to everyone. But out of 600 thousand reservists (airline workers and otherwise) there will be some that will abuse the easily abused existing law and their will be lawyers happy to facilitate that abuse. Congress needs to do their friggin’ job.
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Old 03-20-2021, 05:12 PM   #10  
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USERRA has many faults, but this is not an area of faults. It actually makes an unequal among equal service members.
Just in the airlines, pilot A makes far more than pilot B for same level of airline work depending on contract.
Pilot A is at ABC airlines. Pilot B is at XYZ airlines. Both are 12 year 0-4s. Both make identical pay at the military, but daily unequal pay at the airlines, but each accepted employment at their airline, with this "paid" for zero productivity at the airlines, they are now unequally paid for military same military service. Employers, large and small, need to cover this military "penalty" (Yes, airlines already complain to politicians the cost burden of military employees in DC)
The disparity does not end their either.
USERRA applies to all employees at union, non union, management, supervisory, enlisted and officer alike. Virtually every military service member employed takes service seriously enough in an all volunteer force to perform that service knowing that we do not military service to get rich. To the vast majority of Americans that have and never will serve, this highlights to these fellow employees who WILL lose benefits that the "military" employees caused this loss over time. This actually harms the all volunteer force which is actually what USERRA is designed to accomplish.
Am an ardent USERRA supporter and of fellow military service members. Many years of engagement at government, DOL, employer and union level.
This is not a long term win, in the end, it will cause employers to craft a manner to avoid hiring as many military service members as legally feasible. That is reality.
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