MIAMI – A plaintiff’s attorney walks into court and says, “My client, a pilot, is owed pay for the time he was away from his airline employer for military leave.”
“Surely you can’t be serious,” replies the airline.
“I am serious and don’t call me Shirley,” retorts the plaintiff’s attorney.
Fans of the 1980 cult classic comedy Airplane quote the original version of that joke ad nauseam, but airlines in the United States haven’t been laughing over the last couple of years. One after the other, commercial airlines have been slapped with class-action lawsuits alleging that their pilots are owed pay for military-related leaves, and the potential liability is . . . well, serious.
The Uniformed Services Employment and Reemployment Rights Act, or USERRA, is not a new law. It’s been around in its current form since 1994, and its predecessor statutes go back to the early 1940s. USERRA is a challenging, oft-overlooked piece of legislation that provides employees active in the military with loads of protections and entitlements, as I’ve written about recently.
The law’s obligations can impact almost all aspects of a servicemember’s employment relationship with his or her employer, including pension and retirement benefits, seniority, and pay administration.
Until recently, most employers familiar with USERRA’s intricacies were confident that the statute does not require paid leave for military service. The Act, itself, is explicit in its pronouncement that servicemembers are entitled to up to five years of cumulative unpaid leave. The spate of class-action lawsuits targeting commercial airlines – whose pilot workforces are made up of high percentages of service members – has tossed that basic premise up in the air.
The plaintiffs’ attorneys have latched onto a sort of backdoor argument to make their cases: even though USERRA’s explicit entitlement is for unpaid leave, there is a provision that requires that employees on leave for military service receive the same (or better) “rights and benefits” as employees absent for “comparable” types of leave.
Many employers provide a host of paid leave benefits, including sick leave, bereavement leave, vacation, and jury duty leave. According to the plaintiffs’ attorneys, those other types of paid leaves are sufficiently comparable to leave for military service to trigger an obligation to treat them the same.
The airline defendants, hoping to score quick wins, sought to dismiss the lawsuits at their earliest stages by arguing that the “rights and benefits” to which USERRA refers do not include paid leave. This technical, statutory argument was rejected by the majority of district courts hearing these lawsuits, with the exception of the Northern District of Illinois (in a case involving United Airlines [UA]) and the Eastern District of Pennsylvania (in a case involving FedEx [FX]).
The UA case and, most recently, the FX case, were both reinstated, however, when the Seventh and Third Circuit Courts of Appeals, respectively, overturned the district courts’ early dismissals.
With the airlines’ motions to dismiss on statutory arguments now universally rejected, the lawsuits will progress to their summary judgment phases, where the parties will argue over the central question remaining at issue: whether military leave is sufficiently “comparable” to the other types of paid leaves which plaintiffs have cited, including sick leave, jury leave, vacation, and bereavement leave.
That inquiry was not appropriate in the prior proceedings because it involves questions of fact, but it poses the greatest challenge to the plaintiffs’ attorneys and their theory of liability. The airlines will seek to prove that absences for military service, particularly in the airline industry, are different in their nature, duration, and frequency than the alleged comparable categories of leave.
That argument could very well be successful, especially given that it is not unusual for commercial pilots active in the Guard or Reserves to be absent from their civilian jobs for more than 100 days per year in short-term intermittent leaves, or sometimes for years at a time in a continuous long-term block.
Moreover, military members already receive pay and pension benefits from the government for their service, which further distinguishes military leave from other types of paid leaves offered by employers (even including jury duty leave, which may be “paid” by the government, but typically in amounts that are insignificant).
The question of whether employers have an obligation to provide paid military leave remains unsettled as the airline cases continue to work their way through the federal court system, but victories for the plaintiffs could require a sea change in the way that military leave programs are administered across all industries.
Any additional paid leave obligation could be costly to employers who employ large numbers of service members, as well as raising hosts of additional questions. How much paid leave would be required? Could employers distinguish between short-term service and longer-term service? Would employers respond by eliminating some of their other paid leave programs?
Surely (Shirley?), it is an issue worth keeping an eye on.
Author Joe Skinner is an attorney in Husch Blackwell’s St. Louis office focusing on labor and employment law.
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