Legal Advice on forced resignation

[Doug Taylor]

I think most of us fall back on the contract.

Not to sound snotty, but generally at this level, if it's legit, generally the chief pilot will go to bat for the pilot, regardless of status, for the pilot.

I know a guy whose wife went into labor during his new hire checkride on the 727 and once again during his MD-88 checkride and it wasn't a problem.

Another guy's wife had a heart attack during his initial class, prior to systems school and Delta more or less told him "Go home, take care of your wife, don't worry about anything at all and call us when you're ready to resume training"

If you work for a chickenpoop company, largely expect a chickenpoop response.

[PCL_128]

Originally Posted by JEP

Yes, I am referring to a non-union employer. But to my knowledge there is no difference between 'types' of employers. In no way am I agreeing with it in this situation, but the 1250 'compensated' hours is a hard number. Technicality? Sure. It doesn't really matter what people feel the intent of the law is. It matters how the law is written.

The FMLA doesn't refer to 1250 "compensated hours," it merely states "1,250 hours of service." It later points to the Fair Labor Standards Act as the guide for "hours of service." Any reasonable interpretation of the FLSA will lead you to determine that all pilots and FAs comply with the 1,250 hours.

That being said, how are you pilots treated during training, upgrade, etc....? Are you paid any kind of hourly compensation? Do any 121 pilots come close to hitting 1250? Flyingwise, what are the monthly restrictions? Is it even feasible to hit 1250 with flying, training, etc......

It all depends on the individual contract. At Pinnacle, it would have been nearly impossible to reach 1250 credit hours for a year. At AirTran, I know many pilots that exceed that amount most years. The difference is in the "soft credits" that add up. We have lots of soft pay in our contract at AAI, but very little was in the PCL contract.

[JEP]

Originally Posted by PCL_128

The FMLA doesn't refer to 1250 "compensated hours," it merely states "1,250 hours of service." It later points to the Fair Labor Standards Act as the guide for "hours of service." Any reasonable interpretation of the FLSA will lead you to determine that all pilots and FAs comply with the 1,250 hours.



It all depends on the individual contract. At Pinnacle, it would have been nearly impossible to reach 1250 credit hours for a year. At AirTran, I know many pilots that exceed that amount most years. The difference is in the "soft credits" that add up. We have lots of soft pay in our contract at AAI, but very little was in the PCL contract.

The FMLA states: The employee is then qualified to receive FMLA benefits if they worked at least 1,250 hours during the 12-month period before the leave (which translates to 25 hours per week for 50 weeks).

Worked, compensated......semantics on my part. Most people that work are paid that's why I asked about how you are treated during training events, etc...If you are not given your 'block' rate, I could see hte company saying, it wasn't work(compensated) time.

Like I mentioned, the employer will watch the hours very closely. 1185 hours and you will be denied.

[PCL_128]

Originally Posted by JEP

The FMLA states: The employee is then qualified to receive FMLA benefits if they worked at least 1,250 hours during the 12-month period before the leave (which translates to 25 hours per week for 50 weeks).

And based on reasonable interpretations of the FLSA, time spent on duty would be considered "work hours."

I could see hte company saying, it wasn't work(compensated) time.

The company will say whatever they need to say to cheat hard working people out of what they deserve and are owed under the law. Airline managers are heartless bastards that don't care about the intent of the law. They only care about lining their own pockets and feeding their own egos.

[Cruise]

Originally Posted by PCL_128

And based on reasonable interpretations of the FLSA, time spent on duty would be considered "work hours."



The company will say whatever they need to say to cheat hard working people out of what they deserve and are owed under the law. Airline managers are heartless bastards that don't care about the intent of the law. They only care about lining their own pockets and feeding their own egos.

Score another two points for PCL_128!

[B767Driver]

Originally Posted by Doug Taylor

and attorneys tend to shy away from giving "official" online advice.

Doug,

I work with attorneys frequently on a couple of boards I serve on in the local community. I can't get an attorney to give good advice when I'm paying them for it. It's always the path of least resistance even in a situation overwhelmingly in your favor.

Can you tell I'm irked? It drives me nuts.

Are attorneys scared to death of litigation? Sures seems like it to me.

[Minnesota_Flyer]

A timely article from BNA:

A flight attendant who was terminated by Continental Airlines was not an eligible employee under the Family and Medical Leave Act because she did not work enough hours and also failed to establish that she was fired because of her pregnancy in violation of Ohio law, the U.S. Court of Appeals for the Sixth Circuit affirmed Jan. 7 (Staunch v. Continental Airlines Inc., 6th Cir., No. 07-3315,1/7/08).

"As an initial matter, a FMLA claim cannot be maintained by a plaintiff who was not an 'eligible employee,' " Judge Cornelia G. Kennedy stated. The airline maintained that Holly Staunch did not work 1,250 hours in the 12 months preceding her request for intermittent leave during her pregnancy.

Staunch argued that she worked the necessary hours. She sued the airline for interference and retaliation under the FMLA, for pregnancy bias under Ohio Revised Code §4112.02(A), and for wrongful termination in violation of Ohio's public policy against pregnancy discrimination.


Evidence Disputed

Continental's manager of human resources presented charts showing that Staunch worked 1,127 hours and 41 minutes from Jan. 21, 200l, through Jan. 22, 2002. The calculations were based on Continental's records, factoring in flight time, check-in time, ground time, de-brief time, and training time. Staunch's calculations, based on her own recollections, were presented as an undated list of tasks and hours.

The trial court did not decide whether Staunch worked the required 1,250 hours for Continental. Instead, it assumed that she was an eligible employee and granted summary judgment to the airline on the ground that her interference and retaliation claims had no basis in law. A unanimous appeals panel, however, found that she did not work the requisite hours and, as a result, was not an FMLA "eligible employee."

To determine if an employee worked the requisite 1,250 hours, Kennedy noted, the FMLA directs courts to use the principles employed by the Fair Labor Standards Act to calculate hours. Under the FLSA, she said, if an employer does not maintain an accurate record of hours worked, the employer has the burden of showing that the employee did not work the required hours.

On appeal, Staunch argued that Continental did not "maintain" an accurate record of her actual hours worked. She did not dispute that it kept proper and accurate time records but noted additional duties she had to perform outside of actual flight time and argued that the airline's time records did not accurately reflect the actual time she worked.

"Because some of these duties necessarily must take place outside of the flight hours on which compensation is based, we find that Continental did not 'maintain' a record of the actual hours spent performing these duties," Kennedy said. "Thus, Continental has the burden to prove that Staunch did not work the requisite 1,250 hours."


CBA Requirements

The airline "clearly demonstrated" that Staunch did not work enough hours, the court found.

Continental compiled the pay registers for each flight and added the time required by the collective bargaining agreement for check-in, de-briefing, training time, and ground time. Staunch tried to refute the calculations with her undated, generalized list, but her calculations were unsupported and inflated, Kennedy said.

"Continental's evidence showing that Staunch worked less than the requisite 1,250 stands unrefuted," Kennedy wrote. "Thus, Staunch was not an 'eligible employee' under the FMLA, and her FMLA claims fail as a matter of law."

[Minnesota_Flyer]

Originally Posted by B767Driver

Are attorneys scared to death of litigation? Sures seems like it to me.

I got out of litigation a few years ago because it sucks ###. I think most attorneys don't really like it. Some, though, really thrive on it.

[Cruise]

So if I read the above correctly, the article implied to be eligible for FMLA, you must be 'paid' for the 1250 hrs. Simply being at work (ie. overnights); while technically still at work, doesn't count. Is this correct?

[PCL_128]

Originally Posted by Cruise

So if I read the above correctly, the article implied to be eligible for FMLA, you must be 'paid' for the 1250 hrs. Simply being at work (ie. overnights); while technically still at work, doesn't count. Is this correct?

Overnights wouldn't count, but they added in all the duty time (check-in time, briefing time, ground time, etc...) and she still didn't reach the 1250 hours apparently. In other words, seems like she wasn't working very much that year. The FA tried to argue that CAL's records of the duty time weren't accurate, and she tried to offer up her own "recollection" of the duty times. Basically, this girl was trying to cheat. Even with all of her duty time, she still didn't total over 1250 hours.

[OldTownPilot]

Based on that opinion it looks like it's "duty time" that counts

104 (1250/12) duty hours per month shouldn't be too hard for a domestic pilot to maintain. International may be a bit more difficult with the one leg days. Dad's only looking at 93 hours of duty this month.

[Cruise]

Ok, thanks guys........

Simply put, Duty time not TAFB is what counts.

[Minnesota_Flyer]

Originally Posted by PCL_128

Overnights wouldn't count, but they added in all the duty time (check-in time, briefing time, ground time, etc...) and she still didn't reach the 1250 hours apparently. In other words, seems like she wasn't working very much that year.

This is my reading of the article also (and would be the correct (in my view) reading of the statute).

[PCL_128]

I just wish I could get these easy schedules with less than 1250 hours of duty time in a year. Sounds like a dream come true!

[lostplanetairman]

And this is one example of why FMLA is the most litigated law in the country. Look for even more when HR 1585 passes which will be the first expansion and is incorporating leave for families of military where it takes effect immediately, nothing is defined and it appears that employers have to grant 26 weeks of leave (with forced monitoring by the employer down to the minute) to take care of chores the person in the military would have accomplished had they been home (mowing the lawn, taking out the trash, coaching little league, etc).

[darin scott]

Hi Guys,

It seems like its heading for Arbitration in this case. I wanted to ask anyone on what will happen in Arbitration and what the Arbitrator will
be most interested in knowing? Anyone very hear of a simular case or
the experience in going to arbitration and after 2 years of waiting the chances of winning? Any thoughts?? Thanks