Legal Advice on forced resignation

[darin scott]

Need help, any one out there that can give advice on a forced resignation from a employer who terminated an employee for getting sick and filed a FMLA and the company denies they recieved the papers from the Doctor
office. The Doctors has copies of the records and the envelope sent and
all papers signed. Employee was given no choice but to resign or face
NEVER working in the Flying Business again. Almost 2 1/2 years have gone by now awaiting Arbitration. Union sometimes looks like they are just not really wanting to deal with this. Any thoughs out there??

[FatBastard]

Sounds like you need to talk to a lawyer. If you can prove what you said, it may have to go to court. Hope everything works out for you.

[wheelsup]

Get a good lawyer, and be happy, you'll get one heck of a payday if it can be proven.

[MQAAord]

Moved from "Interview Experiences" to "General Topics". (It's not an interview experience )



Did you qualify for FMLA? In terms of length of employment, etc? If you met the legal qualifications of FMLA, I would certainly think you have a case.

If it were me, I'd call my union every day until I found out either the arbitration date or the reason whey they're delaying. If they are dilly-dallying then I would get my own individual legal counsel and build a case not only against the company for denial of FMLA but also the union for failure of representation.

[Velocipede]

Originally Posted by MQAAord

Did you qualify for FMLA? In terms of length of employment, etc? If you met the legal qualifications of FMLA, I would certainly think you have a case.

Not necessarily. My airline routinely denies FMLA requests from pilots. Why? By law, we're not "full time employees" because we don't work 40 hours a week. How stupid is that?

If it were me, I'd call my union every day until I found out either the arbitration date or the reason whey they're delaying. If they are dilly-dallying then I would get my own individual legal counsel and build a case not only against the company for denial of FMLA but also the union for failure of representation.

He's have a better chance sueing the Company than the Union. If the Company is using the legal definition of "full time employee" to base the denial on, there is absolutely NOTHING the Union can do to counteract that. Believe me, we've tried.

The sad thing is that "full time employee" excuse is so bogus its laughable, but in my state, 40 hours a week is the threshold for full time status.

Considering pilots cannot fly over 30 in 7, the Companies are in the clear. They don't consider TAFB in the equation because you're not on duty.

[PCL_128]

I would need more information on this to give you advice. Velo is correct that a few employers are trying to misinterpret FMLA in order to deny it to airline employees. Most state labor boards will not agree with that misinterpretation, and they force the airline to provide leave, but Velo's company has managed to get away with it. There is currently a bill in Congress that would end this problem by clarifying the language to make it clear that "duty time" is what is meant for qualifying purposes.

But, if this misinterpretation isn't what is being used to deny your friend's claim, then the company has little ground to stand on. Has your friend spoken directly with the labor board in his company's state? Issues dealing with FMLA are usually better handled through the labor board rather than through a union. I also recommend speaking with a labor attorney that is familiar with FMLA and the RLA. Such an attorney can be difficult to find, but they are out there.

[Minnesota_Flyer]

Employee needs to get his/her own lawyer who understands the FMLA.


To Velo's point, the FMLA eligibility requirements are that the employee have been employed for at least 12 months by the employer and that the employee have been employed for "at least 1,250 hours of service with such employer during the previous 12-month period." This comes to about 25 hours/week. There is no requirement under the FMLA that the employee be "full-time," and the opinions of state labor boards are totally irrelevant. Compliants under FMLA are brought before the federal Department of Labor and/or a federal court.

Again, the employee should contact a lawyer who understands FMLA to get a handle on his/her rights.

[JEP]

Originally Posted by Minnesota_Flyer

Employee needs to get his/her own lawyer who understands the FMLA.


To Velo's point, the FMLA eligibility requirements are that the employee have been employed for at least 12 months by the employer and that the employee have been employed for "at least 1,250 hours of service with such employer during the previous 12-month period." This comes to about 25 hours/week. There is no requirement under the FMLA that the employee be "full-time," and the opinions of state labor boards are totally irrelevant. Compliants under FMLA are brought before the federal Department of Labor and/or a federal court.

Again, the employee should contact a lawyer who understands FMLA to get a handle on his/her rights.

Not that Minnesota Flyer needs my backup, but he speaks the truth. I just had to suspend a union employee for excessive absenteeism. When she found out that her sick time was used up and would be unpaid she used the "FMLA" card. Her request was denied because of the 1250 hours requirement. Her time was just under by about 60 hours. It had nothing to with her PT/FT status. HAd sshe worked another 60+ hours her request would have been granted even though she was part-time.

[PCL_128]

Originally Posted by Minnesota_Flyer

and the opinions of state labor boards are totally irrelevant. Compliants under FMLA are brought before the federal Department of Labor and/or a federal court.

Correct. I said state labor boards when I meant district office for the DOL. At Pinnacle, we referred all pilots with FMLA problems to the MI DOL office. Several cases were resolved when the DOL office called PCL management and informed them that they were handling FMLA in an illegal manner (denying legal claims, not handling claims privately, etc...). A simple call from the DOL will scare many companies into complying with the law. Others (Velo's company, for example) are trying to get by on a technicality.

[darin scott]

Thanks guys,

I can see that there's alot good Pilots out there. The case is so up in the air. The person was employed since 2001 with the company and terminated at the end of 2005 . more than 3200 hours of flying. The union is working on it, however the company is grabbing at straws to
hold on by deadlocking. They claim they never recieved the papers,
however the Doctor office workers are witnesses who sent the Documents
are more than sure they recieved them. At this company the same office
did the same thing to another Pilot, they claim they never recieved the papers, However the pilot won in Abritration. It seems that this has happen before. Also the the 2 Key people in this case are Both no longer
employed at the company. Its unknown why and how they lost there jobs.
One I believe was fired for some reason. From what I understand all
Pilots are hired at full time status.

[JEP]

Originally Posted by darin scott

Thanks guys,

I can see that there's alot good Pilots out there. The case is so up in the air. The person was employed since 2001 with the company and terminated at the end of 2005 . more than 3200 hours of flying. The union is working on it, however the company is grabbing at straws to
hold on by deadlocking. They claim they never recieved the papers,
however the Doctor office workers are witnesses who sent the Documents
are more than sure they recieved them. At this company the same office
did the same thing to another Pilot, they claim they never recieved the papers, However the pilot won in Abritration. It seems that this has happen before. Also the the 2 Key people in this case are Both no longer
employed at the company. Its unknown why and how they lost there jobs.
One I believe was fired for some reason. From what I understand all
Pilots are hired at full time status.

It does not matter what their 'status' is. They can be full-time, part-time, or any combination there of. What matters is the total number of compensated hours in the preceding 12 months. If a person has 1250 compensated hours in the previous 12 months then they would be eligible for FMLA status. While 1250 hours would 'normally' be considered PT in most places they would still be eligible. Basically, 1249 hours - not eligible; 1250 and above eligible.

[MQAAord]

Originally Posted by darin scott

Thanks guys,

I can see that there's alot good Pilots out there. The case is so up in the air. The person was employed since 2001 with the company and terminated at the end of 2005 . more than 3200 hours of flying. The union is working on it, however the company is grabbing at straws to
hold on by deadlocking. They claim they never recieved the papers,
however the Doctor office workers are witnesses who sent the Documents
are more than sure they recieved them. At this company the same office
did the same thing to another Pilot, they claim they never recieved the papers, However the pilot won in Abritration. It seems that this has happen before. Also the the 2 Key people in this case are Both no longer
employed at the company. Its unknown why and how they lost there jobs.
One I believe was fired for some reason. From what I understand all
Pilots are hired at full time status.

Certainly sounds qualifying there!

Sorry the company is being such butt-heads about it. They probably know they're going to lose and are putting out every stop possible they can.

And Jim is right about the full-time/part-time thing.

[JEP]

Originally Posted by MQAAord

Certainly sounds qualifying there!

Sorry the company is being such butt-heads about it. They probably know they're going to lose and are putting out every stop possible they can.

And Jim is right about the full-time/part-time thing.

Those hours though would not appear to add up. If said employee worked through the end of 2005 and started in 2001, that would be 4+years which would average out to 800 hours per year, give or take. That number in itself would not qualify.

The compensated hours was recently raised to 1250 so it was probably less during that time. I doubt it was 400 hours less though.

It would also depend on when said employee filed for FMLA. Suppose he worked 1250 hours in 2002, 800 in 2003, and then on Jan 1, 2004 he applied for FMLA status. Because he did not meet the hours required in the previous 12 months (2003) he would be denied.

[B767Driver]

Originally Posted by darin scott

Need help, any one out there that can give advice on a forced resignation from a employer who terminated an employee for getting sick and filed a FMLA and the company denies they recieved the papers from the Doctor
office. The Doctors has copies of the records and the envelope sent and
all papers signed. Employee was given no choice but to resign or face
NEVER working in the Flying Business again. Almost 2 1/2 years have gone by now awaiting Arbitration. Union sometimes looks like they are just not really wanting to deal with this. Any thoughs out there??

My observations of past experiences in these situations is that ALPA lawyers will advise the employee to take the resignation rather than fight for the job.

Of course, this is probably true of most lawyers and not just ALPA.

[darin scott]

Hi,

I wanted to answer JEP input in the hours need to qualify for FMLA.

The company said that the employee qualify for a FMLA that is why they
sent papers to him for his Doctor. They are not denying the FMLA, they are playing the game they Never recieved the Papers. They playing Dumm!! The whole situation stinks, please believe me. many mistakes
were made during the whole nightmare. the person who was in charge
and handling this not an employee, something happen to his employment.
Possible fired or something, but know one will tell him what happen?

[lostplanetairman]

There is a two year statue of limitations to file a charge with the US DOL unless the employer willfully violated the act (then it's three). So, you may have a problem because the employer is not claiming that the employee was ineligible in willful violation of the act. Instead they are claiming they never got the paperwork. I am curious as to why, on day 14 of the 15 day period in which the paperwork must be provided, the employee didn't seek confirmation that the paperwork had been received.

[darin scott]

he did contact the company, however is was around the Holiday's in December. Impossible to get a hole of someone. When he did call, they said we did not get your papers, so you must return back to work NOW.
Employee said ok I'am ready to return. Company said I'll call you in about 2 or 3 days with the times and where you need to be. When that call came 4 days later, the CP said you were fired by HR, you are out of luck.

[Doug Taylor]

Were you on probation?

[OldTownPilot]

So by that 1250 hour logic, no pilot (under part 121) would be eligible for FMLA?.....unless duty hours are counted?....or Per diem hours?

[darin scott]

No, employed 4 years plus

[lostplanetairman]

Again, it appears too late to file the way he should have--forget the union and go straight to the US Department of Labor. But, even if there was no one around, he should have kept proof that he tried to contact them in good faith. The DOL would have upheld that.

But outside the union, I'm afraid his two year window for remedy has passed.

[PCL_128]

JEP, you're thinking about this from the perspective of a non-airline employer. The 1250 hours is being used as a loophole to deny employees the rights that the law intended to provide them. This is a technicality. Any employer that tries to deny FMLA rights on this basis is a scumbag operation. The intent of the law is clear.

[PCL_128]

Originally Posted by B767Driver

My observations of past experiences in these situations is that ALPA lawyers will advise the employee to take the resignation rather than fight for the job.

Of course, this is probably true of most lawyers and not just ALPA.

ALPA attorneys never advise anyone to resign their job. ALPA has a strict policy about that. ALPA reps and attorneys will only explain your options to you. The decision is always yours, and ALPA will never try to push you towards the resignation option. To do so would put the Association at huge risk of liability.

[Doug Taylor]

FYI for those that have read this thread. We've had a practicing labor attorney make a post in this thread so read accordingly. I won't say who it is because I'm sure he would want a barrage of inquiries about other situations flooding his inbox and attorneys tend to shy away from giving "official" online advice.

[JEP]

Originally Posted by PCL_128

JEP, you're thinking about this from the perspective of a non-airline employer. The 1250 hours is being used as a loophole to deny employees the rights that the law intended to provide them. This is a technicality. Any employer that tries to deny FMLA rights on this basis is a scumbag operation. The intent of the law is clear.

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.

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......