USERRA escalator

phoenix 23684

Well-Known Member
#1
Hello,

I was wondering if any one on this forum has had experiences with dealing with USERRA in regards to upgrade while being out on mil leave. While I was out on mil leave my seniority could hold captain. The airline agrees that they will honor captain when I return. My question is do I get paid as a captain when I come back while I wait for the next available upgrade class or do I get paid as an FO until I complete upgrade then get retro pay to the day I came back?

I have found no court case relating to this topic, all I have is the USERRA regulation:

1. (A) In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; Section 4313 (a) (2) (A)

Seems the second part in the regulation seems to point out that I would come back to the captain pay as long as I can become qualified, not that I have to be qualified first. What are your thoughts?
 

Soku39

Well-Known Member
#3
Hello,

I was wondering if any one on this forum has had experiences with dealing with USERRA in regards to upgrade while being out on mil leave. While I was out on mil leave my seniority could hold captain. The airline agrees that they will honor captain when I return. My question is do I get paid as a captain when I come back while I wait for the next available upgrade class or do I get paid as an FO until I complete upgrade then get retro pay to the day I came back?

I have found no court case relating to this topic, all I have is the USERRA regulation:

1. (A) In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; Section 4313 (a) (2) (A)

Seems the second part in the regulation seems to point out that I would come back to the captain pay as long as I can become qualified, not that I have to be qualified first. What are your thoughts?
First is this a regional or a real airline?

Second, in my opinion you're an FO, and should be paid as such. The key word as I read it is "qualified" which you are not as you have not completed Captain training. It is also not up to the airline to run an upgrade class for one person in they have no vacancies or need to do so. Of course they do have to requal you for FO, and you should be paid from the day you were first available to requal, not when they actually have sim, classroom or instructor availability. Upgrade when you have the next opportunity to do so, I do not think retro pay would be owed. You were on military leave and were unavailable for the upgrade class leading to the higher rate. It isn't as if they were discriminating against you simply for being military. The same would apply for someone on FMLA, long term sick leave, etc.
 
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