DOJ Settles First USERRA Class Action Lawsuit
(Published July 7, 2008)
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In 2006, the Department of Justice (DOJ) filed the first class action lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The DOJ charged American Airlines with violating the rights of pilots who are military reservists by not allowing them to accrue vacation and sick leave benefits while on military leave, while permitting pilots on non-military leave to accrue such benefits.
In April, the DOJ and American Airlines reached a settlement agreement that will require the airline to pay the class of 353 pilots a total of $345,772 for the loss of vacation and sick leave benefits, and to provide currently employed pilots with sick leave credits at an estimated value of $215,000. The settlement agreement also calls for the airline to modify its existing policies and practices to ensure that, in the future, all pilots who are called to serve in the military will continue to accrue appropriate vacation and sick leave benefits as called for under USERRA. (Woodall v. American Airlines, Inc., N.D.TX, No. 3:06-CV-0072-M, 2008)
Where American Airlines Went Wrong
USERRA requires that employees on military leave be afforded the same non-seniority-based benefits given to employees on comparable forms of leave. USERRA’s final regs, issued in 2005, specify that the accrual of vacation time is a non-seniority-based benefit.
In order to determine whether different types of leave are considered "comparable," the duration of each leave is the most significant factor to compare. Example: A two-day funeral leave wouldn’t be considered comparable to an extended leave to perform military service. Other factors that may be taken into consideration are the purpose of the leave and the ability to choose when to take the leave.
If non-seniority benefits vary according to the type of leave, the service member must be given the most favorable treatment accorded to any comparable form of leave.
Be Aware Of The DOJ
The Civil Rights Division of the DOJ has given a high priority to the enforcement of service members’ rights under USERRA and has initiated several lawsuits on behalf of service members.
In April, the DOJ filed a lawsuit against the New York State Correctional Services for allegedly failing to adjust an employee’s seniority after he passed a make-up promotion exam, thereby denying him the seniority, status, and compensation he would have received but for his military service.
In May, the DOJ filed a settlement against Albuquerque-based Acme Towing & Recovery, which allegedly demoted and then fired an employee due to his absences for required duty in the military reserves. Shortly after, the DOJ announced that it filed a lawsuit against Gibson County, Tennessee, for allegedly failing or refusing to promptly re-employ a part-time EMT following her return from military service and failing or refusing to promote her to a full-time EMT position or to give her the seniority, status, and compensation she would have received but for her military service.
Related topic(s): Leave/USERRA - Uniformed Services Employment and Reemployment Rights Act, Benefits/Vacation
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