18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 737 Court determined that there were no genuine issues of material fact as to whether military leave was comparable to the other forms of leave as Plaintiff asserted, inasmuch as the other forms of leave were not comparable. Therefore, the Court held that Defendants were not required to pay Plaintiff for his military leave, and thus were entitled to summary judgment on Plaintiff’s paid leave claim. As to Defendant Horizon’s Virtual Credit policy, Plaintiff maintained that his assignment to a Reserve schedule was a demotion, thereby denying him certain seniority-based rights and benefits that would have accrued but for his military leave. The Court was unpersuaded by Plaintiff’s position. It held that Plaintiff’s assignment to a Reserve schedule was not a demotion because Plaintiff generally retained the same opportunities for advancement, working conditions, job location, shift assignment, and work responsibilities upon re-employment. Plaintiff was a Captain of a turboprop aircraft when he left for military leave and he was re-employed as a Captain of a turboprop aircraft when he returned and he received the same pay. The Court also opined that the Line Holder assignment was not a seniority- based right as Plaintiff maintained. For these reasons, the Court granted Defendants summary judgment as to the remaining counts. Moss, et al. v. United Airlines, Inc., 2021 U.S. App. LEXIS 36959 (7th Cir. Dec. 14, 2021). Plaintiff brought a class action alleging that Defendants deprived pilots of sick time accrual (Count I), vacation time accrual (Count II), and pension payments (Count III) during military leave in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Defendant moved for summary judgment on all three counts, and Plaintiffs cross-moved for summary judgment on Counts I and II. The District Court denied Plaintiffs’ motion in its entirety, and granted Defendants’ motion in part and denied it in part. On Plaintiff’s appeal of the District Court’s grant of summary judgment to Defendants on his sick time accrual claim, the Seventh Circuit affirmed the District Court’s ruling. Defendants United Air Lines, Inc. (“United”) and Continental Airlines, Inc., (“Continental”) merged by becoming wholly-owned subsidiaries of Defendant United Continental Holdings, Inc. Before the merger, United pilots accrued sick days during all periods of military leave and accrued vacation days during the first 30 days of military leave, and Continental pilots accrued sick days through the first 30 days of military leave and accrued vacation days through the first 90 days of military leave. After the merger, Defendants’ pilots accrued vacation days and sick days through 90 days of military leave. Plaintiff claimed that the vacation and sick time accrual policies both pre-merger and post-merger deprived pilots of benefits during military leave in violation of the USERRA. The Seventh Circuit ruled that the District Court correctly held that by the plain language of the statute, only seniority-based benefits were protected. The Seventh Circuit explained that the applicable provision of the USERRA states that “a person who is reemployed under this chapter is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.” Id . at *10-11. The Seventh Circuit determined that Defendants’ sick-time accrual was not a seniority-based benefit, as it was not a reward for length of service. The Seventh Circuit explained that by conditioning sick-time accrual on "Active Employment," it was based on accrual of work, and there was no vesting period and no relationship between seniority and benefits. Id . at *20-21. The Seventh Circuit opined that a lack of a vesting threshold suggested that sick-time accrual was not tied to seniority, but was deferred compensation designed to cover periods when an employee would be unable to report for work because of illness. Id . at *16. The Seventh Circuit reasoned that all employees were subject to the same company policies providing an accrual of five sick hours per bid period, no matter the level of seniority. The Seventh Circuit thus found that the nature of sick-time accrual was to serve as a “respite from work” and not to incentivize longevity or benefit seniority. Id . at 21. For these reasons, the Seventh Circuit affirmed the District Court’s ruling granting Defendants’ motion for summary judgment as to Plaintiff’s sick-time claim. Travers v. Fed Express Corp., 2021 U.S. App. LEXIS 23671 (3d Cir. March 16, 2021). Plaintiff, a Naval Reservist, brought a class action pursuant to the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Plaintiff took leaves from his employment with Defendant to fulfil his Reserve duties, but Defendant refused to compensate him for those absences because Defendant had a policy of not paying its employees for military leave. Plaintiff’s complaint asserted that because Defendant paid employees who missed work for other reasons, like jury duty, illness, and bereavement, it was required to pay him for his leave. The District Court dismissed Plaintiff’s complaint pursuant to Rule 12(b)(6), for failure to state a claim. It concluded that paid leave was not a “right and benefit” under the USERRA. On Plaintiff’s appeal challenging the District