CHICAGO — A federal appeals panel upheld a ruling establishing United Airlines hasn’t violated a federal law by capping the amount of sick leave that can be earned by employees who are in the U.S. Armed Forces Reserves, while they are on active duty.
United pilot Michael Moss filed a class action complaint against the carrier in 2016, alleging it violated the Uniformed Services Employment and Reemployment Rights Act with a policy that capped sick-day accrual for reservists at 90 days. After U.S. District Judge Thomas Durkin ruled in favor of United, Moss took the issue to the U.S. Seventh Circuit Court of Appeals.
Seventh Circuit Judge Kenneth Ripple wrote the opinion, issued Dec. 14; Judges Ilana Rovner and Michael Scudder concurred.
According to the panel, United had a policy from 2005 through 2010 under which reservist pilots accrued sick time for the entire duration of active military duty. But at the same time, pilots flying for Continental could accrue only 30 days of sick time while on active duty. The companies began a merger in 2010, but didn’t standardize sick-time policy until 2014, settling on a 90-day cap.
United hired Moss in 2000 and furloughed him in September 2009. Continental hired him in January 2012. During that time he was commissioned as a U.S. Marine Corps Reserve lieutenant colonel.
The current union contract stipulates all pilots can bank five hours of sick leave per month of employment — whether working, on sick leave or vacation — saving a maximum of 1,300 hours. Pilots must be sick to use the leave and cannot convert unused leave to compensation when their employment ends.
Moss’ lone contention on appeal was that United violated the USERRA by capping sick day accrual to pilots on military leave because, as a seniority-based benefit, it should have continuously accrued. He also said there weren’t caps for pilots on leave for other reasons.
Judge Durkin certified the class action, but granted United’s motion for summary judgment. According to the panel, Durkin determined the sick-leave policy isn’t a seniority-based incentive as it doesn’t reward employees for the length of time they work for the airline.
The panel briefly reviewed the history of federal legislation intended to ensure private sector employees would not lose seniority benefits when they are called to active military duty. Ripple explained United’s position that “all employees earn the same amount of sick time. There is no vesting threshold; employees start to accrue sick time on their first day of work.”
Moss would have accrued the sick time had he been flying for United instead of the Marines, the panel said, but that alone doesn’t establish the benefit is based on seniority. The question, Ripple wrote, is “whether the benefit is backward-looking compensation for work performed or a future-oriented longevity incentive.”
The lack of a vesting period points toward the accrual of sicks days as “deferred compensation designed to cover those periods when an employee is unable to report for work because of illness, an event inherent in the human condition,” Ripple wrote. “Nor do United employees accrue more sick time the longer they have been at the company.”
The union contract does incorporate benefits based on seniority — pensions, severance pay, supplemental unemployment benefits — and those are administered differently than the sick pay, the panel said. Those benefits are intended to entice pilots to stay with the company, the sick time bank exists to keep pilots from flying while ill.
The panel also said Durkin correctly rejected Moss’ argument that United erred by treating military leave differently from jury duty, association and sick leave, but noted Moss didn’t raise that issue on appeal.
Moss has been represented in the case by attorney Brian J. Lawler, of Pilot Law P.C., of San Diego.
United has been represented by attorneys Chris A. Hollinger, Anton Metlitsky, M. Tristan Morales and Grace Leeper, of the firm of O'Melveny Meyers, of San Francisco, New York and Washington, D.C.