Sponsor Message:
Aviation Technical / Operations Forum
My Starred Topics | Profile | New Topic | Forum Index | Help | Search 
Rights Of Reservists Vs Employers  
User currently offlineFlyMatt2Bermud From United States of America, joined Jan 2006, 563 posts, RR: 7
Posted (8 years 4 weeks 17 hours ago) and read 2838 times:

I think this is the appropriate forum. When a pilot decides to rejoin the Army Reserve how is their job protected? I found 1,000 sites describing the reservists rights for job protection and reemployment but what about the employers rights? When is a basis for "undue hardship?" typically recognized.

I specifically mention 'pilot' because a small flight department must spend a great deal of money in annual training expense. If a pilot takes leave, the position has to be filled, the training budget is then exhausted. Is the employer required by law to furlough the newly hired pilot after the reserve pilot returns from recurrent training (this would put the training budget in the RED)?


"When once you have tasted flight, you will forever walk the earth with your eyes turned skyward" Leonardo Da Vinci
15 replies: All unread, jump to last
 
User currently offlineSlamClick From United States of America, joined Nov 2003, 10062 posts, RR: 68
Reply 1, posted (8 years 4 weeks 14 hours ago) and read 2812 times:

Quoting FlyMatt2Bermud (Thread starter):
but what about the employers rights?

The reservists rights are limited to those specified in this and other labor laws. EVERYTHING ELSE you can imagine is the "right" of the employer.

So you are the one and only widget assembler at Acme Widgets and you join the reserves/national guard. Your employer is inconvenienced but must comply with the law. What can he do?

He can hire someone else to do precisely what you do, re-draw his organization chart and call the new guy a "widget assembly technician/supervisor" and place him above your old position. This entices the new person to take the job, protects your position and still gets widgets assembled.

Trick is, you might not want to work for the new guy. You might think that "promotion" is rightfully yours. He might get away with decreasing the salary of the position you used to hold because the supervisory functions have been taken away from it. I can't even think of all the things he might legally do that would make you not want to come back. Happens all the time!

On the other hand if you really performed well for Acme Widgets they can easily find a way to put you back in your old job.

Think of it this way. Unless it is prohibited in fairly specific terms by a specific law in force, it is legal. All you need is imagination.



Happiness is not seeing another trite Ste. Maarten photo all week long.
User currently offlineFlyMatt2Bermud From United States of America, joined Jan 2006, 563 posts, RR: 7
Reply 2, posted (8 years 4 weeks 12 hours ago) and read 2777 times:

I'm on the administrative side of this particular issue. We are a very small flight department. I support our forces and the pilots situation whether (voluntary or involuntary) however the cost of coverage in the interim will exceed $150K and that creates a problem in itself. Strategically the whole thing is a nightmare.

I guess I need to plant a cash tree orchard (though in reality money alone will not resolve the issues at hand).



"When once you have tasted flight, you will forever walk the earth with your eyes turned skyward" Leonardo Da Vinci
User currently offlineSlamClick From United States of America, joined Nov 2003, 10062 posts, RR: 68
Reply 3, posted (8 years 4 weeks 12 hours ago) and read 2773 times:

Quoting FlyMatt2Bermud (Reply 2):
I support our forces and the pilots situation whether (voluntary or involuntary)

Quite a few of my new-hire classmates held reserve commissions and had flying or non-flying slots at units around the west. During Desert Storm a few of them got called up. One of them once complained in the crew lounge that if his activation persisted until X-date he would lose every penny he had ever been paid by the reserves. He got not a shred of sympathy. It was pointed out that he had volunteered, that he'd bragged about his "furlough insurance" and so on.

Your problem is typical for small companies. At big outfits the sheer numbers mean that the problem is spread thinner.

Just before the windup for Vietnam my brother and his partner lobbied the DoD for draft exemption for one of their truck drivers. He hauled very long loads - total vehicle length >135' over mountain roads. It really was quite a skill but ultimately he was replaceable. We all are! Well it took so long to get his exemption that he'd already been drafted and served 8 months on active duty before they released him - but they did. Point is, there may still be a hardship exemption but probably not for reservists who are, after all, volunteers collecting pay year after year.



Happiness is not seeing another trite Ste. Maarten photo all week long.
User currently offlineFlyMatt2Bermud From United States of America, joined Jan 2006, 563 posts, RR: 7
Reply 4, posted (8 years 4 weeks 10 hours ago) and read 2744 times:

Really good info SlamClick. You have always maintained my respect with your remarks from your firsthand experience and observations.

The pilot in this case wants to accept the assignment. That means we have to rewrite our budget or consider our legal options for relief.
So everything gets spun up into a big ball of yarn and I just can't seem to find the end of it.



"When once you have tasted flight, you will forever walk the earth with your eyes turned skyward" Leonardo Da Vinci
User currently offlineSlamClick From United States of America, joined Nov 2003, 10062 posts, RR: 68
Reply 5, posted (8 years 4 weeks 9 hours ago) and read 2737 times:

Quoting FlyMatt2Bermud (Reply 4):

I can sympathize, having run a small flight ops dept. a couple of times.

One possible outcome: employers get nervous about hiring reserve/national guard in the first place. That would not be good as these guys usually bring great formal education, training and experience. They tend to be responsible, level-headed etc.

Do you know whether you have to be of a certain size (number of employees etc.) for this law to be applicable? I know that is a factor with other Federal rulings.



Happiness is not seeing another trite Ste. Maarten photo all week long.
User currently offlineFlyMatt2Bermud From United States of America, joined Jan 2006, 563 posts, RR: 7
Reply 6, posted (8 years 4 weeks 9 hours ago) and read 2735 times:

Quoting SlamClick (Reply 5):
Do you know whether you have to be of a certain size (number of employees etc.) for this law to be applicable? I know that is a factor with other Federal rulings.

I have no idea. "Undue hardship" is an option to avoid the obligation to rehire. But I am unable to find a definitive answer or interpretation of "undue hardship." I believe I have five items that would allow us to use that relief. But under the circumstances, this isn't a situation for me to interpret. I would appreciate someone providing some examples here. That is why my original post included:

Quoting FlyMatt2Bermud (Thread starter):
When is a basis for "undue hardship" typically recognized?



"When once you have tasted flight, you will forever walk the earth with your eyes turned skyward" Leonardo Da Vinci
User currently offlineLMP737 From , joined Dec 1969, posts, RR:
Reply 7, posted (8 years 4 weeks 7 hours ago) and read 2715 times:

The Marines have a saying, U Signed the M*%$#@! Contract!  Wink

User currently offlineJarheadK5 From United States of America, joined Nov 2005, 216 posts, RR: 1
Reply 8, posted (8 years 3 weeks 2 days 11 hours ago) and read 2563 times:

Quoting FlyMatt2Bermud (Reply 6):
But I am unable to find a definitive answer or interpretation of "undue hardship." I believe I have five items that would allow us to use that relief.

I'd be willing to bet that if you're intent on getting around your employee's USERRA rights, you'll have to spend some $$$ on a good lawyer who specializes in these sorts of things, and he'll advise you whether you've got a case or not. Might even be up to a judge to decide (on a case-by-case basis) - I don't know.

Be aware that we Reservists have an organiztion called ESGR on our side for these situations...



Cleared to Contact
User currently offlineYYZYYT From Canada, joined Apr 2005, 955 posts, RR: 0
Reply 9, posted (8 years 3 weeks 2 days 10 hours ago) and read 2557 times:

Quoting SlamClick (Reply 1):
Think of it this way. Unless it is prohibited in fairly specific terms by a specific law in force, it is legal. All you need is imagination.

or an over-paid lawyer.

SlamClick,
that sums-up employment law in a nutshell.


User currently offlineFlyMatt2Bermud From United States of America, joined Jan 2006, 563 posts, RR: 7
Reply 10, posted (8 years 3 weeks 2 days 7 hours ago) and read 2543 times:

Quoting JarheadK5 (Reply 8):
I'd be willing to bet that if you're intent on getting around your employee's USERRA rights, you'll have to spend some $$$ on a good lawyer who specializes in these sorts of things, and he'll advise you whether you've got a case or not. Might even be up to a judge to decide (on a case-by-case basis) - I don't know.

Be aware that we Reservists have an organiztion called ESGR on our side for these situations...

Look if someone has a desire to join the Army Reserve then great, I am all for it and I salute you. But I think it is out of line to expect me to cover the 14 to 28 weeks you need off (that's if you're not called up), and absorb the $40K in your annual training expenses that I loose 50% of the benefit of. Then cover your position which is going to require hiring another full time Captain because you can't tell me when exactly you need off for those extra courses and I don't know exactly when our next assignment will take us to Sydney.

We are a tiny little flight department, a major operator with multiple aircraft or an airline may be able to absorb these costs. If a legal action were to come up it would force us to close shop, literally. And who do you suppose fault is that....yeah chalk another one up to the terrorists.



"When once you have tasted flight, you will forever walk the earth with your eyes turned skyward" Leonardo Da Vinci
User currently offlineBjones From United States of America, joined Feb 2002, 123 posts, RR: 0
Reply 11, posted (8 years 3 weeks 2 days 3 hours ago) and read 2522 times:

Have you looked at ESGR's website? www.esgr.org

They have resources for employers there as well as a program where you can talk to people (I think annonymously in some cases) about your situation. They are there to try and promote the best environment for the Guard and Reserve and their members to work with the civilian employers.

I would suggest reading the law and its definition of undue hardship and then looking at legal reviews of cases where this was claimed. It is a narrow expemption but may be available to you.

Remember though it is the law to not discriminate in employment in any way towards members of any reserve component. It is not unreasonable to try to work with the member or their commander to try to minimize the impact on you but military necessity will determine the eventual outcome.


User currently offlineFlymatt2bermud From United States of America, joined Jan 2006, 563 posts, RR: 7
Reply 12, posted (8 years 3 weeks 2 days 2 hours ago) and read 2510 times:

Quoting Bjones (Reply 11):
Bjones From United States, joined Feb 2002, 113 posts, RR: 0

That is an excellent response. BJones. I will look into it. I am not opposed to assisting a reservist whether called voluntarily or involuntarily. It's just the consequences administratively, financially and productively would cause our costs to exceed our competitors and we would loose the management contract and the team members assigned to the aircraft would be terminated with nothing to do with discrimination.



"When once you have tasted flight, you will forever walk the earth with your eyes turned skyward" Leonardo Da Vinci
User currently offlineStarlionblue From Greenland, joined Feb 2004, 17041 posts, RR: 66
Reply 13, posted (8 years 3 weeks 2 days 2 hours ago) and read 2507 times:

Quoting SlamClick (Reply 5):
One possible outcome: employers get nervous about hiring reserve/national guard in the first place.

This problem reminds me of the "problems" inherent in hiring women of fertile age in nations with generous maternity leave laws. The US is "not so bad" with 6 weeks mandated. But Sweden, for example, has 12 months at 90% pay (going from memory) or you can stretch that out to 24 months at 45% pay. By law, you get your old job back. So in theory a woman can work for an employer for 6 months (thus working past the typical probation period), and then get pregnant, have two kids, and come back after 4 years to get her old job back.

Needless to say, this is a huge problem for small employers. And while they certainly get nervous about hiring women, they cannot "show it" because that would be discrimination.

Quoting SlamClick (Reply 1):
On the other hand if you really performed well for Acme Widgets they can easily find a way to put you back in your old job.

So true. A slacker is a slacker is a slacker. Doesn't matter if their job is "protected". On the other hand, a talented, hard-working employee will either be welcomed back or relatively easily find another job.

Good employees do not need the crutch of "guaranteed employment".



For the record, I support the rights of reservists and women to get their jobs back (up to a point; 2 years is too long), but they have to understand that life goes on around them while they are gone.



"There are no stupid questions, but there are a lot of inquisitive idiots."
User currently offlineJarheadK5 From United States of America, joined Nov 2005, 216 posts, RR: 1
Reply 14, posted (8 years 3 weeks 1 day ago) and read 2463 times:

Quoting FlyMatt2Bermud (Reply 10):
I think it is out of line to expect me to cover the 14 to 28 weeks you need off

By "cover", are you referring to paying this person a salary for 14-28 weeks during their Reserve time, or just finding another qualified individual to fill-in for your employee?

Quoting FlyMatt2Bermud (Reply 10):
because you can't tell me when exactly you need off for those extra courses and I don't know exactly when our next assignment will take us to Sydney.

It sounds like the person is trying to go to a military school, rather than being mobilized to Iraq or A-stan or some other garden spot of the world. If this is so, they should have firm school dates within a week or so; the new fiscal year starts 1 Oct, so all school seats & dates should be finalized shortly. Incidentally, that's my situation right now - I'm waiting for finalized school dates in the new FY, so I can tell my civilian employer exactly when & how long I'll be away. It sounds to me like you need to sit-down with this person and get as much info as possible about what he/she is trying to do Reserve-wise (if you haven't already), and see whether the "can't tell me when exactly you need off" issue is due to school-start dates not quite firmed-up yet, or whether there's some other issue.


The tone of your response to me sounds like you took offense to what I said. I wasn't trying to put you down for speculating about getting rid of your employee... but I did want to point out to you that if you do try to get around USERRA, it could come back to bite you in the nether regions.
As a Reservist who's been through this, I PERSONALLY disagree with what you're contemplating doing.
But with the details you've provided, I PROFESSIONALLY see the problem with your situation, and understand why you're looking at your options.

Quoting FlyMatt2Bermud (Reply 2):
Strategically the whole thing is a nightmare.

Concur 100%.



Cleared to Contact
User currently offlineFlyMatt2Bermud From United States of America, joined Jan 2006, 563 posts, RR: 7
Reply 15, posted (8 years 3 weeks 16 hours ago) and read 2449 times:

Quoting JarheadK5 (Reply 14):
By "cover", are you referring to paying this person a salary for 14-28 weeks during their Reserve time, or just finding another qualified individual to fill-in for your employee?

Our aircraft flys all over the world on demand, not much scheduled until two weeks out and always subject to change. Both cockpit crewmembers are required under the regulations we operate under to have their type rating and current training & qualification. So to just "find another qualified individual" to cover 2 weeks, plus 12 weekends, plus the qualification training (8 weeks) then the IP training (4 weeks) and I have feeling there would be a meeting here and a short course there. We will have administrative duties which will have to be reassigned. But to who? I just don't see someone out there that can "fit right in" without hiring them full time. Plus I guess we're going to have to pay transport to and from for the Reservist and covering pilot to crosspaths enroute to assignments.

I am really not sure how the client will react when we try to explain that their training and salaries are going up 40% next year. Though I think I have a good idea, I'm just trying to get the facts entirely before I complete my analysis.

Quoting JarheadK5 (Reply 14):
As a Reservist who's been through this, I PERSONALLY disagree with what you're contemplating doing.

If the contract is terminated, everyone assigned to the aircraft will also be released. What I am contemplating doing is protecting my job and if it can be done while maintaining the position then great!! But if it doesn't then again I don't know what will happen. I can only guess and as you have indicated previously in this thread, it won't be up to me.

Thanks for your comments



"When once you have tasted flight, you will forever walk the earth with your eyes turned skyward" Leonardo Da Vinci
Top Of Page
Forum Index

Reply To This Topic Rights Of Reservists Vs Employers
Username:
No username? Sign up now!
Password: 


Forgot Password? Be reminded.
Remember me on this computer (uses cookies)
  • Tech/Ops related posts only!
  • Not Tech/Ops related? Use the other forums
  • No adverts of any kind. This includes web pages.
  • No hostile language or criticizing of others.
  • Do not post copyright protected material.
  • Use relevant and describing topics.
  • Check if your post already been discussed.
  • Check your spelling!
  • DETAILED RULES
Add Images Add SmiliesPosting Help

Please check your spelling (press "Check Spelling" above)


Similar topics:More similar topics...
Engine Of 772ER Vs 772LR posted Mon Jul 31 2006 01:23:07 by ORDRyan28
Empty Weight Of 787-9 Vs A359. Whats Wrong! posted Tue Apr 4 2006 17:03:34 by AirA380
Operating Cost Of A332 Vs 772 On Route LHR To DAC posted Wed Mar 8 2006 00:06:25 by AirA380
Advantages Of A T-tail Vs. A Conventional Tail posted Sat Dec 17 2005 03:15:13 by Thrust
Center Of Gravity VS. B1 Bomber posted Thu Mar 18 2004 13:31:01 by Techrep
Salary Of Concorde Vs 747 Captains posted Thu Sep 19 2002 22:59:54 by KaiTakFan
Safety Of Flying Vs. Driving posted Thu Aug 15 2002 01:05:40 by Jhooper
Cost Of Multi Time In NE Vs The South posted Wed Aug 16 2006 00:01:46 by Soku39
Rate Of Climb: A333 Vs A343 posted Sun Jan 8 2006 19:58:41 by HT
Opt. Cost Of ATR 72 VS Dash 84 posted Sun Dec 19 2004 00:00:56 by AirbusCanada

Sponsor Message:
Printer friendly format