Alaska Airlines may have to pay pilots for short-term military leave

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Court revives class action by military reservist

Disputed issues should be decided by a jury, court says

Judge had ruled military leave is distinct from jury, sick leave

By Daniel Wiessner

(Reuters) -A U.S. appeals court on Wednesday said Alaska Airlines may be on the hook to pay pilots who took short-term leave to fulfill military duties, rejecting claims that military leave is distinct from other types of paid leave offered by the airline.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals revived a class action claiming that because Alaska Airlines and subsidiary Horizon Air offer paid leave to pilots who are sick or have jury duty, it was required to do the same for members of the military.

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from firing or discriminating against workers who take military leave.

Trade group Airlines for America had filed an amicus brief last year warning of "grave consequences" for airlines and their customers if the court revived the case. Pilots possess unique control over their schedules that allows them to avoid conflicts between their jobs and military duties, the group said.

Alaska Airlines and Airlines for America did not immediately respond to requests for comment.

R. Joseph Barton, a lawyer for plaintiff Casey Clarkson, in an email said the ruling "reaffirms the core purpose of USERRA: to support the men and women who make personal sacrifices to serve their country, and to ensure that they're not put at a disadvantage when they answer the call to serve."

Clarkson, a military reservist, sued Alaska Airlines in Spokane, Washington, federal court in 2019 alleging violations of USERRA. He claimed the airline discriminated against pilots who were service members by not providing them the same paid leave for military service that employees received for other reasons.

Clarkson is seeking backpay for class members and liquidated damages, which can be granted if USERRA violations are found to be willful.

U.S. District Judge Thomas Rice in 2020 certified a class of more than 200 Alaska Airlines pilots who had taken military leave of 30 days or less since 2004.

But the judge dismissed the case a year later, concluding that military leave is not comparable to any other form of leave offered by the airline. Military leave is typically longer and more frequent and allows pilots to pursue "parallel careers," so the airlines were not required to pay for it, Rice said.

Clarkson appealed and the 9th Circuit on Wednesday reversed, saying the question should be presented to a jury.

"The court seemingly considered only the evidence presented by the airlines when it concluded no reasonable jury could find for Clarkson," Circuit Judge Richard Paez wrote.

The panel included Circuit Judge Bridget Bade and U.S. District Judge Haywood Gilliam of the Northern District of California, who sat by designation.

The case is Clarkson v. Alaska Airlines Inc, 9th U.S. Circuit Court of Appeals No. 21-35473.

For Clarkson: Jonathan Taylor of Deepak Gupta

For Alaska Airlines: Anton Metlitsky of O'Melveny & Myers


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