Class Action Alleges Southwest Violated Military Leave Law By Delaying COVID-19 Extended Time Off Pay, Benefits [DISMISSED]
Last Updated on April 19, 2022
Weaver v. Southwest Airlines, Co.
Filed: July 28, 2021 ◆§ 1:21-cv-01891
A class action alleges certain Southwest Airlines workers have been denied the pay and benefits promised through a COVID-19 Extended Emergency Time Off program due to being on long-term military leave.
Maryland
Case Updates
April 19, 2022 – Southwest Military Pilot COVID-19 Leave Case Dismissed
The proposed class action detailed on this page was dismissed without prejudice on April 1, 2022.
In an 11-page memorandum opinion, U.S. District Judge Richard D. Bennett wrote that he would be granting Southwest’s motion to toss the case, finding that the plaintiff failed to plead that the airline’s COVID-19 extended emergency time off program treated military leave less favorably than any other form of leave.
Judge Bennett wrote that because the plaintiff did not allege that Southwest employees on military leave were excluded from the program while employees on other types of leave were included, the man failed to plead “an essential element of a claim” under the Uniformed Services Employment and Reemployment Rights Act of 1994.
Moreover, the judge stated that the plaintiff failed to sufficiently allege that Southwest took an adverse employment action against him, such as a decrease in pay, job title, level of responsibility or opportunity for promotion.
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A lieutenant colonel in the District of Columbia Air National Guard alleges he and similarly situated workers have been unlawfully denied the pay and benefits promised by Southwest Airlines through its COVID-19 Extended Emergency Time Off program (ExTO) due to being on long-term military leave.
The 13-page suit claims Southwest has run afoul of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), a law that grants members of the United States Armed Services a number of workplace protections in the event they must take leave or be on furlough due to service obligations. The case claims Southwest allowed pilots on active military leave to participate in its ExTO program yet told the workers, who last year were encouraged by the airline to maximize their amount of military leave, that their benefits through the program would not start until after they’d returned from service.
“Plaintiff and the Class have been prevented from accruing the pay and benefits provided under the ExTO program until they returned from military leave, because they were still absent or considered by SWA to be absent due to military leave on or about September 1, 2020,” the suit says, claiming the airline “repeatedly and intentionally” failed to allow those on military leave to participate in the program despite encouraging proposed class members to maximize their military leave.
In an effort to save costs, Southwest, around March 2020 and again in May of that year, actively encouraged employees to take the maximum military leave possible over 2020 and 2021, the lawsuit begins. Per the case, Southwest informed employees that military leave from March 1, 2020 through August 2021 would not be included as part of an employee’s five-year cumulative USERRA exempt duty calculation.
In June 2020, Southwest announced its ExTO program, a leave of absence with no employment commitments and for which an employee would receive a reduced amount of pay and full benefits, including sick time and vacation accrual, employee pass travel, jumpseat privileges, and perfect attendance awards, the suit relays. The ExTO program could be participated in for periods of six months to anywhere from one to five years, the case says, stating that active employees were eligible for ExTO as long as they were not absent due to a leave of absence. All active pilots with a valid medical clearance and who were not on a leave of absence were eligible to request ExTO, the suit adds.
More specifically, those participating in ExTO, regardless of the duration, would receive approximately 50 percent of their base pay, and pilots would receive approximately 55 pay credits or hours, for each month of ExTO, according to the lawsuit. Employees were required to enroll in the ExTO program between June 1 and July 15, 2020, the case says.
In late June 2020, however, Southwest issued a memo to military pilots that stated those currently on military leave would be allowed to bid for ExTO by July 15, but the extended leave and the benefits provided under the program would not begin until their return from military service, the lawsuit says. According to the complaint, the plaintiff was on a long-term military leave of absence from July 16, 2019 through July 31, 2021.
“Because Plaintiff was on military leave during the ExTO bidding process, he was and is being denied the pay and benefits under the ExTO program,” the case alleges. “Because Plaintiff was on military leave, he did not receive the pay and benefits under the ExTO program for the month of September 2020 and will not receive the pay and benefits until his return from military leave.”
In September 2018, Southwest agreed to a nearly $6 million settlement in a class action that alleged the airline failed to make retirement payments and provide sick leave for stints of military services for a proposed class of as many as 2,000 pilots. In February 2021, a judge certified a class of close to 7,000 Southwest workers who alleged they were denied pay for short-term military leaves.
The case looks to cover all individuals who are or were employed by Southwest Airlines, were or are members of the U.S. Armed Services or National Guard and took military leave from March 1, 2020 to the date the class might be certified and who did not receive the pay and benefits as provided by the COVID-19 extended emergency time off program.
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