A former ExpressJet Airlines flight attendant claims the carrier has unlawfully discouraged employees from taking medical leave, withheld vacation pay from departing workers and failed to inform those who left the company of their right to continued health insurance coverage.
After working for ExpressJet for over 16 years, the plaintiff requested leave under the Family and Medical Leave Act (FMLA) for surgery for a “serious, time-sensitive” medical issue that would impact her ability to perform her job, the case says. According to the suit, the plaintiff, a full-time employee, was wrongly informed by ExpressJet that she was ineligible for FMLA leave, and instead encouraged to seek a medical leave of absence from September 14, 2019 to December 1, 2019.
Upon the plaintiff’s return to ExpressJet, the woman was informed that her leave of absence counted as an “instance” against her that could result in termination, the suit says. According to ExpressJet’s employee handbook, ”instances” are counted as any time an employee takes sick leave, shows up late to work, or fails to report for a shift, the lawsuit says, adding that any of which could result in disciplinary action should a worker accrue a certain number of instances within a 12-month period.
The plaintiff claims she was never told before taking her employer-directed leave of absence that the pre-approved leave would be charged as an “instance” against her employment. Additionally, the woman says ExpressJet’s employee handbook expressly states approved leaves of absence are not considered “instances” and are therefore exempt from disciplinary action. Moreover, the plaintiff argues that she had not accrued enough instances to warrant termination.
After being given a choice between retirement and termination, the plaintiff submitted a written retirement notice in which she made clear that her departure from the airline was involuntary and forced by ExpressJet as her only means of avoiding termination. Upon the plaintiff’s separation from the defendant, ExpressJet failed to pay the woman for three weeks of accrued vacation time and one week of “flex” vacation time for which she had opted in lieu of contributions to her 401(k) plan, the complaint claims.
“Upon information and belief, ExpressJet willfully and intentionally treats other flight attendants—especially those who, like Plaintiff, have earned significant seniority—in the same manner in its effort to foreclose paying accrued vacation benefits,” the suit alleges.
The case further argues that ExpressJet never informed the plaintiff of her statutory right to continued health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA), nor of her eligibility to participate in the Retiree Medical Bridge Plan for continued medical insurance.
As the plaintiff tells it, ExpressJet sent her a COBRA benefits election notice only after she “repeatedly hounded” the airline. The suit says, however, that the COBRA notice arrived 77 days after the qualifying event of her forced retirement.
“Between January and February 2020, Plaintiff called ExpressJet’s benefits department at least three times requesting the COBRA information to which she was entitled by law and which she was not obligated to request,” the complaint states, adding that it was the airline’s responsibility under COBRA to provide proper notice of the plaintiff’s rights no more than 44 days after a qualifying event.
The plaintiff says that by the time she received a COBRA form, she was ultimately forced to forego continued health insurance because of the “exorbitant up-front costs” of coverage back-dated to her retirement.
According to the lawsuit, ExpressJet’s failure to provide the plaintiff with proper notice of COBRA or Retiree Medical Bridge Plan benefits is a “matter of pattern and practice” applied to all departing employees.
The lawsuit adds that ExpressJet’s apparent conduct is especially egregious given the COVID-19 pandemic’s devastating impact on the airline industry and its employees. From the complaint:
“ExpressJet flight attendants, now more than ever, must be permitted to receive the family medical leave to which they are entitled. If their employment ends, now more than ever, they must be promptly notified of their rights for the continuation of medical insurance without having to hound the airline. And upon termination, whether voluntary or involuntary, ExpressJet must fairly distribute all vacation and flex benefits that each flight attendant has earned through diligently working for this airline.”
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