Go Back  PPRuNe Forums > PPRuNe Worldwide > Fragrant Harbour
Reload this Page >

Cathay sued in USA for illegal termination

Fragrant Harbour A forum for the large number of pilots (expats and locals) based with the various airlines in Hong Kong. Air Traffic Controllers are also warmly welcomed into the forum.

Cathay sued in USA for illegal termination

Old 22nd Mar 2015, 07:03
  #41 (permalink)  
 
Join Date: Dec 2012
Location: nowhere
Posts: 151
Likes: 0
Received 0 Likes on 0 Posts
FXDoggie,

A US company could do what they like, allow or disallow. He's employed by a US company in the US, what his obligation is to another country is of no concern to his US employer. This FA18 pilot was employed by a sub of CX, based in the US and therefore US Law applies and if CX don't like that they have the right to close up shop and move their employees to HK or elsewhere.

If a foreign tax service had the required muscle to enforce that I'm pretty sure the US company would comply.
ANCPER is offline  
Old 8th Apr 2015, 14:52
  #42 (permalink)  
Moderator
 
Join Date: Feb 2000
Location: UK
Posts: 14,202
Received 46 Likes on 24 Posts
How not to stay employable

This was, I thought, interesting - if a little sad.

PILOT, NOW TULANE UNIVERSITY STUDENT, WHO WORE UNIFORM TO CUT SECURITY LINE SUES AIRLINE | Article - Wed 08 Apr 2015 12:41:00 AM UTC | airsoc.com.
Genghis the Engineer is offline  
Old 8th Apr 2015, 16:03
  #43 (permalink)  
swh

Eidolon
 
Join Date: May 2001
Location: Some hole
Posts: 2,171
Received 24 Likes on 13 Posts
The lawyer is digging an even deeper hole for himself.

The HK CAD require persons issued with a medial certificate to report all injuries immediately.

Failure to do so is a breech of HKG CAD regulations, and thus fair grounds for termination.

Then saying he had a head injury associated with a loss of memory, that can result in a loss of a medical for 5 years to life depending on the reason to rule out epilepsy.

Did he declare that medical issues to the FAA when he worked for the airline in the US after CX ?
swh is offline  
Old 8th Apr 2015, 16:23
  #44 (permalink)  
 
Join Date: Jun 2001
Location: UK.
Posts: 4,390
Likes: 0
Received 1 Like on 1 Post
wears his former employer's uniform and badge to attempt to pass through a flight crew security line
Pushing his luck a bit, I'd say.
In the 1980s, I had tea without biscuits with Abdul for passengering into BAH on my employer's aircraft (GF) and wearing uniform to pass through crew security.
Some prat dobbed me in.
At least I was currently employed by the local outfit and living in Bahrain.
Basil is offline  
Old 10th Apr 2015, 23:40
  #45 (permalink)  
 
Join Date: May 1999
Location: Around
Posts: 47
Likes: 0
Received 0 Likes on 0 Posts
He wasn't employed by a US company. CX in the US is still a Hong Kong company. Administered in HK, paid in HK, HK registered aircraft.
HardRock is offline  
Old 11th Apr 2015, 02:56
  #46 (permalink)  
 
Join Date: Apr 2000
Location: FL, USA
Posts: 357
Likes: 0
Received 0 Likes on 0 Posts
Ok, I'll bite...

Ex CX from early 90's. When I went for my US citizen interview VETA LTD was on file as "US-company" for employment records. Does VETA still exist?

As some have mentioned here, messing with Resv or Guard obligations here in US is sacrosanct and inevitably a "really bad thing". I would hope CX have their ducks in line-astern formation for this case, could be really really ugly.

Btw, this guy seems a bit of a ****
Old Uniform thru TSA? Really??

I can understand why CX are teed-off with him....
RRAAMJET is offline  
Old 11th Apr 2015, 05:36
  #47 (permalink)  
 
Join Date: Jul 2012
Location: N. Am.
Posts: 39
Likes: 0
Received 0 Likes on 0 Posts
It doesn't matter if it's a US or foreign company. Obviously all US companies have to comply with USERRA (the law that applies here), but any foreign company with a brick and mortar presence in the US also has to comply. CX has offices in the US, therefore has to comply with the law. There's no ambiguity.
Will fly for Cash is offline  
Old 11th Apr 2015, 08:06
  #48 (permalink)  
 
Join Date: Sep 2009
Location: Retired-ville
Posts: 402
Likes: 0
Received 0 Likes on 0 Posts
Agreed if you are a 100% bona-fide US registered, domiciled and operating company, you will be obliged to allow employees to fulfil their USERRA and defense obligations.

I feel the question will be whether the legal minds decide which side of the HKG/USA fulcrum are the base guys sitting.

By way of example, take NZ 'based' crew and compare with Aus 'based' crew. Separated only by a small patch of water, 20 years in time travel, and the abilities of the AllBlacks rugby team, they are ostensibly very similar, but subtly quite different.

I believe the NZ crew may be effectively a HK company, and despite a NZ court ruling of recent which CX is seeking leave to appeal, means aspects like income tax could indicate contracts are favourably swayed to the HK side.
Conversely, the Australian mob are fully onshored, Australian company, and a soon to be (if it passes the vote) ratified EBA (Australian contract). that is likely to cover reserve/defence force aspects.

Sure any case held in a US jurisdiction will have a US flavour and degree of not quite so impartial bias against a "who the f*ck does this HK company think it is?" attitude of the dip**** complainant, but hopefully the individuals adjudicating on the case will decide which side of the see-saw fulcrum the US based/ HK contracted guys sit.

I see Mr "cut the line" received a 3 year probation for his well thought out plan of impersonating crew. He sounds like a fine upstanding character with integrity and morals that could be depended on. Quite un-befitting for a USN Officer and aviator.

If he achieves nothing else than being a thorn in CX's side, he may at least have cleared the muddied waters of US basings, and perhaps force the company to declare their hand and fully on-shore like many of the other based areas.

That's the price one has to pay for doing business in 1st world countries.
LongTimeInCX is offline  
Old 11th Apr 2015, 15:33
  #49 (permalink)  
swh

Eidolon
 
Join Date: May 2001
Location: Some hole
Posts: 2,171
Received 24 Likes on 13 Posts
Agreed if you are a 100% bona-fide US registered, domiciled and operating company, you will be obliged to allow employees to fulfil their USERRA and defense obligations.
The are already seen as HKG companies.

"On October 3, 2001, plaintiffs filed this action against CPA, USAB and Veta, as well as the two individual defendants. The three corporate defendants are incorporated in Hong Kong and have their principal places of business there"

"The record demonstrates that a Hong Kong employer terminated the nine plaintiffs for conduct that took place in Hong Kong. California has no interest whatever in deterring or regulating the adverse employment actions taken by a foreign employer with respect to non-resident foreign national employees for conduct and activities that took place in the foreign jurisdiction. Moreover, it seems clear that plaintiffs' employment, as well as its termination, are governed by the law and relevant civil aviation regulations of Hong Kong and the terms of the union agreement between HKAOA and Cathay."

Basically that case said they should have first been heard in HKG before clogging up courts in the US with foreign issues.

Keulen v. Cathay Pacific Airways - California Personal Injury Lawyers
swh is offline  
Old 11th Apr 2015, 20:01
  #50 (permalink)  
 
Join Date: Jun 2006
Location: Milky Way
Posts: 218
Likes: 0
Received 0 Likes on 0 Posts
Since this is such an open and shut case of venue, as some of you see it, then I suspect the judge should dismiss the case immediately as US law is not applicable.
BillytheKid is offline  
Old 11th Apr 2015, 22:22
  #51 (permalink)  
 
Join Date: May 2008
Location: All Over
Posts: 471
Likes: 0
Received 0 Likes on 0 Posts
swh..not so much.

There are many specific laws which apply to foreign corporations doing business with or within the United States. AND several amendments to these laws post 2002. Fr' instance, if a foreign corporation fired (or didn't hire) someone who was a U.S. National and black based on skin color and had any form of commercial dealings with the U.S., US law would apply, the case would be heard in a U.S. Court , and appropriate remedies would be applied there regardless of the individuals employment contract--or even its terms.

While a non-US national (or legal alien) would have trouble showing standing in a California court for activities occurring offshore, a U.S. National based and stationed within the U.S. and subject to U.S. law while there would not.
Shep69 is offline  
Old 12th Apr 2015, 05:45
  #52 (permalink)  
 
Join Date: Dec 2012
Location: nowhere
Posts: 151
Likes: 0
Received 0 Likes on 0 Posts
Hardrock

If that comment is aimed at mine it doesn't matter as the pilot is based in the US, CX carries out business in the US and is subject to US law for that part of its operation. He is no different than its US ground staff.

CX in HK is a HK based company, yet is handing over tax details of its US pilots living and based in HK!!! Why? Because if they don't the IRS will use US dom law to **** CX in the US. The guy is based in the US at the request of CX, he's not based elsewhere and commuting so the company is subject to US employment law.
ANCPER is offline  
Old 12th Apr 2015, 20:09
  #53 (permalink)  
swh

Eidolon
 
Join Date: May 2001
Location: Some hole
Posts: 2,171
Received 24 Likes on 13 Posts
Shep,

I agree to an extent, he was a resident. That is the major change here, still employed by a foreign company, and subject to a foreign laws.

Ancper,

USAB/Veta is incorporated in hkg. He was employed and terminated in hkg. News to me if ground staff at outports are employed in hkg.

IRS is a different issue, US taxpayers have to pay tax on worldwide income, nothing new there. It is not specific to CX, look the Swiss and Indian banks handing over information on US tax payers.
swh is offline  
Old 12th Apr 2015, 21:26
  #54 (permalink)  
 
Join Date: Jun 2006
Location: Milky Way
Posts: 218
Likes: 0
Received 0 Likes on 0 Posts
SWH-

While your citation is respectable, I find it irrelevant in this case because of USERRA. There are clauses specifically covering foreign employers in that law. The case you cited does not involve this law. As such, California law would not apply to a foreign carrier. I doubt the US Government will agree that a pilot based in the US and paid in US Dollars works for a foreign company.

Sec. 4319. Employment and reemployment rights in foreign countries.

(a) LIABILITY OF CONTROLLING UNITED STATES EMPLOYER OF FOREIGN ENTITY- If an employer controls an entity that is incorporated or otherwise organized in a foreign country, any denial of employment, reemployment, or benefit by such entity shall be presumed to be by such employer.

(b) INAPPLICABILITY TO FOREIGN EMPLOYER- This subchapter does not apply to foreign operations of an employer that is a foreign person not controlled by or United States employer.

(c) DETERMINATION OF CONTROLLING EMPLOYER- For the purpose of this section, the determination of whether an employer controls an entity shall be based upon the interrelations of operations, common management, centralized control of labor relations, and common ownership or financial control of the employer and the entity.

(d) EXEMPTION- Notwithstanding any other provision of this subchapter, an employer, or an entity controlled by an employer, shall be exempt from compliance with any of section 4311 through 4318 of this title with respect to an employee in a workplace in a foreign country, if comliance with that section would cause such employer, or such entity controlled by an employer, to violate the law of the foreign country in which the workplace islocated.'.
BillytheKid is offline  
Old 12th Apr 2015, 21:39
  #55 (permalink)  
 
Join Date: May 2008
Location: All Over
Posts: 471
Likes: 0
Received 0 Likes on 0 Posts
20 CFR § 1002.34 Which employers are covered by USERRA?
(a) USERRA applies to all public and private employers in the United States, regardless of size. For example, an employer with only one employee is covered for purposes of the Act.
(b) USERRA applies to foreign employers doing business in the United States. A foreign employer that has a physical location or branch in the United States (including U.S. territories and possessions) must comply with USERRA for any of its employees who are employed in the United States.
(c) An American company operating either directly or through an entity under its control in a foreign country must also comply with USERRA for all its foreign operations, unless compliance would violate the law of the foreign country in which the workplace is located.

Section (b) would apply. I could see how someone could try to CLAIM a person stationed at an official designated US base there, who started, ended and performed other duties at their physical presence there (and who was paid in US dollars) wasn't really employed at the designated base there--good luck with that in front of a jury. Doesn't work for the IRS or much anything else.

Although in all candor methinks the person carrying the torch for this particular cause might have quite a bit of baggage with some personal issues. Could be a chicken and egg thing (i.e. the subsequent sacking caused a bit of a downhill slide or the sacking and post-employment problems were caused by personal issues to begin with). Regardless, the law's the law.

Last edited by Shep69; 13th Apr 2015 at 01:08.
Shep69 is offline  
Old 13th Apr 2015, 08:09
  #56 (permalink)  
 
Join Date: Dec 2012
Location: nowhere
Posts: 151
Likes: 0
Received 0 Likes on 0 Posts
swh

Whether or not he was originally employed in HK or not isn't relevant. My understanding is that he was US based, he starts and finishes work there and that is all that matters. Same reason why CX had to back pay the Aust. based crew for LSL.

Regards the IRS and foreign banks they are being strong armed and forced to do so by US courts as they have ops in the US and their US based subs will be penalised if they do not comply. If you didn't have any presence in the US you could tell the IRS and the US courts to go and get stuffed. US requirement to pay tax on world wide income is a US IRS problem and not a problem for anyone else unless you physically do business in the US.
ANCPER is offline  
Old 26th Jan 2016, 23:19
  #57 (permalink)  
 
Join Date: Nov 2007
Location: Where You Aren't
Posts: 506
Likes: 0
Received 0 Likes on 0 Posts
Cathay SETTLES!

I don't know whose argument this will validate but, as usual, Cathay SETTLED...

I think the US pilots ought to use these lawyers for all the current labor law violations going on in the US.

Navy Pilot Settles Military Employment Dispute With Cathay - Law360

Navy Pilot Settles Military Employment Dispute With Cathay
By Jenna Ebersole

Law360, Washington (October 29, 2015, 9:37 PM ET) -- A fighter pilot with the U.S. Navy Reserve settled his suit against Cathay Pacific Airways Ltd. in California federal court on Wednesday over allegations that he was fired when his military duties allegedly interfered with his work obligations.
A judge dismissed the case, which was filed in March, on Thursday after Cathay Pacific and former pilot Joshu Osmanski notified the court of the settlement on Wednesday. Osmanski, a Navy Reserve lieutenant commander, had claimed Cathay violated his rights under the Uniformed Services Employment and Reemployment Rights Act by allegedly firing him for frequent absences for military duties.

Cathay argued that Osmanski had failed to meet qualification and training standards and failed to mitigate the damage from his departure by then allegedly breaking the law in using his uniform and credentials to bypass airport security and later pursuing dental education instead of employment.

Judge James Donato ordered on Thursday that the case be dismissed without prejudice, but details on the settlement were not immediately available.

Osmanski faced criminal charges of entering an airport area in violation of security requirements for a Jan. 26, 2013, incident in which he was allegedly wore his Cathay Pacific uniform and flight crew identification card after he was no longer employed, according to court records in that case.

Osmanski was at the Honolulu International Airport while attempting to travel to start his job as a pilot at Atlas Air, according to the filings. He received three years of probation in April.

In his original complaint against Cathay, Osmanski said the airline had skirted his rights as a service member for years before the firing by hassling him over Navy obligations, requiring him to take unpaid leave for military service and not promptly allowing him back to work following a service-related injury.

While on Navy duty in September 2011, Osmanski ejected from a malfunctioning fighter plane shortly before it crashed and exploded, according to the suit, which states he sustained serious injuries and required months of physical therapy.

In February 2012, Osmanski requested to return to work, but Cathay replied that he first had to be medically cleared, which violated USERRA, the suit says. That law requires employers to first re-employ injured veterans returning from military injuries, then determine their medical status, according to the complaint. If the veterans are unable to return to their previous jobs, the employer is supposed to be find another position for the service member, Osmanski says.

Instead, Cathay allegedly kept Osmanski on unpaid leave for the next two months before telling him in April 2012 that he was fired, according to the complaint.

Attempts to reach counsel and representatives for Cathay were unsuccessful late Thursday. An attorney for Osmanski declined to comment.

Cathay Pacific Airways Ltd. and USA Basing Ltd. are represented by Michael W. Kelly, Angela N. O’Rourke and Daniel B. Pasternak of Squire Patton Boggs LLP.

Osmanski is represented by Matthew Z. Cotty of Crotty & Son Law Firm PLLC, Stephen Robert Onstott and Thomas G. Jarrard of the Law Office of Thomas G. Jarrard, and Michael B. Love of Michael Love Law Firm PLLC.

The case is Joshu Osmanski v. Cathay Pacific Airways Ltd. and USA Basing Ltd., case number 3:15-cv-01254, in the U.S. District Court for the Northern District of California.
Oval3Holer is offline  
Old 27th Jan 2016, 01:06
  #58 (permalink)  
 
Join Date: Aug 2008
Location: Polar Route
Posts: 5
Likes: 0
Received 0 Likes on 0 Posts
All I will comment on are CX lawyers. Squire, Patton, Boggs is a top notch law firm and their advice is extremely expensive. If they advised CX to settle, it is because Osmanski had a case. This isn't the first time CX has been advised by this firm to settle in the US, and it has cost CX millions of USD. I just wish one of these cases would go to trial someday and let the chips fall where they may in a very public resolution and settlement.

CX lies, cheats, and steals. In their minds, all of that is ok as long as they don't get caught or held accountable. Ethics are completely devoid at CX. I really wish I had all these years in at a better company, but it is cheaper (I hope) to love the one you are with than to start over. Only time will tell...
cxorcist is offline  
Old 27th Jan 2016, 01:38
  #59 (permalink)  
swh

Eidolon
 
Join Date: May 2001
Location: Some hole
Posts: 2,171
Received 24 Likes on 13 Posts
Didn't CAD pull this guys licence because he failed to notify them of the injuries arising from the ejection ?

While the complaint says Cx said he was medically unfit, medicals have always been the responsibility of the pilot. It's CAD that hands out the fitness assessment.
swh is offline  
Old 27th Jan 2016, 01:52
  #60 (permalink)  
 
Join Date: Jun 2006
Location: Milky Way
Posts: 218
Likes: 0
Received 0 Likes on 0 Posts
Am I the only one that reads these seemingly weekly articles of CX being sued or settling and thinking, "there goes more of my profit share?"
BillytheKid is offline  

Thread Tools
Search this Thread

Contact Us - Archive - Advertising - Cookie Policy - Privacy Statement - Terms of Service

Copyright © 2024 MH Sub I, LLC dba Internet Brands. All rights reserved. Use of this site indicates your consent to the Terms of Use.