Cathay sued in USA for illegal termination

[Not Hiding]

Navy Pilot Says Cathay Illegally Fired Him Over Military Duties

By Jacob Fischler
Law360, Washington (March 18, 2015, 5:06 PM ET) -- A fighter pilot in the U.S. Navy Reserve sued Cathay Pacific Airways Ltd. in California federal court Tuesday for allegedly firing him when his military duties interfered with his obligations to the airline, in violation of labor laws.

Joshu Osmanski, a Navy Reserve lieutenant commander, claims Cathay violated his rights under the Uniformed Services Employment and Reemployment Rights Act by firing him because of his frequent absences for military duties.

Cathay said Osmanski was fired for missing mandatory training and lying about whether his military service was voluntary, according to the complaint.

But Osmanksi says 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.

The termination was the last step in a yearslong pattern of discrimination over Osmanski’s Navy service, with Cathay beginning in early 2010 "to detest Mr. Osmanski’s military obligations," the suit says. Cathay managers on multiple occasions between 2010 and 2012 expressed frustration that his military service was interfering with his duties to the commercial airline, according to the suit.

The complaint alleges that in October 2010, a Cathay manager told Osmanski, “We have a business to run, and no government or other entity is part of any agreement that will provide an impediment to our business.”

The airline forced Osmanski to take unpaid time off in March 2011 because he missed mandatory training exercises while on military duty, according to the suit. But Cathay’s practice when employees are unable to fly because of missing such trainings — due to pregnancy or sickness, for example — is to place them on paid leave, Osmanski says.

Efforts to reach Cathay and Osmanksi were unsuccessful Wednesday.

Osmanski is represented by Stephen R. Onstot of Aleshire & Wynder LLP.

Counsel information for Cathay was unavailable Wednesday.

The case is Osmanski v. Cathay Pacific Airways Ltd. et al., case number 3:15-cv-01254, in U.S. District Court for the Northern District of California.

--Editing by Edrienne Su.

[Avinthenews]

What Cathay in court again no it couldn't be. :rolleyes:

[PBY]

interesting. Why should Cathay care that Mr Osmanski decides to work for foreign government? why could not they fire him? do the US laws have anything to do with Hongkong laws?

[Shep69]

I think, as per the Kiwi case, the company needs to realize they operate outside of the bubble of Hong Kong. Even if not formally 'onshored' (whatever that means) several developed nations have legislation which effectively onshores them if certain conditions are met (i.e. they employ a national from the nation they operate into, they station individuals via basings who are citizens or lawful permanent residents of the nations they base into, or sometimes even if they simply do trade with the country they wish to fly into).

Think of the money we'd save if we'd simply do the right thing and follow the law vice trying to assert that we can do whatever we want to do anywhere under the laws of Hong Kong.

It's kind of like someone driving really really fast in the US and claiming to the trooper that they are from a nation without a speed limit so should be able to drive as fast as they want. Doubt one would get very far with this approach.

The question here will be does the USERRA apply to foreign corporations which operate into as well as base its pilots in the US (if it follows other US legislation it probably does). From a glance of the text of it, USERRA appears to apply to foreign corporations doing business within the United States--any entity with any form of physical presence in the US which Cathay (or the respective holding company) certainly has. If it does apply, it would be advisable for the company to try to settle quickly; the US DOJ is also charged with enforcing the legislation so it might not be as simple as a civil suit if the USERRA was broken. Folks screwing around with the military and vets in the US are not well thought of.

While some tax and labor laws don't apply to foreign corporations, others very much do (depending on the nation). Getting good legal advice about this isn't particularly hard or expensive, but does sometimes result in an answer someone doesn't want to hear. One ignores this advice at one's own peril.

The STRANGE wrinkle in THIS case is I think this might have been the guy who was wearing his uniform through security after being terminated and getting in trouble with the Feds about it. So to be honest I'm not sure what to make of it.

[Frogman1484]

Good reply Shep69.

I think Cx just finds it hard to just do the right thing!
:mad:

[joblow]

I strongly dislike the company's flippant attitude to contracts and their contention that they can change them any time they feel like it.

But in this particular case I have to side with the company
They hired and paid this individual to operate the company aircraft , not to operate the company aircraft when he isn't busy flying navy jets. Perhaps the American carriers have a contract clause with exceptions for military types but we don't , so why should CX have to play second fiddle to the Navy we have nothing to do with the American Military . I respect the military immensely but this is a civil airline

[Shep69]

joeblow--because it is the law in America. If you want to operate in America you have to follow their law. If CX wishes to cease operations to and within the US it can probably avoid such an action in the future but that is not the case today. There are many things I don't like about laws as well; that doesn't mean I can break them with impunity.

There might be such stipulations for US carriers in their individual contracts but it doesn't matter. They have to follow the USERRA and if the contractural provisions diverge from this (or aren't there) the act is enforced anyway. Doesn't matter what either of us think is right or wrong.

The only real questions which will be decided in this case will be can the law be enforced on a foreign employer in the US, and did a violation of the USERRA occur--anything in his CX contract is irrelevant along these lines.

[Pogie]

Isn't this the same knucklehead that got caught using his CX uniform and I.D. (long after being fired, I might add) to get through airport security in Honolulu a while back?

I'm almost positive that it is. He was working for another carrier at the time, too (like Atlas or Polar). He couldn't wear his current and legal uniform to do that?

I don't give a crap about CX, but that moron should be in prison painting sausages brown and shouldn't be suing anyone. Opportunistic loser!

[LongTimeInCX]

Playing devils advocate, can you image an American working for Korean Air saying he needs a couple of weeks off to fulfil his US Navy Reserve duties?
Most of know how that would go with the gooks of Hazard!

But as Jeremy Clarkson quips "some would say, that Osmanski was based in the States". But as we also know, it's not onshored, it's ostensibly a HongKong contract, and again WE know from bitter past experience, if an aspect (ie defence reserve duty) is not in you're contract, you've got bugger all chance of claiming you're entitled to it. He knew that when he joined, so to crap on now is disingenuous at best. The cynic would say he's just claiming the 'poor old me' case to make up for a) getting terminated and b) getting in the shiite with TSA/FAA for bypassing security at Honolulu wearing his CX uniform, after he'd been sacked.

Incidentally, I thought he was due to be sentenced Feb or Mar for the above issue? Anybody been stalking the US papers to find out if he was fined/jailed?

Based he may have been, but it's a Hong Kong Company and he was on a Hong Kong contract. That he may have been based would have been more for the Company's $$ savings scheme than his convenience.

So on balance, I'm with the Company on this one.
Standing by for incoming from all the seppo's who think they actually work for a US company just because they're based there.

Pogie: Opportunistic loser! Said in two words and far more succinctly than I.

[ColonelAngus]

I find this court document online. Lots of Cathay managers named and some interesting emails too!

https://onedrive.live.com/redir?resid=34C257FB7840BC8!108&authkey=!AMKpD08MANlEUdQ&ithint=file%2cpdf

[Popgun]

It will be interesting to see if the court decides he works for a HK company...or whether it rules he works for a US company due to the US basing, and therefore, the USERRA law applies to his situation.

I'm guessing the latter...in which case Cathay will be served a nice little wake-up slap of "our country, our rules"!

[Sailvi767]

Cathay is going to pay a lot of money to settle this. There are a couple of things you don't mess with as a employer. Number 1 would be military reserve obligations.

[Avinthenews]

Yes it's the uniform guy.

HONOLULU – Joshu Osmanski pleaded guilty Friday in U.S. District Court to unlawfully entering the secure area of Honolulu International Airport.
The former Hawaii resident who now lives in Louisiana was a pilot with Cathay Pacific Airlines until July 2012. He also was a military veteran and served in the Navy Reserves with honor and distinction, according to court records.
But six months after his employment ended with the Hong Kong-based airlines, the father of four children went through airport security at the Honolulu International Airport dressed in his former employer’s pilot uniform. He used his pilot identification and airport security badge to bypass screening.
Osmanski was caught following a tip from a woman who had been living with him on his boat at Kewalo Basin. Earlier he had a fallout with the woman and told local police she'd stolen his property, according to a court transcript.

[Just Do It]

The line check has always been a tool for the company to erase a problem. I will never forget "Dead Man Walking", it was like a scene out of "Platoon", he just kept running out of the trees with his arms reached out for the Helicopter and the bullets just kept on flying in to his back. 3 line checks later and the management check finally nailed him on the outbound sector. He was offered the return sector as training or he had the option to PX back. He chose to PX.....return sector was delayed! I will never forget his final words "they had two letters waiting for me when I got back" Resign or be fired....3 months salary had something to with it!

So don't read to much in to someones training file in this place! As for remedial training, the street is littered with memories of individuals who have been down that path!

I'm not endorsing this guy but lets keep the fight clean.....

[Trafalgar]

Reading the court documents, I think CX has managed to violate one of the most sacrosanct tenants of American life: "don't mess with the military or it's special place in American life". I suspect this will be an unpleasant experience for the managers involved, and will cost CX many $$. The potential for bad publicity is far worse than the actual $ involved. This won't end well.

[Shep69]

I have no idea if the guy's a hero or dirtbag or anything in between.

BUT I do know that the case will come down to 2 things:

1. Does the USERRA apply to a foreign corporation who operates and stations people in the US (the USERRA isn't alone in this regard; there are many other US laws which are very similar to this one and specify foreign corporations which touch US soil or operate and/or have personnel in the US--regardless of where their contract is from or even the terms of their contract. In fact, the whole 'onshoring' thing is a bit of a farce in that in terms of some legislation it doesn't matter. And this would apply to anyone; whether it's CX, Malaysian Air, Air China, Air India, or Korean Air).

2. Was the USERRA violated ? (the complaint looks pretty damning and based on the track record is probably correct; I can't help but think of how bad some of the OTHER statements made about other matters would look in a courtroom outside of Hong Kong--it seems some folks miss a good opportunity to keep silent on issues from time to time).

If a jury believes the answer to both these questions is yes, CX will take a bath. The complaint also implies punitive damages (to add further injury to insult the entire process is overseen by the USDOJ which can pick it up and run with it levying ADDITIONAL fines and penalties on top of the civil case if it feels the situation warrants it). And loss of CX money also comes out of the pockets of those who work there. The thing that concerns me is the arrogance involved in thinking one can ignore the laws of nations CX operates into with impunity because this is not usually the case.

I don't know how this will be played, but even if I was Perry Mason I'd shudder at trying to defend an "Evil Big Foreign Chinese Company that behaved badly" against a decorated and injured on duty US war vet in uniform (not saying this is the case at all but I think it could be played that way) in front of a sympathetic California jury.

[4 driver]

Why would CX hire Americans in the future with potential military commitments? Forget about direct entry FO's in JFK....

[anotherbusdriver]

Reading that court document made me smile.

I love a good bully comeuppance story.

DL getting sent to the naughty corner by the Commanding Officer, just made my day.

[Progress Wanchai]

Once again good old cx demonstrates its ability to walk and chew gum by falling flat on its face.

JO is dismissed for "no particular reason" on his official termination letter.
Then months later cx tells an FBI investigator he was dismissed for performance and attitude issues.

If history is any guide the next step is perjury on the stand.

[Shep69]

I found the use of the TSA incident in the complaint very surprising (in that it could cast a negative light on the individual's integrity and is frankly bizarre) because it was subsequent to the termination and could have been easily excluded for several reasons during the trial.

But I guess some incriminating statements made to an FBI Agent (which would have extremely strong credibility) outweighed having to explain why it happened in the first place. Must've been too much of a gift to the case they decided to throw it in.

I'd be REALLY surprised if anyone would attempt perjury and very much hope it doesn't happen for the sake of the individuals involved; it's hard to enjoy one's bonus when doing 10 to 20 years in Club Fed. It's unwise to underestimate how aggressive stuff like that's pursued in the US; especially when attempted by amateurs. There are several Illinois governors and Congressmen with significant slammer time--having found out paper crimes like this have a lot of teeth and are pretty easy to prosecute (especially for ambitious prosecutors).

[Avius]

I'm not trying to take sides here, but to be fair, there are also other Americans at CX with military obligations and arrangements. I doubt though, that they give 1 single day notice to CX, when they are called for duty. I could be wrong, but I doubt it.

As with everything in life, there is a way and there is (another) way. The way these things are handled matters a great deal. It is not entirely unimaginable that undesired trips on the roster could be opportunistically "adjusted" citing the protections afforded under USERRA. That of course would be wrong. Again - I'm just trying to be objective. The fact, that JO has used the CX ID and uniform in Hawaii, long after leaving CX, does not increase his credibility as a person.

On the other hand, if someone makes it all the way to become an F/A-18 pilot with documented missions in Iraq, they have proven themselves many times over as an aviator and clearly know how to fly a jet. Certainly more than good enough to "fly rubber dog.... out of Hong Kong".

The failed line check does look rather suspicious. Clearly, there might be two sides to the story, but discrediting one's professional achievements as a disciplinary measure - by "failing" a line check, etc. has been a vile habit CX has used in the past. So wrong on many levels.

If it turns out, that this was the case with JO, then it may prove to be very expensive for CX indeed. In this business, it is one thing to have made mistakes as an employee and a whole another to have made mistakes as a pilot.


If someone is a bad employee, the company has every right to let them go, but then let them unmistakably know, that that is the reason for them being let go. This gives them a chance to learn from mistakes and begin afresh elsewhere.

However, discrediting them professionally would be dirty, unfair, unethical and unnecessary.

Not sure much will come out of this law suit in the end.

[Frogman1484]

Quoting a line check result 2 years prior to the dismissal, as the reason for dismissal, with be a bit hard to slip past a judge. :=

[betpump5]

From the CO to DL

" ......I do not know what nation or service you served for but under US Law, all military members have rights and you are stepping very close to violating his rights.....
....Below I have attached some "USERRA for Dummies"

Yeah B!tch!!!!

Hooyah

[Arfur Dent]

'After the fact termination justification typical of the discriminator.'
Cathay Staff (ie Corporal Lomax) out of their depth once again when faced with a quite obvious obligation that they blatantly didn't understand. The letter from the Squadron Boss enclosing the book 'USERRA FOR DUMMIES' just about says it all.
I would suggest that the Managers responsible directly for what will be a huge penalty should be called to account. They won't be - they never are for some unknown reason ( probably as basic as losing face).
How could our Managers act in such a crass and amateurish way? When will they learn? This is bloody embarrassing!:}

[betpump5]

Corporal ?

Private First Class at best.

First class Douche

[positionalpor]

4 driver

Why would CX hire Americans in the future with potential military commitments? Forget about direct entry FO's in JFK....

I don't think many American pilots would apply to CX at the current stage.
Its reputation isn't the most pristine in that part of the world.
Regarding line checks, "Just do it" is right. CX has used this "trick" to terminate the unwanted far too many times.
Those phantomatic line checks are just a set up to abbreviate a dismissal and give it a plausible reason. Then the infamous letters comes.
You can manage an FMC, a descent, an MCP well. That doesn't mean you are good at managing peoples......

[White None]

Just a point of order:-

if someone makes it all the way to become an F/A-18 pilot with documented missions in Iraq, they have proven themselves many times over as an aviator and clearly know how to fly a jet. Certainly more than good enough to "fly rubber dog.... out of Hong Kong"

Don't agree - shows that one certainly has the potential ability do the Airline Job, but doesn't mean you can walk in with Zero effort or prep and pass a course or line check. Ask any Ex-Mil guy who's not a bull****ter and they'll concur.

[swh]

The whole thing sounds a bit odd. Takes on a second job, fair enough, gets injured on that job, why is the second employer not paying for his downtime ?

I actually see a lot of holes in his case, paras 34, 25, and 30 come to mind. Failing to inform CAD (not CX) of a medical issue (look at the timeline) is reason for the CAD to cancel a licence. The AVMED doctors assessing fitness to return to flying are delegates of the CAD. Did the also inform the FAA that they were medically unfit ? They pull certificates pretty quickly as well for not following their rules.

There is also the slight matter of CAD and flying aircraft above 1600 kg. Did they obtain the appropriate approvals ? and keep the appropriate records ?

While they are pushing for unfair dismissal based upon USERRA, did his actions breech the HK ANOs prior to termination ? He has passed a HK Air law exam, and has his own personal obligations under the ANOs when unfit.

Interesting reading an FAQ on this ( Military Leave Requirements Under USERRA (http://ppspublishers.com/articles/USERRA.htm) ). CX apparently only had to give him unpaid leave, para 23 of his complaint said CX were supposed to give him paid leave. And he had to pay CX medical coverage while he was on leave, did he ?

6. Do we have to pay employees on military leave?

No. USERRA only requires unpaid time off. The military generally pays its activated members. Employers often provide pay for at least a limited period of time, in recognition of the duty the employees are fulfilling and because military pay is often much less than the employee’s normal wages. Many employers also allow employees to use any accrued vacation during military leave, although you may not require employees to use vacation. Note, however, that the Fair Labor Standards Act requires that exempt employees who take military leave and work for the employer in the same week must be paid for the entire week in order to maintain the exempt status.

7. How are health care benefits covered during military leave?

USERRA requires employers to allow any employee on a military leave to elect and pay for continuation of coverage for himself and dependents under any health care plan provided in connection with employment. This coverage ends after 18 months or, if earlier, on the date the veteran fails to return or apply for return to employment as required. (See Return to work requirements.) The person electing this coverage may be required to pay up to 102% of the full premium associated with coverage for other employees. If the period of service is less than 31 days, the employer must continue health insurance as if the person is actively employed, and the person may be required to pay only the regular employee share of the premium.

If the coverage is terminated while the employee is on a military leave (either because the employee elects not to continue the coverage, because the period of service exceeds 18 months, or for any other reason), the employee and his dependents may not be subject to waiting periods or preexisting condition exclusions upon reinstatement.

The other small issue is returning to work. I see no mention of the certificate showing satisfactory completion of military service, I see he asked to return to work, but did he supply the certificate ? That certificate is required before an employer would be obliged to return him to work. Was it obtained, was it provided to the employer ?

From what is written in the complaint, he was not disabled when he asked to return to work, he was still recovering from an illness or injury that was incurred in or aggravated by the period of service. It would seem then he was actually still in military service.

It would seem that the whole time he was in the reserves, and recovering from injury, he should have been on unpaid leave, according to the FAQ above. Why should he be on CX sick leave for an injury from a second employer ?

I am not condoning either sides actions, para 56 sums it up nicely, "No one is perfect and Mr. X is no exception to that rule."

[Tankengine]

If this goes badly for CX I would suggest that when the dust settles they may simply cancel all US bases and return pilots to HK base.
I doubt the US pilots would be happy with that.:ugh:

[BillytheKid]

I think some of us on this forum might be carrying in some anti-American military sentiment with this issue. Regardless of your politics, it appears that CX managers have again disregarded laws that may be applicable. They did so not because they felt they were just, but because they were CX and that is how it has always been done.

[Frogman1484]

It does not matter that the pilot was a dick...the law is the law!:ok:

DL is seriously out of his depths when it comes to labour law. He is also the guy that triggered the 64 years of long service leave in Australia when he choose not to consider the Australian labour law!:mad::ugh:

[LongTimeInCX]

According to previous news a few months ago, Osmanski "pleaded guilty Friday in federal court to unlawfully entering the secure area of an airport".

The report went on to say "Osmanski faces a maximum of 10 years in prison when he's sentenced in February. He also faces a maximum fine of $250,000."
So as Feb has been and gone, what did he get at sentencing? Or did he give them one days notice and cut that line too?

It would be fitting if he happened to be currently serving time at the Honolulu Federal Detention Centre, which if you get the luxury suite, ironically looks out over the airport.

Most unbecoming actions and behaviour for an ex Naval Officer, the USN hierarchy must shake their collective heads at such douchebaggery.

[White None]

I think some of us on this forum might be carrying in some anti-American military sentiment

Speak for YOURSELF Mate!!!

[A3301FD]

Did he lie about his commitment being voluntary though?

If one is a Reservist prior to joining CX, you are obliged to disclose it and give details about when and where military duties are to take place. If subsequently called up to save goats from ISIS, CX still has to release said officer to those duties.

If he lied about it...or subsequently joined the reserves after joining CX, then thats down to him, and CX will resort to all kinds of goat****ery to impede his military duties.

Sounds like he has not helped his case though...

[Shep69]

I think some people are missing the point. This has little to do with what armchair quarterbacks think about right and wrong. Regardless of what one might think of the individual's character or motivations, or events that happened subsequent to his termination (which would normally be excluded from the evidence in the trial anyway; bringing them up in the complaint complicates this) it is the reaction of the company which is problematic. If the complaint is accurate, rather than research their duties and rights under the act, they apparently chose to disregard and violate it. In addition, they made numerous statements along the way (statements that did not have to be made at all) which apparently showed a strong willingness to violate the law--and formed the basis for a wrongful termination claim . Whether this was due to ignorance, arrogance, a combination of the two, or something else entirely no one knows. What it did result in was a paper trail of fairly strong evidence which is now being used to drag the company into a lawsuit it must spend money to defend, and if the complaint is accurate stands an excellent chance of losing. This isn't the first time something like this has happened and it would be nice if they would learn from their errors.

[Arfur Dent]

I suggest if one looks at history (Amsterdam and Paris Bases), it will be something to do with "ignorance and arrogance".
Wasn't it Einstein who defined stupidity as 'repeatedly carrying out the same actions in similar situations and expecting a different result' (something like that but you get my meaning).
As I said before, CX Managers and that Basings Office need to do a bit of pre- test study. Read the Vol 8 Corporal! It's the same PC every time FFS!!!!!:mad:

[swh]

which would normally be excluded from the evidence in the trial anyway

Its already been included in the complaint.

If the complaint is accurate, rather than research their duties and rights under the act, they apparently chose to disregard and violate it.

That is the question, it is a big if, keep in mind this has already been investigated by the US Department of Labor with no adverse result. They are not only taking on the ex-employer, they have asked for congress to look into the Dept of Labor.

Something does not add up here.

formed the basis for a wrongful termination claim

If they for example breached the ANOs with the long term sick status, it can hardly be "wrongful". The "ignorance, arrogance, a combination of the two, or something else entirely no one knows" could be on either side.

I disagree that CX should be paying for his sick leave for an injury he incurred whilst employed under second job. In their complaint it would appear he has failed to provide CX with documents which would "activate" rights.

I saw nothing in the complaint they supplied CX with the correct documentation to "activate" his rights for reemployment, reading between the lines he was still recovering on the US Navy dime from his injury, and therefore still active military service.

This DOL guide says nothing about the employer having to reemploy someone on sick leave http://www.dol.gov/vets/whatsnew/uguide.pdf

I agree the complaint sounds damming, that the role of the lawyer, does not mean it will stick or it is accurate. The smell test of the US Department of Labor washing their hands of it says a lot in my view.

[PBY]

I think some of us on this forum might be carrying in some anti-American military sentiment with this issue.

I think it is true. There might be a reason for this sentiment. The us forces force themselves on the whole world. The US banks force themselves on the whole world. The US lawyers force themselves on the whole world. I know I might not be popular with some on the forum with his comment and on top of that English is not my first language. But what I am trying to say is, that who suffers because of all of this is the american people. The banks around the world do not want regular people with american passports as their clients, because it is not worth the huge amount of paperwork and the increased risk of making a mistake and the huge fine associated with it. Now the american pilots will become second class citizens outside the us, as I cannot imagine I would be willing to have my employee go and fly jets when I need him to work. On top of that I am not even stressing the moral issue of supporting so many wars all over the
world. And before you start fighting my coments, please realise, that your fight does not help in removing the anti-american sentiment. It might only help you in the us, if you have a good lawyer. But the anti-american sentiment is unfortunately a fact in most parts of the world. But do not confuse it as a sentiment against the american people. I like the american people, but I despise the imperial american moods in small part of the population, which is unfortunately represented in the ruling class and some agressive military thinking, where the means justify the cause.

[Just Do It]

All I know dude, is that if it wasn't for the Americans and the British Commonwealth I would be speaking either German or Japanese.

[freightdoggiedog]

Hey, objectively if it weren't for the Russians we'd be speaking German all over Europe... doesn't mean you have to agree with everything that :mad: Putin does (I sure as hell don't!)

Similarly, we owe the US a great deal in keeping us from all speaking Russian in Europe! And relatively safe from ISIL in the present. But that doesn't mean we have to be happy with the arrogant imperialist attitudes their administrations are often guilty of (Iraqi invasion to name but a recent example).

To get back on topic, would a US company allow a foreigner with a green card to return to his country every time he was called up for reservist duty? (not a rhetorical question, I really don't know)

How would a US corporation react if a foreign tax service demanded that the names of all their citizens in the employ of that corporation be turned over to said foreign tax authority, and that from now on a portion of their paycheck be witheld for tax?

:ugh:

[ANCPER]

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.

[Genghis the Engineer]

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. (http://airsoc.com/articles/view/id/5524984c3139448e608b456a/pilot-now-tulane-university-student-who-wore-uniform-to-cut-security-line-sues-airline?ev=10&evp=tl&utm_source=Users+P&utm_campaign=091a9f5d89-Users+P+newsletter+Apr+8&utm_medium=email&utm_term=0_0ae31ecd6c-091a9f5d89-4450485)

[swh]

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 ?

[Basil]

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.

[HardRock]

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.

[RRAAMJET]

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....

[Will fly for Cash]

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.

[LongTimeInCX]

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.

[swh]

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 (http://www.napil.com/PersonalInjuryCaseLawDetail32200/Page7.htm)

[BillytheKid]

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.

[Shep69]

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.

[ANCPER]

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.

[swh]

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.

[BillytheKid]

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.'.

[Shep69]

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.

[ANCPER]

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.

[Oval3Holer]

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 (http://www.law360.com/articles/720958/navy-pilot-settles-military-employment-dispute-with-cathay)

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.

[cxorcist]

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...

[swh]

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.

[BillytheKid]

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?"

[A3301FD]

Cathay violated USERRA and this would have overridden notification to CAD I suspect. This case was about unfair dismissal under US Labour Law and the rules pertaining to reserve military duties.

Clearly this individual acted like a complete muppet for trying to go through security in a uniform for a company that no longer employed him - that is a separate issue.

Hopefully the settlement was in his favour.

The disgraceful behaviour of CX/KA will continue - it is part of their daily business operating plan. It's ops normal. CC for life.

[swh]

1Fd

It is always the licence holders responsibility to notify the regulator, same for the FAA and HKCAD.

Sorry this muppet sounds like he is from the generation that takes no responsibility and dishes out blame everywhere.

Nowhere in the complaint does he say he had notified the FAA or CAD. It also does not mention what he agreed to in his CoS.

http://www.hkatc.gov.hk/HK_AIP/aic/AIC15-09.pdf

It is not the company that assess you fit to fly, it is a CAD medical examiner.

Did the FAA pull his certificate as well for failing to notify them? Why does he no longer work for Atlas ?

Two big airlines got it wrong ?

Sure CX should have done things better, but this guy only wants the rules that benifit him to be followed. No personal responsibility.

[Loopdeloop]

I would think the settlement was substantial. Cathay Pacific would be prepared to pay a lot of money not to have their name dragged through court and the press as a company not doing the right thing by an injured vet, however near or far from the truth that may be.

[Anotherday]

I'll take a guess why CX want a JFK base.

Because North America is their most profitable destination by a country mile and when you have that many flights operating daily to the east coast economies of scale show a base is a no brainer. And way less BS hassles than the Aussie basses.

Like the part about 3 line checks, we'll keep going until you fail enough that we can fire you.......Thought he'd have also been given an impromptu PA (performance assessment) in the sim, that's always been a good firing tool.

[Shutterbug]

Win on the CX case and 3 months probation on the uniform charge. Nice going JO :ok:

Join a vet support group and get straightened out bro. And good luck with your future endeavors!!

[I'mbatman]

Well this sure was a fun read....don't underestimate the vindictiveness of the 3rd floor.

http://crottyandson.com/wp-content/uploads/2015/05/ECF-043-1-Crotty-Declaration-re-Motion-to-Amend.pdf

[Oval3Holer]

Great stuff, Batman. Despite the statements in that document, Cathay settled. What a deplorable organization.

[falconeasydriver]

Thanks Batman, what an interesting read, and what a disturbing look at a deplorable chain of events. Modern management sociopaths, who through their own actions it would seem have cost their employer a pretty penny. Latte's all round?

[swh]

don't underestimate the vindictiveness of the 3rd floor.


Those documents raise more questions.

The US consulate defense attache in HKG is telling the company to terminate him, and that he is being investigated by JAG in Tokyo for alleged fraud against the USN. And the company has the support of the US Government to dismiss him.

Make the settlement idea totally different scenario.

[4 driver]

Why would CX ever hire an American again with potential Military commitments?

[Strewth]

swh
Make the settlement idea totally different scenario.

Totally, are you suggesting OLA, USCG HKSAR or JAG. COMFORNAVJAPAN seems to have clarified the situation somewhat.

4 driver
§ 4311. Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

[swh]

Why would CX ever hire an American again with potential Military commitments?

Now we have heard the other side of the story, I dont think they would mind at all. The company seemed to have opened up the lines of communication with the consulate in HKG. I dont think anyone would get away with abusing the system again.

Totally, are you suggesting OLA, USCG HKSAR or JAG. COMFORNAVJAPAN seems to have clarified the situation somewhat.

Just reading what is included

"Dan King, the USAF Liaison Officer of the Office of Liaison Administration (OLA) at the USCG here in the HKSAR has advised that FO Osmanski's conduct is a flagrant misuse of the USERRA, which requires a reservist to contact his employer and return within a reasonable period of time."

"The OLA has discussed FO Osmanksi's case with the de facto Defence Attache, Captain Butterfield USN. Per advice from OLA, Captain Butterfield has determined that CX may terminate FO Osmanski with prejudice. The OLA has now referred the matter to the Judge Advocate General (JAG) in Japan & Washington"

"The OLA, has tried without success to contact the Commanding Officer (CO) at Strike Fighter Squadron 204 from NAS New Orleans."

That is the guy that sent the "USERRA for dummies" document to CX. He not longer holds that post.

"The OLA has written to the CO, setting out Osmanski's obligations under the USERRA & also advising that the determination of Captain Butterfield is that CX can proceed to fire Osmanski on account of flagrant misuse of the USERRA."

We only heard one side of the story, now we hear the other side where the US defense attache in HKG is saying to fire the pilot. You would look pretty silly in court trying to sue a company for the breach of USERRA when the USN is saying "flagrant misuse of the USERRA" and fire him.

[Big Picture]

I heard that he got bugger all in the settlement. Might have covered his legal costs but that's about it. Reading through the court documents, if I was the applicants counsel I'm not sure I'd want to run this one. Looks like they advised him to take what was on offer, shut up and move on. In my humble view that was sound advice.


Interesting that the applicant didn't want the circumstances leading to the F-18 accident discussed in the case. I wonder why.......?


But yes, not sure we will see too many US ex-military pilots being recruited going forward.

[Tankengine]

Strewth,
I presume the #4311 you quote is from some US document?:confused:
You might be suprised to learn that CX is a Hong Kong based company,
so military service with the Chinese Army might be OK but I wouldn't count on much leeway anywhere else!:ugh::hmm:

[Arfur Dent]

Fairly important to read Batman's 50 pages. They describe what will happen to you if you fall foul of your 'Leaders'. They will collectively screw you and spit you out. Shame that this guy decided to abuse his old CX uniform/ID - makes him look a bit of a dick.
DFO and Chief Training Officer(????) D Lomax comes out of it well doesn't he??? Mr Herbert (who got some of his own medicine) also seemed way out of his depth.
Cathay uses its' "war chest" (i.e. your profit share) all the time to defend its stupid ignorant behaviour around the world.
UK, France,US, HK etc etc - where next?
We carry on saving 100Kgs of fuel here and there while they hedge it out of the window without a care in the world.
To your bonus - always has been. I'm only jealous.:{

[BlunderBus]

"A constant underachiever who was
struggling with the training"

a 'brilliant' observation from an unqualified ******** who was himself "chopped"

They have no loyalty to themselves either it seems

[cxorcist]

Few points:

1) When CX employs labor in the US, they are legally obligated to abide by the laws in the US. That includes USERRA. It does not matter one iota that CX is a Hong Kong company.

2) Wrt hiring future US military, I highly doubt there are many applicants as there are plenty of proper jobs in the US. Besides, CX has shown a strong preference towards young, spikey haired office workers over actual pilots with meaningful experience. That alone discludes all US military pilots.

3) The circumstances of the FA-18 ejection are totally irrelevant to this case. That is confidential information shared at the discretion of the US Navy. That said, I'm sure flying ****ty, unstable freighter rosters didn't help the pilot avoid circumstances leading up to the ejection. I certainly would not want to be flying fast jets based on my fatigue levels most days.

[Tankengine]

Cxorcist, do CX employ any Pilots in the USA?
I thought they employed them all in Hong Kong and some are rostered (based) out of the USA.:confused:
Perhaps like EK they may prefer to keep everyone in home base if it gets too hard.:ouch:

[cxorcist]

US based pilots are employed by CPA Ltd. - US branch located in San Francisco, CA. It's no different than Lloyds of London employing personnel in US offices. There are a few peculiarities wrt foreign registered aircraft, but the employment rules are essentially no different to those of a US registered carrier in terms of labor law and unionization. There are certainly no exceptions for USERRA, and there never has been. CPA will be held to American legal standards in every respect going forward. If they don't want to abide by those, they should close the base and move all the pilots to Hong Kong on full expat terms.

[Big Picture]

Cxorcist your 3rd point is incorrect. If I was CX's lawyers in court and could prove for example that the applicant wrote off a $40 Million dollar F/A-18 by breaking a flight order or by contravening a flight limitation, therefore proving negligence, I would definitely use that to discredit the witness and reduce liability.


Its all about building a case.

[cxorcist]

And you think the US Navy is going to release the results of its investigation to CX lawyers... Oceanfront property to sell you in Arizona...

[Steve the Pirate]

I think the details of the ejection referred to in the complaint are a matter of public record now that the date was specified by the plaintiff's lawyers. In paragraph 31 on page 9 of the complaint, the lawyers specify the date of the ejection (13 Sep 2011) and the US Navy "Mishap Stats FY11" lists the event, which took place at NAS Fallon. The report states:

13 Sep 2011: (Fallon, NV) An F-18 departed the runway on landing, pilot ejected and was recovered with minor injuries.

The Times-Picayune news has the following articles about the accident:

New Orleans-based Navy fighter pilot slightly injured in Nevada crash | NOLA.com (http://www.nola.com/military/index.ssf/2011/09/new_orleans-based_navy_fighter.html)

Ten years after a near miss, the Navy's River Rattlers still rattling windows at Belle Chasse | NOLA.com (http://www.nola.com/military/index.ssf/2013/09/ten_years_after_a_near-miss_th.html)

I'm not sure whether the Navy released the full details of the investigation to the press but the newspaper report did mention the Freedom of Information Act, so maybe they did.

I'm not trying to draw conclusions but simply stating that the circumstances surrounding the accident are a matter of public record - thanks to the plaintiff's lawyers.

STP

[Big Picture]

Cxorcist,
I have been trying in vain to lead you by the hand on this. I am not from the US nor do I have a security clearance but I know all about the incident. If I know then you can bet your bottom dollar that CX does!

[Glass Half Empty]

I guess we can understand why manager Basings was moved on. Quite vindictive with regard to denying him leave etc. Hope his new employers appreciate they have a real class act in their midst .

[Shep69]

Interesting thoughts by some who know the US legal system, and some that have ZERO knowledge of it.

Although many of us would agree the case could have had a more stellar plaintiff in terms of things occurring after his employment, this has zero bearing on the alleged violation of USERRA, save that information was discovered during the subsequent investigation by the FBI which was useful to the plaintiff later.

Regarding the pilot's ejection, it doesn't matter what CX knows or doesn't know when it comes to USERRA. In actual fact, there would have been two separate boards convened; a safety (mishap) investigation board and an accident investigation board. The former is solely for mishap prevention and would contain privileged information (on the equivalent level of attorney/client privilege) which would not be able to be released to the general public or used in a court of law (and is for official use only; as such would not generally be available under a FOIA request).

Mishap prevention board conclusions and findings cannot ever be used for punitive action.

The OTHER board which would potentially have been convened is the accident investigation board. This is a military legal proceeding and in general cannot access the safety board's information or use it in ITS proceeding. It is an independent legal investigation and can be used for punitive action by the service if the service believes it warranted. Results of this can be released to the general public in some form or accessed through a FOIA.

Whether or not AIB information could be used in litigation would be up to the lawyers.

Neither has any bearing whatsoever on the alleged incident. Nor does some attache's or mid level officer's opinion (in fact were I in that position I'd be VERY careful issuing opinions to an outside entity). Depending on how one does it this in and of itself could further substantiate a USERRA violation charge as well as subject all parties involved to further legal action by breaking OTHER US laws.

Nor does injury while in the service allow an employer to terminate an employee (even if due to the injury he or she becomes unable to perform the job he or she was hired to do). Under USERRA, the employer must re-employ the individual and make reasonable efforts to accommodate the disability, make reasonable efforts to have him become requalified in his former position (while re-employing the individual in an equivalent position of seniority and pay), or if the individual is not able to become requalified for the job offer the individual a job which as closely approximates his former job in terms of seniority and pay as practical. Key point being it cannot fire him.

In actuality, the military really has nothing to do with adjudicating a USERRA charge (save that the member/veteran is in the service and in potentially providing supporting information on his or her service to be used by the DOL). The complaint is processed by the US department of labor which is a separate entity and ultimately decided in a US courtroom. The extent to which the government gets involved depends solely on their desire to pick up the case (and it's not outside the realm of possibilities that IT would intervene toward an employer who was violating USERRA if the violation were egregious enough); the potential plaintiff never loses the right to go out on his or her own and take it to a US court.

US law is its own animal completely different from anything on the planet. Non pertinent information can--and will--be excluded by the lawyers arguing the case at trial. In general, only evidence directly relevant to the complaint itself can be submitted, and anything irrelevant to the charge and/or obtained by questionable sources or circumstances won't be allowed in at all.

Fr' instance--although criminal law is different somewhat from civil law, in the case of the Treyvon Martin shooting, ALL evidence of Martin's criminal history, alleged drug use, misbehavior at school, gang-related postings on the internet, past incidents, etc. were excluded from the trial (which would greatly have helped the defense although they won anyway). This was because they were ruled not relevant to Zimmerman's decision to use deadly force to defend himself and what was going through HIS mind at the time.

Stuff like this is pretty typical in trials in the US. So in this case, the only thing a jury would see is that evidence which specifically addressed the charge itself (on both sides). Heresay, opinions by third parties not qualified to render it, second hand information, monday morning quarterbacking, etc. would never make it in.

BP--apparently your 'know all about' the incident may not be as much as you think it is. If it was, you'd ALSO know that not recruiting (or selectively discriminating against) people who have served or are serving violates USERRA as well.

Bottom line is there are significant legal protections for workers of companies which operate in (or into) the US and one ignores these at one's own peril.

[cxorcist]

Thank you Shep. Exactly correct. 100%. I scoff at the Company muppets who think they know something and can justify CX's behavior with it. It doesn't matter if Osmanski was the worst CX employee ever and/or a horrible FA-18 pilot. It doesn't matter if he pranged a Hornet or wore his old CX uniform through security in Honolulu. The only thing that matters is that CX did not follow the law. They are culpable for their behavior towards Osmanski regardless of his "trouble with training" or "abuse" of military leave. CX settled because they screwed up, again. Have you ever seen a Company be sued by their employees as much as CX? I haven't. They have to hold some type of record for worst employer ever wrt abiding with the law. Why would anyone defend them unless being paid well to do so?

Btw, rumor is that the CAD is coming down hard on CX wrt O days. That would be a first. De facto reserve post pattern may well go away. Ha, Contract Compliance starts looking much beefier when you get rid of O days. Choke on that AT...

[Big Picture]

Shep69, ever heard of "he who protest to much"?

Cxorcist. I'll pass on the Arizona water front property option but it looks like you bought a few acres of rice paddy in Thailand!

Previous posts of mine have been critical of the company. Not this time.

Happy new year.

[Strewth]

swh

I find Lt Col, USAF 3rd May 2012 email to the OSD, viewed impartially rather interesting, without doubt skilfully written, potentially defensive possibly a reversal ultimately leaving more questions than answers. Interesting that it states no legal advice to CX.

Having skimmed the document I get a sense of guns going of in holsters, carts and horses. Unfortunate it took wiser heads to knock it off and in stark contrast to their predecessors, excluding the plaintiff of course.

"There is nothing either good or bad but thinking makes it so."
William Shakespeare