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Cathay sued in USA for illegal termination

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Cathay sued in USA for illegal termination

Old 19th Mar 2015, 17:44
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Cathay sued in USA for illegal termination

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.
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Old 19th Mar 2015, 18:21
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What Cathay in court again no it couldn't be.
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Old 19th Mar 2015, 18:31
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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?
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Old 19th Mar 2015, 18:43
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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.

Last edited by Shep69; 19th Mar 2015 at 18:54.
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Old 19th Mar 2015, 21:42
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Good reply Shep69.

I think Cx just finds it hard to just do the right thing!
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Old 19th Mar 2015, 22:32
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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
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Old 19th Mar 2015, 22:58
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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.
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Old 19th Mar 2015, 23:26
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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!
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Old 19th Mar 2015, 23:37
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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.
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Old 20th Mar 2015, 00:14
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Actual court document!!!!

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

https://onedrive.live.com/redir?resi...int=file%2cpdf
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Old 20th Mar 2015, 00:52
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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"!
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Old 20th Mar 2015, 01:09
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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.
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Old 20th Mar 2015, 01:51
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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.
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Old 20th Mar 2015, 02:41
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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.....
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Old 20th Mar 2015, 02:50
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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.
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Old 20th Mar 2015, 02:59
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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.
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Old 20th Mar 2015, 03:44
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Why would CX hire Americans in the future with potential military commitments? Forget about direct entry FO's in JFK....
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Old 20th Mar 2015, 03:57
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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.
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Old 20th Mar 2015, 04:00
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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.
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Old 20th Mar 2015, 05:01
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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).

Last edited by Shep69; 20th Mar 2015 at 05:21.
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