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.

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

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?

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.

Good reply Shep69.

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

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

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.

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!

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: Said in two words and far more succinctly than I.

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

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"!

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.

Yes it's the uniform guy.

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.....

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.

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.

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

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.

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.

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).

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.

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. :=

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

'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!:}

Corporal ?

Private First Class at best.

First class Douche

4 driver

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......

Just a point of order:-

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.

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 ). 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."

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:

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.

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:

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.

@BillytheKid
 

Speak for YOURSELF Mate!!!

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...

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.

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:

Its already been included in the complaint.

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.

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.

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.

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.

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: