USERRA for Pilots
In many ways, Guard and Reserve military service seem like a dream come true. I consider them to offer the Ideal (or even the Ultimate) Military Pilot Career Path. However, there’s one problem with this type of service: by definition, the Guard and Reserves are part-time jobs. This means that a Guard or Reserve pilot needs a second, full-time job that he or she leaves anytime the military comes calling. Can you see how this might cause trouble at your day-job? Thankfully a federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects your ability to take military leave from a full-time job without suffering any negative consequences.
Table of Contents
USERRA Basics
If you want, you can read the full text of USERRA in Chapter 43 of Title 38 of the United States Code. (Wear eye protection to avoid permanent gouging injuries.) Thankfully, the Department of Defense has a much more readable website about USERRA.
This law gives you three major protections:
- USERRA ensures that you aren’t “disadvantaged” in your civilian job because of your military service.
- USERRA requires your employer to let you come back to work after a period of military duty.
- USERRA prevents your employer from discriminating against you because of your military service–past, present, or future.
At the most basic level, this just says that an employer can’t fire you (or refuse to hire you in the first place) because of your military service. It also means that an employer can’t deny you promotions, vacation time, or other benefits for the same reason. These are pretty amazing protections. What other situation in life would allow you to walk away from a job for weeks or even months, and then just show up again when it’s all over and continue working as if you’d been there the whole time? USERRA is a good deal.
The government realizes that this law can inconvenience civilian employers. One of the main concessions it makes is limiting the amount of military leave an employer must allow to a maximum of five years, or the length of your initial military commitment, with some exceptions.
Five years equates to 1826 days (including one leap day) or 260 weeks. If you, as a military pilot, took one week of military leave per month, this would give you enough time for 21.7 years of part-time military service. That sounds like a lot, but remember that you’ll likely spend 2-4 years on full-time orders at the start of your military flying career if a Guard or Reserve unit sends you to UPT. If you join the Guard or Reserve after starting to work for an employer you plan to stay with for your entire career, you’ll need to take care not to exceed your limits.
Thankfully, this five-year clock is employer-specific. If you start a job at a new company, your five-year clock starts over from zero. Since some professional pilots will start at a regional or other airline before moving up to the majors, you stand a good chance of not needing to worry about this limit.
USERRA’s protections also require your employer to not penalize you for things like bonuses, profit sharing, retirement plan contributions, etc. because of your military service. At my company, this means that while I’m on military leave I receive a contribution to my 401(k) plan based on what I would have earned if I’d been flying an airline trip. I also receive a portion of our annual profit sharing plan based on the flying I would have done while on military leave. The benefits of this provision will vary depending on the benefits your employer offers.
If your employer ever gives you a hard time over your military service, you have numerous avenues to address the issue. Worst case, you could file a lawsuit. Before I tried that I’d call my airline union representative. Our unions have a vested interest in protecting us in disputes with our employers. I doubt you’ll encounter any problems here though.
Practical Applications for Professional Pilots
Although USERRA offers strong protections, it would be pretty difficult to make it work in a lot of jobs. How can a school teacher or a design engineer just disappear for a week or a month without putting an employer in a really bad position? Thankfully, this law works wonderfully for pilots.
Unless a pilot works at a very busy air taxi service or has a really cushy job in a corporate flight department, he or she probably doesn’t have the same schedule every week. We bid for schedules and fly when there’s flying to be done. A serious flying operation has to hire enough pilots to handle illness, vacations, and other staffing hiccups. It should be relatively easy to disappear for a while and then just hop back on the schedule when you’re done.
Between the FAA and your company’s rules, you may need to accomplish a simulator or flying event to re-establish currency after a period of military leave. If your airline posted an Advanced Entitlement (a bid to change aircraft, base, or seat) while you were gone, they have to allow you to take any position that you could have successfully bid for while you were gone.
In all of these cases, you should maintain open and honest lines of communication with your employer during your absence. If you’ll need training, you need to give your company enough advanced notice to get you on the schedule. The last thing you want when you get back is to sit around for a while, not getting paid, while you wait for a training slot to open up. Most companies who deal with military pilots have established procedures for all of this administrivia. The sooner you learn those systems and procedures, the easier your life will be.
We mentioned your five-year limit on military leave. If all you ever did was spend a week a month or so on military flying, you could earn a full 20-year military reserve retirement without ever having to worry about that limit. For better or worse, you’re likely to go TDY or deploy many times during a 20+ year career. Most Guard and Reserve deployments are kept short, but the Army has been known to send people for as long as 12-15 months at a time! This could result in you reaching your 5-year limit long before you accrue 20 years of service…putting your military pension at risk.
One way to avoid this is changing companies. A young pilot could start at a regional airline about the time he or she started military service. Even 2-3 years of full-time orders for training and seasoning would leave enough room for many years of part-time service. Once moving on to a major airline, that pilot would then have a new five years of military leave for use. No sweat.
My company is very military friendly and they don’t count any military service of fewer than 30 days in duration against our five-year limit. This means that (barring any deployments) it’s theoretically possible to accrue 20+ years of military service at my company without a single day counting against the limit. If this policy might be important in your situation, it would be worth asking about before you even apply to a given airline. (Note, this is not something to be asking at your interview. You need to find out about this from line pilots in your Guard/Reserve unit or through some other kind of networking.)
Some companies still give their pilots options after reaching the five-year limit. Your company may choose to just allow you to take more regular military leave. My company gives pilots the option of taking a Leave of Absence (LOA) in this case. An LOA doesn’t offer all the benefits of a military leave of absence (MLOA), but the pilot at least gets to keep his or her job. This issue should only arise if you have the opportunity to take a high-level command job within your organization. Maybe you’re up for promotion to General. I once flew with an airline captain who had been an ANG Wing Commander and was still serving. He’d spent 27 years flying the F-16 and I’m pretty sure his levels of activity went beyond USERRA’s normal 5-year limit for military leave.
How to Keep Your Employer Happy
Most companies are very good about working with military pilots. Granted, it’s easy to get on board when you have Federal law breathing down your neck, but we’re lucky to be able to have the best of both worlds. The last thing you want to do is screw things up for yourself. What’s more, the rest of us are all relying on you to not jeopardize our ability to use military leave ourselves. Although your company will never risk a lawsuit by penalizing you directly for military service, they’ll notice if you regularly put them in a bad position. I promise you don’t want to work at a company where your boss starts looking at every little thing you do–fishing for a reason to get rid of you.
Your first key to success is knowing your company’s policies with regard to military leave. Read your company’s Flight Operations Manual (or equivalent) and your contract over and over again until you have a good handle on their rules. If your company has an office for this, call or stop by. At an airline, your union definitely has a Military Affairs Committee of some kind. Read everything they’ve ever published, follow their social media feeds, and don’t hesitate to write or call if you have a question.
It should go without saying, but you must obey your company’s rules once you know them. Every pilot group has some genius who, despite knowing the correct way to do things, tries to color outside the lines without checking first. This rarely works out well, and if you’re not careful you’ll find yourself wearing diapers because of the bad decision that genius made.
It’s worth mentioning again that communication is critical here. If you work at a small company, or in a small flight department, you absolutely must give your supervisor advanced notice that you’ll be taking military leave. This gives him or her time to adjust the flying schedule for your absence. You also need to let him or her know in advance when you’ll be returning so that you can get back on the schedule.
At a larger company, including most airlines, there are probably automated procedures for “pre-posting” military leave before the monthly bidding process starts. While this helps your company, it may cause your schedule to be less than ideal. Your scheduling program will try to squeeze in trips around your military flying, leaving you fewer free days in the month, or they’ll just give you less flying overall, meaning you get paid less.
You’ll be tempted to get around this by waiting to “post” your military leave in the system until after you’ve been assigned your monthly schedule. When you post your military leave, the systems at most airlines will drop any airline trips that overlap your days of military leave. Knowing this, you could potentially plan your military duty to happen on days that will either not conflict with your airline schedule, or will conflict in ways that are advantageous to you (helping to drop trips you don’t want). This sounds like a get-out-of-jail-free card, but it’s not the way USERRA was intended to be used. Certainly, if a short-notice tasking pops up at work, it’s fine to post some military leave and go do the mission. However, repeatedly using this for your own convenience will get you in trouble. USERRA only protects you from discrimination or retaliation if you’re abiding by all the rules. If not, your company will be free to punish you…and nobody wants that.
You would think that military aviators would be smart enough to not screw this up, but sadly that’s not always the case. The most common abuses of these rules happen near holidays. If Airline X suddenly finds that its system dropped a bunch of trips for junior pilots on Christmas, the chief pilot will ask why. If, upon investigation, she finds that these trips all got dropped for mandatory training that, inexplicably, nobody knew about until schedules had already been released for the month, she’s going to start making phone calls to military commanders.
“What’s that Colonel, your people aren’t scheduled to be flying training missions on Christmas morning? That’s interesting…”
“What’s that Commander, your people knew about this training event 5 months ago? That’s interesting because they waited until two days ago to let us know about it…”
“What’s that General, Joe Pilot couldn’t have possibly been in the office doing staff work during the week of Christmas because the entire building was closed? That’s interesting…”
I wish I could say that this is unlikely to happen–that I’m exaggerating. Sadly, these are actual events that happen year after year. In any of these situations, the company has grounds to potentially take action against a pilot because he or she didn’t follow procedures, or wasn’t honest about military duty. Don’t be this guy or gal! A career at a major airline is worth several million dollars! Taking risks like this cannot possibly gain you anything so valuable in the short-term that it outweighs the loss of those lifetime earnings.
If you find yourself tasked for some no-kidding military duty on short notice, it’s not a bad idea to call your chief pilot and let him or her know that you’ll be posting some late-notice military leave. Your chief pilot may ask why, and you should give a brief explanation. In 99% of cases, this will be sufficient. Your chief pilot will say, “Have fun and fly safe!” and you can move on with life. (Frequently, that chief pilot is or was also a military aviator and will understand your dilemma all too well.) My company is so used to this that they have a form to fill out online in lieu of calling in. I’ve taken short-notice military leave both with and without using that form and never had a problem.
In a few rare cases, your chief pilot may give you a hard time about short-notice military leave. If that happens, explain that you understand his or her concerns and that you’ll check with your union rep before you post any leave. Then, call your union’s Military Affairs Committee and verify that you have a valid excuse for posting your leave late in the game. If they agree that you’re safe, post the military leave and move on. There’s probably no need to even call your chief pilot back. As long as you’re always polite and professional, you can’t go wrong by communicating.
Conclusion
USERRA is a great deal for pilots! It allows us to enjoy the fantastic Quality of Life (and money) offered by an airline career, without having to give up the things we love about military aviation and serving our country. It ensures protection from discrimination or retribution, backed by the full power of the US Government. It’s important to understand your company’s policies for abiding by the law and not abuse military leave for unjustified reasons. As long as you make sure you’re following company procedures, complying with the specifics in the law, and communicating with your boss, USERRA can enhance your career and help you earn a military retirement.
