Vague Wording of CBA Dooms Employer’s Attempts to Compel Arbitration

By Rosemarie Lally, J.D. July 20, 2021
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airplane pilot

​A pilot's claims that his employer violated his rights under the Family and Medical Leave Act (FMLA) were properly considered in a jury trial rather than through arbitration because a collective bargaining agreement (CBA) failed to explicitly state that FMLA claims could only be brought in arbitration, a federal appeals court ruled.

The pilot, who worked for a commercial airline, learned he had Type 2 diabetes on June 2, 2014. His employer's policy required an employee with knowledge of the need to take FMLA leave to notify the human resources department—which the employer did not have at the time—"as soon as practicable," defined as "the same or next business day."

The pilot, not fully understanding what a diabetes diagnosis meant, was scheduled to meet a Federal Aviation Administration (FAA) medical examiner and a diabetes specialist June 10 to learn more. From June 2 through June 9, he continued to fulfill his work obligations by attending mandatory annual simulator training.

The FAA examiner told the pilot on June 10 that he would have to take Metformin for 60 days. Following this course of treatment, an agency medical examiner would then run tests to determine whether he could resume flying.

The parties disagreed whether the pilot knew on June 2 or June 10 that he would need medical leave.

The pilot informed crew scheduling on June 10 that he would need medical leave and informed the base manager on June 12. The manager told him that he had five days to submit the required FMLA forms and his doctor's paperwork certifying his claim, rather than the statutorily mandated 15 days, and did not mention the consequences of failing to provide adequate certification. The pilot submitted his formal request for 60 days' leave.

The vice president of operations immediately told the base manager not to respond, stating "our intent is to terminate his employment for noncompliance with the law." Consequently, the pilot was not given an eligibility notice explaining the limitations on unpaid leave, a rights and responsibilities notice laying out expectations of the employee and explaining consequences of failing to meet those obligations, and a designation notice regarding how much leave would be counted against his entitlement.

Although he tried to tell his employer multiple times that he would not be able to return to work pending FAA approval and attempted to amend his leave request to extend until late August, the pilot received only a voice mail on July 31 telling him that he was scheduled to resume flying. The employer notified him Aug. 1 by e-mail that he needed to submit a recertification from his doctor by Aug. 15, providing less than the minimum 15 days required. The pilot submitted the requested paperwork Aug. 25 but had already been terminated Aug. 16 for failing to return from leave. He received FAA approval to return to work on Sept. 4, one day past his FMLA leave entitlement.

The pilot and his union filed a grievance and pursued the arbitration process laid out in the CBA, alleging that the company had violated the CBA's provision on the FMLA: "The company shall grant family and medical leaves in accordance with applicable law." The company refused to arbitrate, claiming that the grievance had not been properly filed. After receiving a right to sue letter from the Equal Employment Opportunity Commission, the pilot filed his claim in court.

A federal district court found that the CBA fell "far short of the need to clearly and unmistakably require union members to arbitrate claims arising under federal anti-discrimination laws." The court ruled for the pilot, awarding him $426,493 in front and back pay and liquidated damages, after finding that his employer had interfered with his FMLA rights and retaliated against him in violation of the statute.

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On appeal, the 7th U.S. Circuit Court of Appeals turned first to the question of whether the district court should have compelled arbitration. The appeals court noted U.S. Supreme Court precedent requiring that an agreement to arbitrate statutory anti-discrimination claims must be "explicitly stated" in the CBA so as to demand a "clear and unmistakable" waiver.

This CBA, however, "contained only the nondescript catch-all that disputes 'arising under the terms of this agreement' would be bound to arbitration and only generally required [the employer] to grant leave 'in accordance with applicable law' but did not 'specifically provide that it was incorporating into the agreement the prohibition of' FMLA violations," the court said. "The north star of our analysis is whether a waiver is 'clear and unmistakable.' We cannot say the language in this case … satisfies this test."

Finding that the district court had appropriately denied the employer's motion to dismiss, the court then held that the district court also had correctly rejected the employer's motion for judgment as a matter of law.

A reasonable jury could have found that if the employer had complied with regulatory notice requirements and not adopted a no-contact policy, the pilot would have better understood his obligations, more expeditiously requested leave and more aggressively pursued FAA approval, which could have resulted in his return to work by Sept. 3, the court found.

Further, the court noted that the employer's failure to provide the pilot with 15 days in which to provide medical certification of his need for FMLA leave, coupled with its failure to provide other mandated notices, were sufficient to lead a reasonable jury to find that the employer had interfered with the employee's FMLA rights.

Finally, addressing the employer's argument that the pilot failed to provide the required prompt notice of his need for medical leave, the court stated that the employee had given notice of his need for leave on June 10, immediately following his meeting with the FAA medical examiner and a diabetes specialist.

"In our view, this notice was 'as soon as practicable under the facts and circumstances of the particular case,' " as required by the FMLA, the court said. The employee also had consistently attempted to alert his employer to his need for additional leave beyond his initial request for 60 days. Based on these considerations, the court concluded a reasonable jury could determine that the pilot had provided sufficient notice of his need for leave, precluding judgment for the employer as a matter of law.

Cloutier v. GoJet Airlines, LLC, 7th Cir., Nos. 19-1322, 19-1773, 19-1823 and 19-3279 (April 29, 2021).

Professional Pointer: Employers should take care to explicitly state in a CBA that employment-related discrimination claims will be resolved through arbitration.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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