Oman is not the only lawsuit to challenge the airlines’ position that airline workers should not be subject to state wage and hour laws because they are employed in interstate commerce. Virgin America took a similar stance in Bernstein v. Virgin America. So did United Airlines in Ward v. United Airlines. All of the airline defendants lost in the Ninth Circuit. In August, Virgin America also filed a petition for certiorari to the Supreme Court.
Shaking off the wage and hour requirements of the California Labor Code appears to be a top priority for the airline industry. The overall strategy is to mount multiple challenges to the application of California labor law, which is generally viewed as more protective of employee rights than federal law.
The language of the Oman petition gets heated, (at least for Supreme Court language):
“California wage-and-hour law is notorious for the detail in which it regulates matters left unaddressed by the federal Fair Labor Standards Act (FLSA) and other state laws. (Citations omitted) It is equally notorious for its potential to generate class litigation and outsized liability via California’s Private Attorneys General Act, or PAGA.”
“Notorious”– that passes for playground name calling in legal circles. The petition further characterizes the Ninth Circuit’s decision as “deeply flawed,” “profoundly disruptive,” and “a regulatory grab”. It names the employers’ familiar bogeymen of class action and PAGA lawsuits.
The Ninth Circuit’s opinion in Oman
In February, the Ninth Circuit affirmed the California Supreme Court’s holding that Sections 204 and 226 of the California Labor Code apply to flight attendants who either perform a majority of their work in California or who do not perform a majority of their work in any one state but are based for work purposes in California.
Delta had argued that applying California law would violate the dormant Commerce Clause, which generally enunciates the principal that the flight attendant’s wage issues should be governed by the Airline Deregulation Act (ADA). Section 204 of the California Labor Code requires employers to make the full payment of all wages twice monthly. Section 226 of the California Labor Code requires employers to provide employees with itemized breakdowns for pay and deductions in employee wage statements.
The dormant Commerce Clause generally stands for the principal that regulations that unduly burden interstate commerce may be imposed only by the federal government. Conversely, regulations that do not discriminate against or unduly burden interstate commerce may be imposed by either the state or federal government.
Delta’s argument is that California’s wage and hour laws impose such an undue burden and, as a consequence, only federal laws should apply. That could work to employees’ disadvantage. A ruling that California wage law does not govern airline employees could prove troublesome for workers in the future with respect to other sections of the California Labor Code. It would be reasonable to anticipate that other employers in interstate transportation would also want to apply the same principal to their employees.
The Ninth Circuit’s decision in Bernstein
In Bernstein, the Ninth Circuit held that California labor law applied to California-based flight attendants and that the Federal Aviation Act preempted state wage and hour requirements only to the extent that those state laws affect matters of safety. Virgin America had taken the position that federal law preempted state law because, as in Oman, applying state law would have imposed an undue burden on the airline.
Delta Airline’s petition for certiorari
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Tellingly, the petition focuses on the question of where the airline workers perform their duties, which in the case of a cross-country flight, could include many states. Oman and Bernstein, however, seem to focus on the location where the employees are based. If the Court decides to hear the case, it may be critical to determine what a “home base” is. Is it, as Delta characterizes it, “where the employee wakes up in the morning,” or does it imply some more substantial connection?