Appeals Court Rules Each State Can Mandate Inflight Work Rules For Flight Attendants Based There

One of the more complicated legal issues I come across is what airline practices states are allowed to regulate, and which ones they aren’t. The Airline Deregulation Act makes issues of price, routes, and service a matter for federal regulation, seeking to avoid a ‘patchwork’ of 50 sets of rules for interstate travel.

States can’t regulate frequent flyer programs, which are considered to be a rebate on price, even though a majority of miles are earned from things other than flying (and you can often redeem for non-flight rewards, too).

The Ninth Circuit Court of Appeals has ruled, though, that California’s meal and rest break rules can be applied to airline crew. And that’s true even for crew who spend a majority of their work time outside the state. The court’s ruling covers Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington State, Guam , the Northern Mariana Islands and Hawaii.

In Bernstein v. Virgin America the Appeals Court found that California could require 30 minute meal breaks for flight attendants every 5 hours and 10 minute rest breaks every four hours.

The Ninth Circuit once again leaned on its decision in Dilts v. Penske Logistics — another preemption battle, but one involving commercial motor carriers. The 2014 ruling established that California’s meal and rest break rules were not preempted by the Federal Aviation Administration Authorization Act of 1994, which bars any state law “relating to a price, route or service of any motor carrier.”

Dilts applies with “equal force here” in Bernstein, the Ninth Circuit said, because it’s not as if mandating meal and rest breaks at specific intervals “binds” a carrier to a specific price, route or service in violation of the Airline Deregulation Act.

Under this expansive ruling, a state would be free to regulate working conditions for airline employees based in the state even when they’re traveling outside the state. The (former) Virgin America flight attendants in this case worked only 31.% of their time in California.

Any airline flying to California would be subject to California rules for at least a meaningful portion of its workforce, and would have to figure out how to comply with the rules of all states in which they base employees.

The appeals court did recognize, however, pay based on ‘block time’ of a flight – which, by the way, was union-negotiated – doesn’t run afoul of California’s minimum wage statute. Flight attendants are making minimum wage even when factoring the $0 pay for time worked outside of those block hours. (Pay is calculated in a standardized way rather than clocking in/clocking out, and that means some people think of a flight attendant not being paid while boarding passengers, but inflight time is at a higher rate to compensate for this.)

While the Department of Justice told the court that imposing California-mandated breaks “doesn’t work for the choreographed [and] coordinated nature of air travel” I’m not sure that’s true. In general flight attendants read People or play Tetris for more than 10 minutes out of every four hours. More interesting would be a regime that limited flight attendant breaks to the times specified by California.

However the flight attendants in question in the case are covered by union contracts, and California work rules weren’t a priority for their union. It seems illogical to impose work rules on collective bargaining agreements, and indeed to the extent that these rules impose costs on the employer they’re likely to trade off with other considerations flight attendants value more, since an airline will look at its total ‘budget’ for employment cost as it bargains over each item under discussion.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. Just for clarification, part of your premise is factually incorrect here Gary. Virgin America flight attendants never had a collective bargaining agreement, and I’m not sure they were even unionized at the time of the lawsuit being filed (union was voted in in 2014, I see the federal case goes back to early 2015, but it was originally filed in state court, not sure of the date).

  2. I think the important question is whether a flight attendant playing tetris on their phone during a break technically reduces crew minimums. If airlines can successfully argue that the F/A is there and able to quickly end their break in case of an emergency that requires them, they probably have no issues with this. If they can’t, then they’ll need to add an additional FA on most flights over 3ish hours, and potentially all but the shortest if tarmac delays could prompt needing to return to the gate as the FA can’t take a midflight break without violating crew minimums.

    Delta will be the interesting one as they are the only super-large airline without an FA union, as far as I know, and will have to abide by this.

  3. Interesting, Gary. I’m a pilot. By your logic, I am on break for about 90% of every flight because I am not actively doing something in the flight deck. Same can be said of any service worker. For example, a fast food worker that might not have any customers must surely be on break. Let’s get rid of mandated breaks and rest requirements for everyone since your opinion of someone working is they are actively doing something just for YOU!

  4. What about pilots who are CA based and non-union. Do they need to start carrying a relief pilot incase they exceed 4 hours and need to take a 10 minute break?

  5. Hi Nadav, if that’s what it takes to ensure airline crew receive the same workplace rights as any other safety/service job on the ground then yes. The fact that workplace rights for crew are regulated by a set of laws last amended in 1936 is beyond ridiculous and long overdue for change. I applaud California for making an effort.

  6. Per your Tetris and People Magazine comment, and to further expound on Ben’s point a few posts above, what are firemen doing at the firehouse before they get a call? Do you have a problem with their down time before they have to go back to work? I doubt it because they’re men, and your anti woman bias is so glaring to where I can’t see.

  7. @ATC – I wasn’t criticizing flight attendants, just suggesting that carving out formal ‘rest periods’ shouldn’t be that hard. it is really funny to compare flight attendants to fire fighters but ok. there are many places in the US where fire departments are all volunteer…

  8. Wow! @Gary, I’m not quite sure what you mean by “it’s funny to compare flight attendants to fire fighters”? Are both not first responders (9/11, shoe bomber, medical emergencies, etc). Every year when I attend my training I watch as flight attendants have to demonstrate their ability put out fires in the cabin. I can’t think of a scarier situation to be in.

    Oh wait, a fire fighter isn’t also going to serve you snacks, meals and drinks depending on the flight. A fire fighter isn’t going to converse with you, pretend to like you, or even acknowledge you while they work. So you’re right…very different.

    For someone who flies as much as you do, one would think that you would have more appreciation for the people who would do anything to save your life in an emergency. It’s quite clear you would not do the same. I know a lot of flight attendants out there are miserable and unpleasant, but maybe it’s because they have to put up with people like you all day?

    Seriously, what a horrible thing to say! You should be ashamed.

  9. Honestly, @Gary, I used to enjoy reading your blog because it was informative about my industry. I had to stop because of how much you criticize flight attendants. I only read this article because it was shared with me, but sometimes I feel like criticizing flight attendants is the reason some people follow you based off of the comments. If it’s not what you intend, maybe you should change how you write or what you write about. My wife, a flight attendant, would certainly appreciate it!

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