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.