Delta Sky Club Worker At LAX Sues For Pay While Waiting At Airport Security — But TSA Doesn’t Work For Delta

A Delta Air Lines Sky Club worker at LAX is seeking class action status for a lawsuit arguing employees should be paid for time spent going through TSA. They’re suing Compass Group USA, the food service company for the lounge, and also Delta as ‘joint employer’.

LAX Sky Club

The legal theory is that this pre-clock-in time is “hours worked” under California wage orders (time under the employer’s control). California’s Supreme Court held that employer-required exit searches on the employer’s premises can be compensable “hours worked.” (Frlekin v. Apple). The argument is that employees had to go through mandatory security to access their work site, so that waiting time is controlled by the employer and must be paid.

However, California’s Supreme Court explained that the level of employer control (not merely “this is required”) drives the analysis of whether employer-mandated security gate procedures can be compensable (Huerta v. CSI Electrical Contractors).

California compensability turns on employer control, not just necessity. Security screening is compensable when:

• it is required by the employer
  
• administered at the employer’s direction
  
• and the employer controls the manner, timing, or conditions of the screening.

LAX Sky Club

TSA screening is none of those things. The concession operator doesn’t manage the checkpoint, control wait times, staffing, or what an individual goes through during screening. They lack the ability to waive or modify screening. So I don’t think this is going anywhere.

There’s also an argment about lack of meal and rest breaks, and I note that TSA screening times make it challenging to leave the airport during breaks, but I don’t think this has much chance either. I’d love to hear from subject matter experts who differ with me on this.

TSA security wait time pay has already been litigated in California and lost at the 9th Circuit in Cazares v. Host International over pay at an LAX lounge (Admirals Club). The case was dismissed because the employer didn’t exercise any control over the employee during screening. It’s government-mandated, not employer-mandated. And the court rejected the theory that the employer must enable leaving the entire secured airport area. The relevant “premises” they have to be able to leave is the lounge itself. (To be sure, that case is not binding on a California Superior Court.)

Delta Planes At LAX

For this to go anywhere the claim has to be stronger than TSA exists. If the employer required employees to arrive at a specific time before the start of their shift, because of security, that would be a different matter.

Suing Delta here as ‘joint employer’ also seems thin. Delta sets lounge standards. But they aren’t directing day to day work or supervising individual employees. They benefit from the work inside the lounge, but their control is of the contract company (Compass) and not at the employee level. Suing Delta alongside Compass makes strategic sense as a deep pocket, but Delta isn’t setting schedules or approving time cards, they’re setting quality standards.

California employment law is.. unique… but it doesn’t support this class action, I don’t think. That said, one of the last things I’ve ever wanted in professional life is to be a California employer. I’ve had to fill out insurance applications at work that ask as a standalone question, “do you have any employees based in California?” They ask this for a reason.

LAX Sky Club

I lived in California as a teenager and my family was in the car business there. A mechanic in their repair shop once cheated on his wife. She confronted him when she learned he’d gotten an STD. So he went full on Shaggy Defense claiming to have gotten it at work – from a spider bite while fixing a car.

That is not.. how STDs work. They’re called sexually transmitted for a reason. That did not matter. Since he was fully committed to the workplace injury story with his wife, he had to lean in and apply for for workers comp. He got it.