FAA Moves To Override State Rest Rules For Flight Attendants, Saying Safety Comes First

Several states purport to require flight attendant rest breaks. There are currently rules in place in California, Colorado, Connecticut, Delaware, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New York, North Dakota, Oregon, Rhode Island, Tennessee, Washington, and West Virginia.

• State labor laws often require employees to receive meal/rest breaks where they are relieved of duty (and sometimes even are free to leave).
  
• That doesn’t work well with an airline, where crew can’t really be ‘off duty’ in the vent of an emergency. These laws would effectively require adding relief flight attendants even for a cross country flight (over 5 hours) or block seats to require fewer flight attendants just to make those flights work with the current crew complement, or eliminate routes altogether.

You’d think that states couldn’t regulate this, because the Airline Deregulation Act preempts state rules for how airlines operate. The idea was to have one national set of rules for a national transportation system. But preemption only applies to regulation of prices, schedules and service – and courts have ruled that it’s not really regulating service to say crew have to have rest. That’s background labor regulation, and merely imposing higher costs of compliance isn’t enough.

The Department of Transportation is looking to change that and make preemption clearer. A new proposed rulemaking says:

• The FAA occupies the regulatory field for crew duty and rest requirements
  
• There’s a clear conflict if state law requires a duty-free rest break, but the FAA requires crew to be available for safety
  
• So there’s a clear record that, according to the FAA, state rules here materially affect prices, routes, and service.

The FAA doesn’t actually get to unilaterally preempt state work rules. Courts would still have to decide whether the administrative record and rulemaking demonstrates a real conflict in a preempted area. But the conflict and regulation of services is no longer merely an implication for airlines to argue in court. This rulemaking would make it a federal challenge to state regulation.

Five years ago an appeals court ruled that California could mandate inflight work rules for flight attendants based there. Two years later, flight attendants union AFA-CWA worked to undo that court ruling that they fought for, supporting a rule that would exempt flight attendants union union labor agreements.

• The union got leverage over airlines – they could sign off on waiving these requirements in exchange for contract provisions on meal and rest breaks.
  
• And this helped them avoid airlines eliminating California flight attendant bases (closing these would make the lives of their members already based there quite difficult).
  
• It also advantages having a union, hurting non-union ones like Delta (and SkyWest).

At this stage, the FAA notice of proposed rulemaking has to accept public comment, those comments have to be considered, and then they need to decide whether to promulgate a final rule. This does not always happen. And final gets get challenged in court. But it seems reasonable to say that the FAA regulates inflight rest for safety, and that when they are doing this states shouldn’t interfere with their own general rules that swallow up airline workers alongside other industries.

It’s especially interesting to me to see several proposed rulemakings out of the Department of Transportation and FAA recently (like potentially withdrawing the full fare pricing rule!). Much of the work of this administration has been done through Executive Orders but those aren’t likely to last very many days into the next administration that’s held by the opposing party. Most executive agencies have eschewed the harder but more enduring work laid out in the Administrative Procedured Act. DOT appears to be an exception to this.

(HT: Paddle Your Own Kanoo)