Southwest Sued For Not Paying Flight Attendants Overtime — Does A Union Contract Override State Wage Law?

Southwest pays flight attendants the way most U.S. airlines do: you get paid for flight time, not for all the time you are required to be on duty. A former Chicago Midway-based flight attendant says that isn’t just annoying, it’s a violation of Illinois overtime law, and he’s started a class action lawsuit.

However, Southwest seeks to have it dismissed, arguing that because flight attendants are unionized, the dispute belongs in the Railway Labor Act system, not in court.

Phillip Rizzo, the former flight attendant, alleges Southwest’s pay system “only pays for in-flight time,” while flight attendants still perform significant required work at other times, which he argues pushes them over 40 hours in a week without the overtime premium the law requires.

• report time an hour before a flight
  
• boarding and deplaning, directing passengers and safety checks
  
• ground time between segments and other duty periods that are still controlled by the airline but not treated as “payable flight time”

He filed in Cook County and Southwest removed it to federal court in Chicago (Northern District of Illinois).

At the federal level, airline employees subject to Title II of the Railway Labor Act fall into the Fair Labor Standards Act’s overtime exemption. This is a state-level claim, because Illinois law is time-and-a-half after 40 hours in a work week. And the claim is the hours are worked under Illinois law.

How Southwest Airlines Pay Actually Works

Southwest flight attendants are paid based on Trips for Pay (TFP), a credit unit that gets computed for each flight segment, summed across a pairing, then “protected” by minimum-pay rules (“RIGs”). The paycheck is essentially total credited ‘trip for pay’ times the contractual pay rate for a flight attendant’s seniority, plus premiums and overrides (A-position pay, holiday, double and triple time triggers).

• A “standard trip” (the base unit) is a segment with 243 miles or less. For non-standard segments (over 243 miles), the contract adds 0.1 trip for each 40-mile increment above 243 miles (rounded to the nearest 40-mile increment).

  Overschedule override is then 1.0 trip plus 0.1 for each 5 minutes over 55 minutes, truncated to the nearest 5 minutes. If that value exceeds the non-standard mileage formula, the flight pays the override value.

  For each segment that actually operates longer than scheduled block time, it pays 0.1 trip per 5 minutes over scheduled block time (truncated to 5 minutes). Diversions and enroute stops are subject to this premium.

  If the aircraft blocks out then returns to the gate without taking off, the “gate return” is paid at 0.1 trip per 5 minutes over the flight’s scheduled block time.

• A multi-day trip starts with “leg credits” adding up the segment values across the duty days. Then, the trip has to pay at least contractual minimums. These are computed with an average daily guarantee (6.5 TFP times the number of scheduled domicile days in the pairing). There’s a 4.0 TFP minimum per duty day. And then there’s a minimum of 0.74 TFP per hour on duty, credited through end of debrief or release from Scheduling (whichever is later).

• There’s a minimum 1.0 TFP for each 3 hours away from domicile (report-to-release).

Then there’s position premiums, charter pay, deadheading pay, training pay, ground transportation pay and other add-ons.

Southwest’s Argument Against Overtime

Flight attendants are unionized and covered by a collective bargaining agreement. The dispute is about how that agreement defines, credits, and compensates duty time. Since resolving the claim requires interpreting the agreement, it is a “minor dispute” under the Railway Labor Act and belongs in the Act’s dispute resolution system, not in a wage-and-hour class action in court.

But that runs headlong into Hawaiian Airlines v. Norris: state-law claims based on rights that exist independently of the union contract are not preempted just because a collective bargaining agreement exists. So whether Southwest wins this depends on whether the case can be resolved without interpreting the contract.

• Plaintiff will argue: you can measure duty time and pay. You only need to look at the contract for wage rates.

• Southwest’s position: you can’t decide ‘hours worked’ or ‘regular rate’ without deciding what the collective bargaining agreement says about compensated time. And in Southwest’s system that’s probably more true than most.

Numerous Class Actions Over Flight Attendant Pay Are Spinning Up

United flight attendants are suing for back pay under New Jersey wage law, alleging they have effectively done “half their work for free” because pay starts at door-close and ignores boarding, deplaning, report time, and sits, plus overtime when weekly hours exceed 40.

This implicates the long-running debate over whether flight attendants “should” be paid for boarding time, and how much of the current structure is a product of what unions prioritized in bargaining.

The new trend towards union contracts including boarding pay was kicked off after non-union Delta added boarding pay. Historically, unions preferred higher pay rates rather than paying boarding time because it benefited the more senior members of the union.

• Junior flight attendants tend to work more shorter flights and spend a greater portion of their time boarding.
  
• Senior flight attendants tend to work fewer, longer flights and so this affects them less.

In other words, higher pay without boarding pay redistributed income from junior flight attendants to senior ones. And while unions occasionally nodded towards boarding pay this wasn’t something they historically negotiated.

However, the legal strategy in New Jersey, Illinois and elsewhere is to try to get union contract pay and a government-mandated wage premium on top of it for past work.