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Bernstein vs Virgin America/Alaska Class Action Update

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On January 15, 2021 the United States Court of Appeals for the Ninth Circuit heard the appeal filed by Alaska Airlines to the win granted by a district court to the Virgin America Flight Attendants in a back wage suit filed back in 2015. A summary judgement was awarded in the amount of $60,000,000, in addition to legal fees and other costs which brought the win to just under $78,000,000.

In the suit, filed in 2015, lead plaintiff Julia Bernstein claims Virgin failed to pay its flight attendants for all the time spent before, after and between flights, for writing up incident reports, for time spent in training and for undergoing required drug tests. The class also alleges Virgin didn’t allow flight attendants to take meal or rest breaks, failed to pay overtime and minimum wages and didn’t provide accurate wage statements.

In 2019 Alaksa Airlines filed an appeal stating they were confident that they would have the ruling overturned challenging the application of local labor laws in the airline industry, where labor relations are typically governed by the federal Railway Labor Act.

That appeal was heard on January 15, 2021 via Zoom conference due to the coronavirus pandemic. The court published a full video of the hearing on it’s YouTube page.

Excerpts of the case are as follows (disclaimer: I’m not a lawyer, this is my interpretation and my selection of quotes after listening to the case in it’s entirety. I am a member of the class.):

  • Alaska Airlines argues that when bid awards were published flight attendants were keenly aware of the hours they would be working, including report and release time, time before and after flights and hours paid.
  • The airline also argued flight attendants made over minimum wage over 99% of the time and claimed that the district court’s ruling that they did not make at least minimum wage was based on a technicality in which the hourly rates are different for different duties. (flight attendants didn’t receive 100% hourly pay for recurrent or for drug tests.
  • Alaska also argued that the flight attendants only “worked in the State of California 31.5% and worked outside of California 84.5% of the time.”
    • Justice Smith pushed back on the above by pointing out in the employee’s work guidelines, as the airline didn’t have a collective bargaining agreement at the time, made no distinction between policy that applied to work in California vs out of California. And noted the work guidelines were drafted by the airline, without a negotiation, therefore the work group didn’t have a say in whether or not there should be a distinction. He later commented that if the airline wanted to suggest that other State’s law applied while reporting for a flight or work outside of California it should have been stated in writing and pointed out to the employee upon hiring. He also asked if, when flight attendants signed their offer letters or were handed their work guidelines if a lawyer ever reviewed it on their behalf.
  • Alaska’s attorney then shifted arguments to convey comments on the meal and rest break claims saying that federal law preempts California law “three different ways.”
  • A lawyer for the United States joined the attorney for Alaska Airlines in stating US Federal law by way of the Deregulation Act, preempts California law. She argued that airlines based within California would have at hard time competing with those based outside of California if they had to allow for California approved “off duty breaks and meal periods.” The costs involved would affect “prices, routes and services.”
  • During the first arguments made by the flight attendants by way of Charles Cooper, Justice Smith said that the attorney for the US was correct in that motor carriers different from air carriers and asked why earlier judgements for motor carriers should also be applied to the aviation sector. Mr. Cooper replied: “it’s really not different.” He said the “language that governs” is virtually identical. And when it came to meal and rest breaks, their purpose is for safety while conducting interstate travel. He also argued that although the US attorney stated airlines having to follow California law would affect prices, routes and services (using the analogy “the hip bone is connected to the leg bone” song), they could still follow the law if directed. There would be nothing stopping them from doing so.
  • Justice Smith then said, assuming he disagreed that the earlier rulings in favor of truck drivers applied here, what would Mr. Cooper’s next best argument be. Mr. Cooper replied that the airlines are having to account for rest and meal breaks with gate agents, rampers and other employees and this should be no different. Judge Smith rebutted that claim by saying there are no gate agents or rampers in the class action and the case is just about flight attendants. Mr. Cooper again stated that the question comes down to whether or not the placement of an additional flight attendant on flights to/from California would have a direct impact of air fares, routes and services.
  • Mr. Cooper also added that because no flight attendants spent more than 50% of their time in any one state, California law would apply. He also stated that all flight attendants were based in California. What was not mentioned: Having been a Virgin America employee, when the airline opened JFK as a crew base it was always made clear that everyone was still “San Francisco based.” The airline was very stern with those warnings. JFK was opened as a satellite base and it wasn’t until much later that it became a full crew base.

  • Monique Olivier then took over and reiterated that this case is about a California employer and California based employees and noted that those flight attendants that were based at JFK after 2014 were excluded from the class.  Therefore, the only people seeking to recover time was California employees and some were also residents. She also raised the point that the airline made the choice to be based in California because it took state money and incentives to be headquartered there.
  • Ms. Olivier then turns the page to wages and quotes from the employment contract which states “you will be paid on an hourly basis.” She then explained that the earlier argument by Alaska was simply incorrect. She stated that the “formula” used to decide wages for flight attendants based on their bid award, did not account for all hours worked in which flight attendants were told they’d receive an “hourly rate.” She later explained that a vast majority of the time sought to be recovered was time worked on the ground in California by way of gate holds, taxi delays, training, etc.
    • Ms. Olivier then explains that the case against Delta Air Lines isn’t the same as this case. Delta has a “one for two duty credit” and the court very carefully reviewed it and found that Delta added up all of the hours at work or in the duty period, then divided it by the flight hourly rate. Therefore, if the duty day got extended for any reason Delta insured a flight attendant would receive pay, but Virgin America had no such protection.
  • The court then returned to Alaska’s attorney’s for rebuttals. He argued that the “work rules” don’t have a “choice of law provision” cited therefore, California law shouldn’t apply. He also argued in regards to rest breaks, truck drivers could pull over for a break.. airline’s have a harder time allowing flight attendants go off duty to take a break. Lastly, he stated this comes down to “where was the work performed” and where did “the employee report to work most often.”

As of the end of the first week in February, an opinion has not yet been entered by the court deciding the appeal.

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