Connect with us

Airline News

Virgin Flight Attendants Owed Overtime, Rest & Meal Breaks



In 2019 group of about 1,800 Virgin America flight attendants was awarded $77 million in a lawsuit that alleged their employer, Virgin America, violated several California labor and wage laws. The flight attendants claimed they were not paid minimum wages and overtime as required by law.

Alaska, whom has since purchased and merged with Virgin America, appealed the ruling and argued that California labor laws did not apply to the case as the company operated under federal aviation regulations rather than state laws.

The 9th Circuit Court of Appeals didn’t completely agree. In a published opinion, a unanimous Ninth Circuit panel affirmed most of a district court’s decision to grant summary judgment in the flight attendants’ favor on claims of overtime, meal and rest breaks and other violations.

For each of those claims, the panel said state law applied. The panel pointed out that around a quarter of Virgin’s flights during the relevant time period were between California airports, and that the flight attendants spent almost a third of their time within California borders and that there was no evidence they spent more time in any other state.

Claim: Virgin Flight Attendants Should Be Paid For Every Hour at Work, Block Time is Illegal

The decision by the district court to grant summary judgment on the minimum wage and payment for all hours worked claims has been overturned. The panel stated California law applied, but Virgin’s policy of paying flight attendants based on block time and not for specific hours was legal.

“The fact that pay is not specifically attached to each hour of work does not mean that Virgin violated California law,” the panel said, citing a state high court holding from Oman that such a pay “scheme, taken as a whole, does not promise any particular compensation for any particular hour of work.”

The removal the claim for “every hour worked” removes $36M from the original award. In 2018 Flight Attendants requested an $85M summary judgement, $77M was awarded. The largest chunk of the requested payout would come from damages, restitution, and interest for Virgin’s failure to pay for hours worked, which total more than $18 million for the class and an additional $18 million for a California subclass.

However, the panel held that under the circumstances of this case, Virgin was subject to the overtime strictures of California Labor Code § 510 as to both the Class and California Resident Subclass. Labor Code 510 states: “(a) Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.” Judge Smith noted in the opinion that Alaska “did not dispute that it failed to comply with § 510.” In the original summary judgement the California subclass sought $8.4 million for the failure to pay overtime. Because they never disputed that it went unpaid, the court upheld the award.

The class also requested more than $4 million in penalties for Virgin’s failure to provide accurate wage statements .

Claim: Virgin Flight Attendants Never Received Required Rest/Meal Breaks

“Unlike the state laws at issue in [past cases], California’s meal and rest break requirements have no direct bearing on the field of aviation safety.”
– Judge Milan D. Smith Jr.

Alaska Airlines tried to argue that rest and meal breaks weren’t possible due to aviation safety concerns including the requirement to staff flights with additional crewmembers to ensure there was the required amount “on duty” during breaks.  The 9th Circuit has previously held that the Federal Aviation Act reigned over state meal and rest break requirements in the area of aviation safety due to “a congressional interest in national aviation safety standards.” But the panel rejected Virgin’s argument in favor of that preemption, saying safety was not at issue in the flight attendants’ case.

Claim: Legal Fees

The panel held that since it reversed in part the district court’s judgment on the merits, California law required that the panel vacate the attorneys’ fees and costs award which totaled $6.2M. The panel remanded the issue to the district court.

The Final Award

We affirm the district courts summary judgment to Plaintiffs on their claims for overtime (§ 510); for violation of meal and rest break requirements (§§ 226.7, 512); for wage statement deficiencies (§ 226); and for waiting time penalties (§§ 201 and 202). We reverse the district court’s summary judgment to Plaintiffs on their claims for minimum wage (§ 1182.12); for payment for each hour worked (§ 204); and for heightened penalties for subsequent violations under PAGA

It should also be noted that Alaska argued that the “class” or group of flight attendants as whole should be overturned, the court affirmed the class.

Based on my non-lawyer, no legal experience, calculations after reviewing the motion for summary judgement and what the 9th Circuit has upheld, the original $83M award (including the legal fees) looks to be somewhere around $15,000,000 – $20,000,000.  Additionally, each claim that was affirmed came with daily interest charges for each day payment hasn’t been made and that figure hasn’t been calculated since October of 2018. Further, the court affirmed the class’ claim for “waiting time penalties.”

The Ninth Circuit panel’s decision reversed the lower court’s ruling that Virgin should pay heightened penalties under PAGA. That removed $24,000,000 from the initial award. Of which, 25% was slated to go to the class members.




Comments & Discussion