On Tuesday, October 4, 2022, the United States Department of Transportation’s Federal Aviation Administration (“FAA”) issued its final rule for required rest breaks for flight attendants. The new rule increased the minimum rest period from nine consecutive hours to 10 consecutive hours for crews with scheduled duty of 14 hours or less. The new rules also eliminated the provision which allowed crews to take reduced rest hours in certain circumstances. This new rule will become effective 30 days upon publication in the Federal Register.
This news gives us a chance to explore the interplay between two different areas of law: Aviation Law and Employment Law. This discussion seems especially apt in light of the United States Supreme Court’s (“SCOTUS”) June 30, 2022 decision not to grant review of the Ninth Circuit’s ruling in Bernstein v. Virgin America, Inc., 227 F.Supp.3d 1049 (9th Cir. July 20, 2021).The Ninth Circuit conducted a deep dive on the FAA’s rule on flight attendant rest while examining California’s labor laws governing rest and meal breaks.
On March 18, 2015, current and former Virgin America flight attendants brought a class-action lawsuit against the airline in federal court in the Northern District of California. Plaintiffs alleged that Virgin failed to pay minimum wage and overtime, failed to provide the required meal and rest breaks, failed to provide adequate wage statements, and owed Plaintiffs waiting time penalties. The district court granted class certification to Plaintiffs and divided Plaintiffs into the following classes: (1) Class: All individuals who worked as California-based flight attendants of Virgin America during the class period; (2) California Resident Subclass: those individuals who worked as California-based flight attendants who resided in California during the class period; and (3) Waiting Time Penalties Subclass: those individuals who worked for Virgin America, but had separated from the airline since March 12, 2012. On July 9, 2018, the district court granted summary judgment in favor of Plaintiffs, holding that California labor law applied to all work performed in California. The district court rejected Virgin’s arguments that application of California labor law violated the Dormant Commerce Clause, and that California labor law was preempted by the FAA or the Airline Deregulation Act. Virgin appealed to the 9th Circuit.
On appeal, the Ninth Circuit affirmed most of the district court’s California labor law rulings. The appellate court examined whether the Dormant Commerce Clause barred application of California’s labor laws. The appellate court held that California’s labor laws did not violate the Clause because the State’s laws did not place a substantial burden on interstate commerce. While applying the stricter California Labor Code (“Labor Code”) would bring additional complexity and costs to the airlines, the effect of the Labor Code would not create a system of inconsistent regulation of activities. The appellate court contrasted the Labor Code to an invalidated Arizona law that placed a state law limit on the length of trains that was different from the limits placed by neighboring states. In Southern Pacific Company v. Arizona, 325 U.S.761 (1945), the SCOTUS ruled that the complexity, costs and safety hazards of requiring trains to stop, break up and reconstitute according to Arizona law would place a substantial burden on interstate commerce. While the Arizona law would violate the Dormant Commerce Clause, California’s Labor Code would not.
The Ninth Circuit also addressed another interesting issue: The preemption of the Labor Code by the FAA. Federal preemption occurs when federal law takes precedence over state law in an area that Congress has deemed to be exclusive to the federal government. Congressional intent to displace state law could be inferred from a system of regulation “so pervasive that Congress left no room for the States to supplement it” or areas in which the “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Bernstein, 3 F.4th at 1138 (citing Arizona v. United States, 567 U.S. 387, 399 (2012).
Congress designated the FAA to regulate the field of aviation safety in the United States based on the “dominance of federal interest in regulation of the country’s airspace”. Montalvo v. Spirit Airlines, 508F.3d 464, 468, 471-72 (9th Cir. 2007). Therefore, federal preemption of California labor law would only occur when the state law “encroach[ed] upon, supplement[ed], or alter[ed] the federally occupied field of aviation safety.” Ventress v. Japan Airlines, 747 F.3d 716, 722-23 (9th Cir. 2014). The Bernstein court found Virgin’s argument that the Labor Code’s regulation of meal and rest breaks encroached on aviation safety to be too tenuous to be persuasive. Bernstein, 3 F.4th at 1139. On the contrary, the court found California’s laws on meal and rest breaks has no direct effect on the field of aviation safety. Id. Further, the Bernstein court’s analysis of the federal rule regulating duty periods for flight attendants showed that Congress did not create a framework of regulation so comprehensive or pervasive to occupy the entire field of flight attendant duty hours. Instead, Congress left room for states to regulate meal and rest breaks within allotted duty hours. Id.
Virgin also argued a second theory of preemption, that California’s meal and rest break rules creates such a conflict with federal regulations as to make following the federal rule impossible (“impossibility preemption”) or the state rules would create an obstacle to the accomplishment and execution of the federal rule (“obstacle preemption”). The California rules would be invalid under “impossibility preemption,” according to Virgin because it would be “physically impossible” to comply with federal rules regulating maximum duty hours, and to comply with California laws regulating rest and meal breaks. Bernstein, 3 F.4th at 1140. The Bernstein court curtly rejected Virgin’s “impossibility preemption” argument. Instead, the appellate court found that compliance with both federal and California rules is possible.
Virgin argued a third theory of preemption - that California’s rules should be preempted under “obstacle preemption” because giving flight attendants meal and rest breaks would create gaps in safety onboard a flight. Virgin asserted that the FAA requires flight attendants to be constantly on call for an emergency. Having flight attendants on mid-flight meals and rest breaks would detract from the Congressionally mandated safety mission of flight attendants. The Bernstein court disagreed and called Virgin’s argument a mischaracterization of the federal rules. Federal rules on flight attendant staffing set a minimum number of flight attendants according to an airplane’s payload the passenger capacity. See 14 C.F.R. § 121.391(a). A related federal rule sets the duties for a minimum number of flight attendants. See 14 C.F.R. § 121.394. These rules only set a minimum floor for Virgin. The Bernstein court reasoned that the rules did not preclude Virgin from staffing additional flight attendants above the minimum levels to comply with both federal safety requirements and state labor requirements. Bernstein, 3 F.4th at 1140-41. Virgin presented three arguments for preemption by the FAA and struck out on all three.
Although Virgin America no longer exists, its successor in interest, Alaska Airlines, litigated Bernstein all the way to the United States Supreme Court. Now that SCOTUS denied review, the implications are clear: all airlines with crews based within California must consider two sets of laws and regulations. Alaska Airlines, American Airlines, Delta Airlines, Hawaiian Airlines, JetBlue Airlines, Southwest Airlines, and United Airlines are all major carriers with crew bases in California. Soon, when scheduling monthly crew rotations, these airlines must calculate the new FAA rest regulations as well as consider staffing sufficient crew to give those California-based flight attendants their required meal and rest breaks.
To meet the new FAA rules and to comply with California labor law, airlines may need to hire additional flight attendants. This new reality may also force airlines to get more creative with their scheduling. Continuous Duty Overnight (“CDO”) schedules may become more popular in the future, especially because airlines could theoretically have their flight attendants take their meal and rest breaks during the overnight “duty” hours. Increased CDO scheduling could lead to more safety incidents.
Adjustments may not be limited to staffing additional crew and increased CDOs. Airlines may be able to fit in a 30-minute rest break between flights given sufficient turn time. Theoretically, on a 2 – 2 ½ hour flight, a flight crew might be able to take a meal break from the turnaround airport. Scheduling adjustments like these may be more difficult for some carriers like Southwest, an airline known for its short to medium distance flights with short turn times. Such airlines may need to schedule meal and rest breaks mid-flight for some crew. Airlines with long-haul flights could give preference to California-based crew because long haul flights are often double staffed. Crews could easily get their meals and rest breaks because flight attendants take lengthy breaks to remain within their maximum allotted duty hours.
Giving meal and rest breaks to only California-based crew could affect airline employee relations. Most of these carriers employ unionized flight attendants. If meals and rest breaks are given to only one group of employees, unions may demand airlines to grant similar meal and rest breaks to all flight attendants. Further, cabin crew based in other states within the Ninth Circuit may seek meal and rest breaks according to those state labor laws. The precedent set in Bernstein may require airlines to give meal and rest breaks to a greater number of their flight attendant workforce.
Tressler’s Employment Law practice group has significant experience in ensuring that companies comply with state and federal labor regulations, including rest break and meal break issues. Tressler’s Aviation Law practice group is well-versed in aviation law and brings creative, aviation-oriented and economical business solutions to aviation issues. If you have any questions or would just like to talk, please contact Bicvan Brown at email@example.com or Mark Banovetz at firstname.lastname@example.org.
 Federal Aviation Administration News Release titled “Biden-Harris Administration Extends Rest Periods for Flight Attendants” dated October 4, 2022. Can be found at https://www.faa.gov/newsroom/biden-harris-administration-extends-rest-periods-flight-attendants.
About the Author
Jihoon Kim is an associate in Tressler’s Labor & Employment Practice Group in the Orange County office. He advises employers in management-side labor and employment litigation involving discrimination, harassment and wage and hour claims. Having also established and managed corporate human resource departments, Jihoon has drafted and reviewed personnel policies, employee handbooks and other employment-related materials and has conducted investigations and counseled employers in connection with a broad array of employee relations issues, including wage and hour, disability leave and harassment.