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  • RLA Preempts Flight Attendants’ Claims Under California Labor Law

    In a decision that is good news for airline employers, a California Appeals Court has held that a group of SkyWest flight attendants cannot pursue their claims under certain of California’s labor laws because these claims are preempted by the Railway Labor Act (RLA). See Fitz-Gerald v. SkyWest Airlines, Inc. (Sept. 19, 2007), opinion modified October 16, 2007. Additionally, the court held that an earlier California Appeals Court decision did not preclude averaging the flight attendants’ wages to demonstrate compliance with the state minimum wage laws.

    California labor law requires that certain employees in the transportation industry be paid not less than the minimum wage and receive meal/rest breaks and overtime. See IWC Order No. 9-2001. The SkyWest flight attendants claimed they were not given uninterrupted rest periods or meal breaks and that they did not receive overtime or state minimum wage under the airline’s method of compensating them. The flight attendants sought damages for these violations under the California Labor Code and relief under the California Unfair Business Practices Act.

    The trial court granted summary judgment in favor of SkyWest and the Court of Appeals affirmed this decision.

    Flight Attendant Compensation

    Using a method that is standard in the airline industry, SkyWest pays its flight attendants a combination of flight pay and per diem. Flight attendants receive block time pay from the time the aircraft blocks are removed until the aircraft reaches its destination. Flight attendants also receive a per diem allowance from the time they report to duty until they are released from duty.*

    SkyWest flight attendant compensation is based on the SkyWest Airlines Crewmember Policy, which has all the attributes of a collective bargaining agreement (CBA) and was negotiated by SkyWest and the SkyWest InFlight Association (SIA), an employee association representing the flight attendants.

    State Law did not Preclude Averaging in this Case

    Under IWC Order No. 9-2001, employers must pay employees at least the minimum wage "for all hours ordered in the payroll period" regardless of how remuneration is measured. The flight attendants claimed their per diem rate of $1.60 per hour violated this requirement. SkyWest claimed flight attendant compensation averaged $23.13 per hour (per diem time plus block time averaged over a month), a pay rate substantially greater than the state minimum wage.

    The flight attendants argued that under a recent California Appeals Court decision, SkyWest could not average their wages to satisfy the state minimum wage law. In Armenta v. Osmose, Inc., 135 Cal.App.4th 314 (2005), a case involving a company that did not pay its employees for travel time and time spent loading equipment and supplies in violation of its own CBA and written employment policies, the court rejected the FLSA wage averaging model. "[T]he FLSA model of averaging all hours worked ‘in any work week’ to compute an employee’s minimum wage obligation under California law is inappropriate. The minimum wage standard affixes to each hour worked by respondents for which they were not paid."

    The court in SkyWest distinguished Armenta, noting that Armenta did not involve an interstate air carrier, it did not involve the RLA or a CBA sanctioned under the RLA, and it did not involve a state wage order that contained an RLA exemption. In SkyWest the court held that there was no evidence that the airline paid the flight attendants less than what was collectively bargained for. The court also held that applying the state minimum wage law to an interstate airline carrier would burden interstate commerce.

    RLA Exemption Applied to Overtime Claims

    The court held that the flight attendants’ overtime claims were precluded by an RLA exemption in the state overtime law. IWC Order No. 9-2001(1)(E) provides that overtime wages do not have to be paid to employees who have entered into a collective bargaining agreement under the RLA. The court rejected the flight attendants’ argument that there is no CBA because SkyWest is a nonunion employer.

    The court held that under the RLA, employees have the right to organize and bargain collectively through a representative of their own choosing. This representative is "simply, a person or union [or an association] designated to act on [the employees’] behalf." Accordingly, the court held that the RLA exemption applied to the wage and benefit plans included in the SkyWest Crewmember Policy Manual, which were negotiated by SIA.

    RLA Preemption of Minimum Wage and Meal/Rest Break Provisions

    Although the minimum wage and meal/rest break provisions of the California wage order do not contain a specific RLA exemption, the court held that these claims are preempted by the RLA. Under the RLA, interpretation of a CBA lies in the exclusive jurisdiction of arbitrational bodies created by the RLA. If resolution of a state law claim requires the interpretation or application of a CBA, that claim is preempted under the RLA. The California Supreme Court has held that RLA preemption extends to "any claim premised on facts inextricably intertwined with matters subject to the grievance procedures of the collective bargaining agreement."

    The Court of Appeals held that if a violation of the meal/rest break requirements was found, the court would have to determine whether the flight attendant was receiving per diem pay or block time pay when the violation occurred, because damages for a violation of this law are one hour of pay at the employee’s regular rate of compensation. However, a court could not determine the regular rate of compensation without interpreting the CBA. Thus, the Court of Appeals held that the flight attendants’ claims for state minimum wages and meal/rest breaks were preempted by the RLA.

    The Court of Appeals also held that because these claims were preempted by the RLA, the plaintiffs’ claims for waiting time penalties (Lab. Code, § 203) and violation of the Unfair Business Practices Act were barred.

    If you have any questions regarding this decision, please contact the Ford & Harrison attorney with whom you usually work or Norman Quandt, a partner in our Atlanta office. Mr. Quandt represented SkyWest at the trial of this case and was co-counsel for the airline on the appeal. He can be reached at nquandt@fordharrison.com or 404-888-3845.

  • High Court Lets Stand Appellate Court Decision that Flight Attendants Cannot Challenge Arbitration Award

    The U.S. Supreme Court has refused to review a decision by the Fifth Circuit, which held that flight attendants working for Continental Airlines did not have standing to seek court review of an arbitration award issued under a collective bargaining agreement. See Mitchell v. Continental Airlines, Inc., 2007 U.S. LEXIS 9093 (October 1, 2007). As discussed in the April edition of the Airline Management Letter, the Fifth Circuit held that the flight attendants could not challenge the arbitration award in court because their employment was covered by a collective bargaining agreement that established a mandatory, binding grievance procedure and gave the union the exclusive right to pursue claims on behalf of aggrieved employees. See Mitchell v. Continental Airlines, Inc. (5th Cir. March, 2007).

    In reaching this decision, the Fifth Circuit followed cases establishing the same rule under the Labor Management Relations Act and the National Labor Relations Act. For a more detailed discussion of the decision, please see the April issue of the Airline Management Letter, http://www.fordharrison.com.

     

  • DOT Notice Provides Guidance Regarding Certain Drug Test Results

    The Department of Transportation (DOT) recently issued a notice providing guidance to employers who discover, through a background check or by other means, that an employee or applicant was reported as refusing to submit to a drug test prior to May 28, 2003. A copy of the notice can be downloaded from the DOT’s web site, http://www.dot.gov/ost/dapc/testingpubs/dot_notice.pdf.

    The new notice applies to specimens with creatinine concentrations within specified limitations, which, prior to May 28, 2003, were considered substituted urine samples and were reported as refusals to test. The DOT issued an interim final rule on May 28, 2003, stating that test results meeting these specific criteria must be considered dilute specimens warranting recollections under direct observation. However, the preamble to the interim final rule stated that if the employer was notified of a substituted test result prior to May 28, 2003, the employer should continue to consider the result a refusal to test.

    The DOT’s recently issued notice provides that employees may seek a reconsideration of their drug test results if certain conditions are met:

    1. The substitution/refusal to test determination was reported before May 28, 2003;

    2. The test had a creatinine concentration in the 2-5 mg/dL range and a specific gravity of less than or equal to 1.001 or greater than or equal to 1.020; and

    3. There exists credible medical documentation that the individual naturally produces urine specimens with creatinine concentrations and specific gravity in these ranges.

    NOTE: One example of what the DOT could consider credible medical documentation could be a controlled medical examination during which the individual produces the same result during a collection under direct observation. Another could include any subsequent required DOT drug test in which the individual demonstrated the ability to produce another urine specimen with creatinine concentration in the 2-5 mg/dL range and a specific gravity of less than or equal to 1.001 or greater than or equal to 1.020

    Employers who discover that a current employee, or an applicant or employee who is being hired or is transferring into a safety-sensitive function, was reported as refusing to test because of a substituted drug test result before May 28, 2003, may choose one or more of the following actions:

    Current Employers:

    1. The employer may inform employees that the DOT can reconsider their substitution/refusal results if they meet the three conditions outlined above.

    2. If an employer receives an inquiry regarding a previous employee and has written documentation that the DOT reconsidered the employee’s original refusal result, the employer should not report the refusal result on this test to the requesting employer.

    Employers Hiring or Transferring an Employee to a Safety-Sensitive Function:

    1. The employer may permit the employee to perform safety-sensitive functions if he or she has successfully completed the DOT return-to-duty process.

    2. The employer may inform the employee that he or she may submit documentation (see above) regarding the substituted test result to the DOT for reconsideration. The employer may permit the employee to perform safety-sensitive functions upon receipt of DOT documentation that the employee has been shown to naturally produce creatinine concentrations in the levels discussed above.

    3. If the employer receives written documentation from the DOT that the original results should not be considered substituted, the employer should attach that written documentation to the original substituted drug test result, as proof that the test should not be considered as substituted.

    The DOT’s notice does not require an employer to hire or fire any specific individual, but does give the employer these options so that it can make an informed decision. The new notice only applies to a small number of tests. Most refusals to test determinations prior to May 28, 2003 remain applicable.

    Submissions regarding refusals to test determination made prior to May 29, 2003 must be sent to the DOT no later than 6 months from the date of publication of the notice in the Federal Register, September 11, 2007.

  • Senate Considers Proposed Legislation Amending FMLA’s Hours of Service Requirements for Flight Crewmembers

    Senator Hillary Rodham Clinton recently introduced legislation in the Senate that would amend the Family and Medical Leave Act (FMLA) to include a special provision for calculating hours of service for flight attendants and flight crewmembers. See S. 2059, "Airline Flight Crew Technical Corrections Act" (Introduced Sept. 18, 2007). The legislation is a companion bill to the Airline Flight Crew Family and Medical Leave Act, H.R. 2744, introduced in the House of Representatives earlier this year.

    The bill provides that for the purposes of determining whether a flight attendant or flight crewmember meets the hours of service requirement set forth in the FMLA, "the employee will be considered to have met the requirement if the employee has been paid for at least 60 percent or has worked at least 60 percent of the employer’s monthly hour or trip guarantee, or the equivalent, annualized over the previous 12-month period."

    The term "employer’s monthly hour or trip guarantee" means the number of hours for which an employer has agreed to pay the flight attendant or flight crewmember, regardless of the actual number of hours worked.

    Both the Senate and House bills are currently in committee; no major action has been taken on either the piece of legislation. It is unclear whether the legislation will pass and, if so, in what form. Accordingly, we do not recommend that airline employers change the way they calculate hours of service for flight attendants and other flight crewmembers at this point. We will continue to keep you up to date on the status of this legislation.

  • Recent Election Results

    Skywest Airlines

    ALPA lost an election to represent pilots. Out of 2611 eligible, there were 904 votes for ALPA and 7 votes for other. Dismissal November 7, 2007.

    Pinnacle Airlines

    TWU won an election to represent flight dispatchers. Out of 38 eligible employees there were 18 votes for TWU and 11 votes for the Pinnacle Dispatcher & Sector Supervisor Association. Certification October 18, 2007.

    Omni Air International

    IBT won an election to represent Flight Deck Crew Members. Out of 224 eligible employees there were 94 votes for IBT and 53 write-in votes. Certification October 26, 2007.

    Colgan Air, Inc.

    ALPA lost an election to represent Pilots. Out of 308 eligible employees there were 148 votes for ALPA and 3 votes for other. Dismissal August 22, 2007.

    Southern Air, Inc.

    The NMB certified Southern Air Crew Group (SACG) as the representative of Cockpit Crew Members based on signed authorization cards. Out of 186 eligible employees there were 147 valid authorizations. Certification September 12, 2007.

  • Airline Management Letter: Now Electronic

    Ford & Harrison is updating the format of the Airline Management Letter, which will now be sent electronically directly to your e-mail inbox. We will no longer distribute hard copies of the newsletter. To ensure that you continue to receive the Airline Management Letter, please send your e-mail address to agarrison@fordharrison.com.