Posted October 12th, 2021.
By Daniela Porat
From undergoing airport security screenings to regularly working in multiple jurisdictions, airline industry workers face a host of unusual circumstances, and recent rulings on paid sick leave, meal breaks and more showcase these particularities of working in the aviation industry.
These cases deal with typical wage and hour disputes that are complicated by the not-so-typical workplace — an airport terminal or a plane crossing borders.
“Working for an airline brings up unique issues in law,” said Michael Palmer, a partner for worker-side firm Sanford Heisler Sharp LLP. “But employees still need to be properly compensated under both federal and state laws.”
Here, Law360 explores four recent decisions from the airline industry and what they mean for wage and hour litigation.
‘Mystified’ 11th Circ. Says Compensable Idle Time is Compensable Meal Time
A split Eleventh Circuit opinion concerning whether a security company could lawfully deduct pay for in-flight meal breaks opens with the line: “This is an unusual case.”
Akal Security Inc. transports immigrant detainees and enlists security officers on those flights to maintain safety. The case centered on so-called empty return legs, in which officers, not needing to supervise detainees, can sleep, play video games or watch TV, according to the opinion.
Although the officers were generally paid overtime for those return flights, the company deducted one hour’s pay for meal breaks when flights lasted longer than 90 minutes — an action the panel ruled violated the Fair Labor Standards Act.
One interesting aspect of this decision is that the majority opinion placed the burden of proof on Akal to show that a meal break was taken, said Palmer of Sanford Heisler.
U.S. Circuit Judge Kevin Newsom wrote Sept. 30 that “a burden-shifting scheme applies in meal-break cases,” and once an employee shows that logged hours were compensable, “the employer bears the burden of proving that the carved-out meal periods were bona fide.”
Palmer said the ruling also importantly serves as a “cautionary tale” against employers implementing automatic pay deductions.
The decision was ultimately made once Akal made the “inconsistent argument” that the idle time on the return flights was compensable except for the meal breaks for which the employer had no documentation, said Rafael Nendel-Flores, a member at management-side firm Clark Hill PLC.
“The court went out of its way to point it out multiple times and almost seemed mystified by the position that the employer took,” he said.
What employers should take away from this decision: Don’t do automatic deductions and have employees document their meal periods.
“I think the biggest theme of this case is that doing auto deducts for meal periods is just fraught with risk,” Nendel-Flores said. “Employers should seriously consider not doing that.”
The case is Elliott Gelber et al. v. Akal Security Inc., case number 18-14496, in the U.S. Court of Appeals for the Eleventh Circuit.
NYC Sick Time Law No-Go for Delta Air Lines Flight Crew
A New York federal court “struck the right balance” when it determined that the New York City Earned Sick Time Act violated the preemption provision of the federal Airline Deregulation Act, said William Anthony, a partner at management-side firm Blank Rome LLP.
Delta Air Lines had sued the city claiming its sick leave ordinance as applied to Delta flight crews overstepped federal law barring state or local regulations “related to a price, route or service of an air carrier.”
“I kind of felt like [the court was] trying to balance the employee’s rights with the rights of a broader group,” Anthony said, comparing flight crews who might not be performing that much work in New York City against passengers and other workers who could be potentially disrupted by this statute.
Notably, the court said it disagreed with a recent Ninth Circuit decision that “a state or local law is preempted only when it ‘binds’ an airline to a particular price, route, or service,” according to U.S. District Judge I. Leo Glasser’s Sept. 30 opinion.
An underlying issue in this case is a common question facing all employers during the pandemic, which is which employment law applies to remote workers in multiple jurisdictions, Anthony said.
“If states and localities where airports are based are going to start enacting labor laws that impact the service to that extent, it’s going to cause even more of a loss, and more of a burden on our country,” he said. “I do think that the Supreme Court or Congress is going to just revisit that preemption provision.”
The case is Delta Air Lines v. Department of Consumer Affairs, City of New York et al., case number 1:17-cv-01343, in the U.S. District Court for the Eastern District of New York.
9th Circ. Says TSA Security Checks Aren’t Company Time
Whether screenings constitute compensable work time is standard wage and hour litigation fare, but a case brought by a worker for the Admirals Club in Los Angeles International Airport concerned a federally mandated Transportation Safety Administration security check.
In Cazares v. Host International Inc. , the Ninth Circuit on Aug. 18 made a critical distinction between security checks required by the federal government and those mandated by a private employer, said Nendel-Flores, the Clark Hill attorney.
In this instance, the screening could not be considered hours worked because the employer did not have control over the worker, a key concept under California labor and employment law, Nendel-Flores said.
Another concept to consider when determining if a screening constitutes hours worked is whether the check is for the benefit of the employer, and the Admirals Club employees “couldn’t argue that somehow the employer in this case benefited from these workers going through the TSA security checkpoints,” he said.
Palmer cautioned against the idea that a government requirement will always mean time spent in a screening is not compensable because there are other factors to consider, as might be the case with COVID-19 screenings.
“I wouldn’t want to recommend to an employer that they’re in the clear just because the government mandates it,” he said. “They may be, but there is a difference … when the check is being done by the employer and it’s done on the employer’s property.”
The case is Jesus Cazares v. Host International Inc., case number 20-55803, in the U.S. Court of Appeals for the Ninth Circuit.
‘Amusing’ Arguments Don’t Fly for Federal Preemption
A Ninth Circuit panel rebuffed industry lobbying group Airlines for America’s arguments that Washington state’s paid sick leave law violates the Airline Deregulation Act, ruling May 21 that the law does not specifically “regulate the airline-customer relationship.”
Both airline and trucking industry groups and companies are hoping similar issues of federal preemption over local wage and hour laws will be addressed by the U.S. Supreme Court this term.
“I think that they should have done a little bit more of an analysis,” Blank Rome’s Anthony said, because the Ninth Circuit essentially said if it’s a general law, “we’re going to leave it up to the companies to figure it out.”
Pushing back against the idea that a law is not preempted because of its general applicability or because it has a tenuous connection to the airline industry can be challenging, Nendel-Flores said.
“If a state legislature decided to pass a statute that capped airline fares, for example, that clearly would be granted under the statute … because that’s a direct impact on price,” he said.
But for labor and employment laws, it is often hard to prove the direct connection between those rules in question and airline service, prices and routes, Nendel-Flores said.
The court didn’t give much weight to the argument about the law’s potential effect on interstate commerce, particularly the group’s concern about delays, Nendel-Flores said, finding it somewhat “amusing” that the court said airline delays are built into the system.
“I think again the subtext there was,” Nendel-Flores said, “you guys are complaining about delays but you guys have delays all the time that are completely unrelated to complying with a paid sick leave statute.”
The case is: Air Transportation Association of America v. Washington Department of Labor and Industries et al., case number 19-35937, in the U.S. Court of Appeals for the Ninth Circuit.
–Editing by Abbie Sarfo.