There has been a dispute that has been escalating for some time, which could impact California-based airline pilots and flight attendants. This lawsuit goes back about five years. With the Supreme Court just denying the cert (i.e. the lower court’s decision stands), it seems likely that this is about to be implemented.
This is going to be very difficult for the airlines to balance. I’ve written about this many times before, but it seems the airlines realistically have no other way to try to overturn this decision.
Who should regulate California-based airline crews?
In 2016, California-based Virgin America flight attendants sued the airline, arguing that California employment laws were being violated. Specifically, it revolved around the requirement that workers be free from all duties for 10 minutes every four hours and given a 30-minute meal break once every five hours, including during flights.
Even though Virgin America no longer exists (the airline was acquired by Alaska Airlines), this lawsuit has worked its way through the court system ever since. In 2021, the 9th US Circuit Court of Appeals in San Francisco ruled in favor of airline employees. The airline industry is strongly opposed to this law and has tried to get the Supreme Court to hear this case (although that is not happening now).
No one is denying what the laws are in California, but it comes down to which organization should regulate airline crews. In general, rules regarding crew rest are set by the Federal Aviation Administration (FAA). The airline industry argues that since deregulation, the authority of the FAA has outpaced state efforts to oversee airlines.
The two parties to this dispute
I think the position of flight attendants is pretty obvious. Other people working in California (including airline ground workers) get some minimal breaks, so I can understand how flight attendants and pilots think they should too. They make a sacrifice being away from home, so why should they sacrifice breaks too?
But the position of the industry is also quite logical:
- It sets quite a precedent if individual states all set their own rules for airline crew breaks, rather than mandating them at the federal level, as this would significantly complicate operations; 19 states have some kind of meal and rest break laws, so balancing all of those laws would be very, very complicated
- It is claimed that these changes could cost the industry between $3.5 billion and $8.5 billion a year and would force airlines to raise airfares (I don’t buy those numbers, personally, and I think the airlines will rather be more creative with crews)
- In reality, this would likely be bad for California-based employees, as airlines would likely reduce their bases in California and crews based there would likely have different types of travel.
What makes this so complicated is that the FAA requires a certain number of flight attendants and pilots to always be “on duty” for safety reasons. Airlines generally operate at minimum levels. The reality is that flight attendants and pilots are not “actively” working many parts of the flight.
For example, flight attendants may do drink service, but then sit on their jump seat for a while. These flight attendants are technically not on break during this time as they need to be able to respond to emergencies etc.
By regulating breaks, airlines would potentially need to increase staffing levels on flights so that there are enough pilots and flight attendants for some crew members to be completely off duty for a period of time. It would be expensive no matter how you cut it.
The reality is that if this policy were put into practice, it would likely primarily limit opportunities for California-based crews. Airlines would change the way they recruit these employees, and I can’t imagine that would encourage airlines to hire California-based flight crews.
I know that at least one major US airline is putting in place plans to drastically change how crews would be registered if this becomes law, and that wouldn’t be good news for California-based employees.
The Supreme Court will not hear this case
As mentioned above, airlines have been trying to escalate this matter for a long time. Unfortunately, there is bad news for airlines on this front.
In a filing in late May, the Biden administration (including the US solicitor general) said California laws are not preempted by FAA authority to regulate aviation safety. In other words, the same laws should apply to airline crews as to other workers in California.
With that, the Biden administration had asked the Supreme Court to dismiss the airlines’ appeal, and also to deny it being sent to a lower court for further consideration. It has been argued that the airlines have not been able to sufficiently demonstrate that this change in policy will result in higher airfares and, therefore, an impact on consumers.
Yesterday the Supreme Court announced that it will not hear the case, meaning there are not many avenues left for airlines to protest the change. At this point, it is very likely that it will become law.
Here’s what Airlines For America, an airline industry trade group, had to say about the decision:
“We are disappointed that the Court has chosen not to consider the Bernstein case at this time and continue to believe that there are strong federal preemptive arguments to support the quashing of this case. The Court’s lack of a definitive answer does not resolve the conflict between state and federal laws, or between circuits, and will result in a patchwork of costly and conflicting state regulations, as at least 19 states have some form of meal- and- break laws. Although the Court did not take up this specific case, we expect that other cases involving state meal break laws will pose similar legal questions to the United States Supreme Court as Bernstein, and it will become increasingly clear that these laws affect airline prices, routes and services and should be anticipated.
At the end of the line
A court has ruled that California-based pilots and flight attendants should be entitled to more breaks, including a 10-minute break every four hours and a 30-minute meal break every five hours. The Biden administration supported that move and sided with labor groups. Now the Supreme Court has also revealed that it will not hear this case.
Although this seems reasonable at first glance, it will pose major challenges for airlines, if implemented. Either staff numbers would have to be increased for many flights operated by California-based crews, or airlines would simply need to use non-California-based crews for many flights.
Historically, it was simply the FAA that regulated airline crew rest requirements, so the precedent this sets is alarming, as it appears that individual states can now all regulate rules for airline crews aerial.
Look, I consider myself pretty liberal, but that sounds silly. The practical implications here are simply that many flying opportunities will be taken away from California-based crews, and they will instead be awarded to crews based elsewhere.
On top of all that, keep in mind that we are facing a major pilot shortage right now. So if airlines just adjusted staffing for California-based pilots, it would make the problem of flight delays and cancellations even worse.
What are your thoughts on this new rule for California-based pilots and flight attendants?