WASHINGTON (Legal Newsline) - The Biden administration has opposed U.S. Supreme Court review of an appellate decision enforcing California wage-and-hour rules for flight attendants, even as it acknowledges it would be impossible for airlines to comply with the section of the law allowing employees to leave the premises during meal breaks.
Virgin America and Alaska Airlines have appealed a Ninth Circuit Court of Appeals decision upholding parts of a $78 million verdict in favor of employees who say they were denied rest breaks while their planes were in California airspace. The airlines argue they can’t comply with California law while also following federal regulations requiring flight attendants to be on duty the entire time a plane is in the air.
The Ninth Circuit declined to address the conflict between state and federal law involving breaks, which under California law requires employees to be “free to leave the premises.” The airlines argue it is physically impossible to comply with that part of the law and even providing time off duty would require them to alter flight patterns or add unnecessary staff, both of which would affect pricing and availability of flights. The federal Airline Deregulation Act prohibits state interference in fares and routes.
The Supreme Court asked for the U.S. Solicitor General’s opinion on whether to grant certiorari and in a brief filed May 24, the government said this case isn’t appropriate for review. In what is becoming a familiar pattern, the Biden Administration’s top lawyer switched the government’s position from when the case was at the Ninth Circuit, when the Trump administration argued in favor of the airlines. Now, the government says, the Ninth Circuit decision was flawed in some respects but isn’t the proper vehicle for deciding the question of how to resolve conflicts between state and federal law.
“Petitioners do not identify any decision of this court or another court of appeals that conflicts with the decision below,” Solicitor General Elizabeth Prelogar wrote, joined by lawyers for the Federal Aviation Administration and Transportation Department.
The Biden administration also flipped its position on Roundup litigation, opposing Bayer’s appeal of a decision that would effectively require the company to place cancer warnings on the herbicide even though federal law prohibits it because the government doesn’t consider the product dangerous.
In the airline case, the Solicitor General acknowledged tension between California law requiring employees to be free to go where they want during meal breaks and FAA rules requiring them to be on duty the entire time passengers are on board. But the government said the Supreme Court could resolve it by denying certiorari and sending the case back for further review.
The FAA requires all flight attendants be identified in advance and remain on call to respond to emergencies. That would “effectively prevent any in-flight meal or rest break from satisfying the requirements of California’s meal- and rest-break laws for those flight attendants,” the government said. “Assigning extra flight attendants would be superfluous and thus unnecessary.”
Nineteen states including Georgia, Alaska, Florida, Ohio and Texas filed a brief supporting the airlines, saying the Ninth Circuit decision “guarantees a patchwork of inconsistent standards across the country, which is exactly what Congress meant to prevent” by passing the ADA.
The Supreme Court has repeatedly ruled the law prohibits state laws that have a “significant impact” on fares and routes. But the Ninth Circuit has carved its own path with a stricter rule that state laws must “bind” airlines to a particular price, route or service. That interpretation is opposed by four other federal circuits.
In the Virgin America case, the Ninth Circuit cited its own decision in an earlier case involving truckers operating within California. The trucking industry was also deregulated under a slightly different federal law and the appeals court said if intrastate truckers could comply with California labor law, the court ruled, airlines with California-based flight crews or operating within the state could as well.
The airlines warn that if they lose this case, California will be able to impose its labor rules on other employees including pilots, driving up fares and reducing the availability of flights for state consumers.