There’s a dispute that has been escalating for quite some time, which could impact airline pilots and flight attendants based in California. This lawsuit dates back roughly five years. With the Supreme Court having just denied cert (meaning the decision from the lower court stands), it seems likely that this is about to be implemented.
This is going to be very tricky for airlines to balance. I’ve written about this a couple of times before, but it seems that airlines realistically have no further avenues to try and get this overruled.
In this post:
Who should regulate California-based airline crews?
In 2016, California-based Virgin America flight attendants sued the airline, arguing that California’s employment laws were being broken. Specifically, this revolved around the requirement that workers be free from all job duties for 10 minutes every four hours, and get 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 legal system since then. In 2021, the 9th US Circuit Court of Appeals in San Francisco ruled in favor of airline employees. The airline industry is heavily opposed to this law, and has been trying to get the Supreme Court to hear this case (though that won’t be happening now).
No one denies what the laws are in California, but what this boils down to is what organization should regulate airline crews. Generally speaking, rules around crew rest are set by the Federal Aviation Administration (FAA). The airline industry argues that ever since deregulation, the FAA’s authority pre-empts states’ efforts to oversee airlines.
The two sides to this dispute
I think the stance of flight attendants is pretty obvious. Other people working in California (including ground-based airline employees) receive certain minimum breaks, so I can appreciate how flight attendants and pilots feel that they should as well. They make a sacrifice by being away from home, so why should they also sacrifice breaks?
But the industry’s stance also makes quite a bit of sense:
- It sets quite a precedent if individual states all set their own rules for airline crew breaks, rather than them being federally mandated, since that would complicate operations significantly; 19 states have some sort of meal and rest break laws, so balancing all of those laws would be very, very complicated
- It’s claimed that these changes could cost the industry between $3.5-8.5 billion per year, and would cause airlines to raise airfare (I don’t buy these numbers, personally, and think airlines will instead just get more creative with crewing)
- In reality this would probably be bad for California-based employees, as airlines would likely reduce their bases in California, and crews based there would likely get different kinds of trips
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 staff flights at minimum levels. The reality is that flight attendants and pilots aren’t “actively” working for many parts of the flight.
For example, flight attendants might do a beverage service, but then sit in their jumpseat for some amount of time. Those flight attendants aren’t technically on a break during that time, as they need to be able to respond to emergencies, etc.
By regulating breaks, airlines would potentially need to increase staffing on flights so that there are enough pilots and flight attendants for some crew members to be fully off duty for some amount of time. This would be costly, no matter how you slice it.
The reality is that if this policy is put into practice, it would probably primarily limit opportunities for California-based crews. Airlines would change how they roster these employees, and I can’t imagine this would incentivize airlines to hire California-based flight crews.
I know at least one major US airline is putting plans in place to radically change how crews would be rostered if this becomes law, and it wouldn’t be good news for California-based employees.
The Supreme Court won’t hear this case
As mentioned above, airlines have been trying to escalate this case for a long time. Unfortunately there’s bad news for airlines on this front.
In a filing in late May, the Biden administration (including the US Solicitor General) stated that California’s laws are not pre-empted by the FAA’s authority to regulate airline safety. In other words, the same laws should apply to airline crews as to other workers in California.
With this, the Biden administration had asked the Supreme Court to deny the appeal of airlines, and also to deny this being sent back to a lower court for further consideration. It was argued that airlines haven’t sufficiently been able to show that this policy change would lead to an increase in airfare, and therefore impact consumers.
Yesterday the Supreme Court announced that it won’t be hearing this case, meaning that there aren’t many pathways left for airlines to protest this change. At this point it’s very likely that this becomes law.
Here’s what Airlines For America, an airline industry trade group, had to say about this ruling:
“We are disappointed the Court chose to pass on reviewing the Bernstein case at this time and continue to believe there are strong federal preemption arguments to support reversal in this case. The lack of a definitive answer from the Court does not resolve the conflict between state and federal law, 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-rest-break laws. While the Court did not take this specific case, we expect that other cases involving state meal-and-rest-break laws will present the U.S. Supreme Court with similar legal questions to those in Bernstein, and it will be increasingly clear that these laws affect airlines prices, routes and services and should be preempted.”
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 backed this ruling, and sided with labor groups. Now the Supreme Court has also revealed that it won’t hear this case.
While that seems reasonable on the surface, this will pose major challenges for airlines, if implemented. Either staffing would need to be increased for many flights operated by California-based crews, or airlines would just need to use crews not based in California for many flights.
Historically it has simply been the FAA that has regulated airline crew rest requirements, so the precedent this sets is alarming, as it sounds like individual states can now all regulate rules for airline crews.
Look, I consider myself to be pretty liberal, but this just seems silly. The practical implications here are simply that a lot of flying opportunities will be taken away from California-based crews, and they’ll instead be assigned to crews based elsewhere.
On top of all that, keep in mind we’re dealing with a major pilot shortage right now. So if airlines actually did simply adjust staffing for California-based pilots, this would further exacerbate the issue of flight delays and cancelations.
What do you make of this new rule for California-based pilots and flight attendants?