Appeals panel: SkyWest flight attendants can resume part of lawsuit vs airline over shorted pay claims

By Scott Holland | Dec 18, 2018


A group of SkyWest flight attendants have been cleared to resume part of their longstanding complaint against the airline for allegedly paying them only for the time they spend on board their airplanes.

On Dec. 12, a three-judge panel of the U.S. Seventh Circuit Court of Appeals issued the decision in favor of the flight attendants in the dispute dating back 2015. Judges Diane Wood, Ilana Rovner and Michael Brennan heard arguments Sept. 7 in an appeal from a Nov. 30, 2017, decision in which U.S. District Judge John Tharp Jr. for the second time dismissed complaints against SkyWest. Brennan wrote the Dec. 12 opinion.

The underlying complaints alleged flight attendants effectively earned less than $7.25 per hour — as opposed to a purported $17 base wage — because the airline only paid them for time spent in the airplane with the cabin door closed. This system excluded pay for time spent on other tasks important or essential to their jobs, such as clearing airport security or reading and responding to emails containing information essential to their upcoming flights, the flight attendants argued.

The lead plaintiff in one action is Andrea Hirst, who filed her complaint in March 2015. The other, filed in November 2015 initially in San Francisco federal court, came from fellow lead plaintiff Cheryl Tapp. Both worked for SkyWest from 2010-2015.

The panel examined block time, the industry term for hours in the air, and noted those blocks are much shorter than an on-duty day, which covers report time and release time, or the span from clearing security and 15 minutes after the plane opens at a day’s final destination. It cited the example of one worker who said she was paid $656.25 for logging 86.07 hours of duty time during two weeks in October 2012, an hourly wage of $7.62.

Brennan explained that although the workers made plausible allegations they weren’t paid for certain hours, the relevant unit for determining a Fair Labor Standards Act pay violation isn’t wages per hour, but the average hourly wage across a workweek. Since no worker in either complaint specifically alleged even a single week in which they earned less than the federal minimum wage of $7.25, the panel affirmed dismissal of alleged FLSA violation.

However, the panel disagreed with Tharp’s determination the workers’ “state and local wage claims were preempted by the dormant Commerce Clause.” Tharp said forcing “SkyWest to comply with state and local wage laws would impose too great of an administrative burden,” per Brennan. However, he added, the airline didn’t make allegations that changing its payment policies would infringe on its ability to conduct interstate commerce.

“SkyWest is subject to many minimum wage laws that impose serious compliance costs,” Brennan continued. “But the existence of a great regulatory burden on an employer does not necessarily mean minimum wage laws have a discriminatory effect on interstate commerce.”

The panel cited its own opinion in a 1991 case, Milwaukee County Pavers Association v. Fiedler, that underscored Congress’ ability to authorize state actions that “are invulnerable to constitutional attack under the Commerce Clause,” while pointing out “the FLPSA contains such an express authorization.”

As such, the panel reversed Tharp’s dismissal of the state and local claims and remanded those matters for further proceedings.

The plaintiffs were represented by Greg Coleman Law P.C., of Knoxville, Tenn.; the Gibbs Law Group LLP, of Oakland, Calif.; Girard Gibbs LLP, of San Francisco; and Wexler Wallace LLP, of Chicago.

SkyWest was defended in the action by attorneys with the firms of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., of Charlotte, N.C., St. Louis and Chicago.

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Organizations in this Story

Gibbs Law Group Llp Girard Gibbs LLP Greg Coleman Law, PC Ogletree Deakins Nash Smoak and Stewart Skywest Airlines Inc. U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois Wexler Wallace LLP

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