California-Based mostly Flight Attendants Are Protected by California’s Additional time and Meal/Relaxation Break Requirements

While the recent Ninth Circle decision in Bernstein v Virgin America, Inc. et al., ___ F.3d ____, 2021 US App. LEXIS 5197 (9 Cir. February 23, 2021) gave airlines some profits. Air carriers employing California-based flight crew members are now practically forced to abide by the state’s strict wage and hourly laws – even if crew members question most of their work outside of the state.


Amber is a class action lawsuit filed by flight attendants for Virgin – a former California airline – alleging the airline violated California wage and hour laws. The main question was whether California’s wage and hour laws were applicable. The class members, all of whom were California residents, spent approximately 31.5% of their time working within the California borders. No class member spent more than 50% of their time in any other state, nor did they work in any other state more than in California.

Last year, the California Supreme Court ruled that flight attendants from two major commercial airlines were entitled to California-compliant detailed pay slips and timely payment of wages according to the state’s timing requirements. See Ward v United Airlines, Inc., 9 Cal. 5th 732 (2020); Oman v Delta Air Lines, Inc., 9 Cal. 5th 762 (2020). In that ruling, the Supreme Court ruled that the payroll and timing of state wage laws would apply to flight crew and other interstate transport workers if the employees either: (1) did most of their work in California; or (2) do not do most of their work in a single state, but do some work in California and The state serves as the home base. (See FH Legal Alert, July 2, 2020.) The Supreme Court also ruled that one of the airline’s block time compensation plans for flight attendants does not violate the state’s minimum wage standards.

Based on last year’s Supreme Court ruling, the Ninth Circle found last month in both Ward and Oman that the same airlines couldn’t avoid allegations of breach of these laws and referred the cases to theirs respective district courts to determine the appropriate relief. In making this decision, the Ninth Circle rejected arguments put forward by the airlines that compliance with state law would violate the dormant trade clause or be precluded by the Airline Deregulation Act or the Railway Work Act.

In his case, Virgin also argued a federal requirement to avoid applying California’s wage and hour laws – specifically state standards for meals and rest breaks. Similarly, she attempted to overturn the district court’s ruling that its block-time compensation plan violated the state’s minimum wage law.

The blocking period-based payment scheme complies with California law

Virgin paid its flight attendants based on “(1) block time worked each day of the mating; (2) Deadheading block time [traveling between airports to reach an assigned flight];; and (3) up to 3.5 hours of minimum duty if a flight attendant’s blocking time did not exceed a total of 3.5 hours in a day. “

Following the decision of the California Supreme Court in Oman v Delta Air Lines, 9 Cal. 5. 762 (2020), the Ninth Circle joined Virgin in asserting that its block-time-based payment scheme does not violate California Minimum Wage Act. While pay was not specifically tied to each hour of work, the Ninth Circle believed that the payment system was in accordance with California law as long as guaranteed compensation is provided for each period of service and rotation.

Over time

on Sullivan’s decision against Oracle, 51 Cal. 4. In 1191 (2011) it was Golden State law that non-residents who work in California for a California-based employer are protected by the California Overtime Act. However, Sullivan left unanswered the question of whether the state’s overtime standards apply to residents who work for a California-based employer outside of California. In line with the political rationale behind the Sullivan case, the Ninth Circle noted that California overtime rules also apply to non-state work in California – the time flight attendants did not work within California’s borders – and stated that without them, ” the state’s key policy goals of protecting health and safety and preventing the evils of congestion would be thwarted.

Food and rest breaks

Similarly, the Ninth County also expanded Sullivan’s involvement to conclude that California meal and rest laws apply to residents working for a California-based employer outside of California.

The Ninth Circuit also determined that the meal and rest law was not affected by field, conflict, or express exemptions under the Federal Aviation Act or the Airline Deregulation Act. As with overtime pay, the court found that meal and rest requirements are designed to prevent “the evils associated with overwork”.

Virgin argued that meal and rest breaks are detrimental to flight safety, as California prohibits employers from assigning duties to an employee who is on a meal or break, and a flight attendant cannot be completely dismissed from duty in-flight. However, the Ninth Circuit found that “this connection is far too difficult to support field prevention for California needs.”

The Ninth Circle also noted that conflict prevention does not preclude the application of meal and rest requirements. Conflict prevention only applies if compliance with federal and state regulations is physically impossible. The Ninth Circuit stated that it is “physically possible to comply with federal regulations prohibiting service longer than fourteen hours,” and California meal and rest requirements.

In determining that “Congress did not intend to prevent general government transportation, safety, welfare, or business rules that do not otherwise govern prices, routes, or services,” the Ninth Circle also rejected Virgin’s argument that those involved with the Compliance-Related Costs Have Risen California’s meal and rest requirements are sufficient to relate to prices, routes, or services.

Pay slips and waiting time penalties

California payroll laws apply to workers who do most of their work in California. However, if they are not doing most of their work in a state, they are insured if they are a California resident for work purposes. See Ward v United Airlines, Inc., 9 Cal. 5th 732 (2020).

While the California Supreme Court in Ward made it clear that the California start of work presentation is one way a plaintiff might be a California resident, the Ninth Circle noted that it is not the only way. The Ninth Circle stated that a flight attendant “whose pairings begin and end in New York, but include flights departing from California, would likely still present herself in the middle of the pairing to begin work in California, when she arrived at the airport that flight. “

The determination that both the waiting penalties (if an employer does not promptly pay all wages due to dropping off work is liable for waiting penalties under California Labor Law) and the payroll requirements are related to a specific item, Must Have Employer The Ninth Circuit announced to the employee that California’s laws on payroll and waiting times for flight attendants apply in Virginia.


Despite Bernstein, questions remain regarding the application of the state’s law to non-California employers. The ruling also raises the practical question of how and when the state’s laws would apply to non-resident workers of non-California employers. Unless the ruling is later overturned by the Supreme Court because Bernstein – along with earlier rulings from that state – unceremoniously dismissed arguments based on conflicts with federal law, airlines that are not California residents with California flight crew members must ensure this You have a system and policy in place to comply with California overtime, meal and rest breaks, pay slips, and final wage laws.

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