Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

Labor-Law Conflicts for Flight Crews Add to Airlines’ Covid Woes

Feb. 14, 2022, 10:00 AM

Major airlines including Delta Air Lines Inc., American Airlines Inc., and United Airlines Inc. say a knot of conflicting state, local, and federal requirements governing pay and working conditions for their flight crews are an existential threat to their bottom lines that adds to strains from the Covid-19 pandemic.

A case before the U.S. Supreme Court poses the question of whether a California law guaranteeing rest breaks to flight crews should take precedence over looser federal regulations. The justices asked the U.S. Solicitor General to weigh in, after balking on the question in recent years. That dispute follows a recent wave of battles in courts and state legislatures around the country, including in Washington State, Illinois, Massachusetts, and New York.

The battles add to the tension in an industry that’s had to cancel thousands of flights due to labor shortages, as flight crews combat high rates of infection and deal with passengers who refuse to comply with federal mask mandates.

“The pandemic-induced labor shortage is exacerbating the issue,” said Sarah Pierce Wimberly, who co-leads FordHarrison LLP’s airline service group. “If you now need extra pilots and flight attendants on your plane to accommodate state meal and rest break regulations, but you already are challenged finding enough pilots and flight attendants to operate your normal schedule, how are you going to do that?”

Airline Uncertainty

Flight crews and certain other transportation workers operate under some rules unique to them. For example, they fall under the Railway Labor Act, which specifically governs labor relations in the railroad and airline industries.

Where federal law and collective bargaining agreements fall silent, some workers have said state law should fill in the gaps on issues affecting crew scheduling and time off.

“These are cases where you have workers challenging the right to have provisions that have been put in place in states that aren’t available through federal rights,” said Sara Nelson, president of the Association of Flight Attendants union.

“They want to say they aren’t subject to any state law provisions. They say they are exempt, but they are wrong, and meanwhile the issues still exist. How do you solve the problems in your workplace?”
A worker in California, for instance, must be given periodic 10 to 30 minute breaks, which may require the airline to have more workers on staff to comply. In other cases, how sick leave is calculated and accrued has been a sticking point. Those issues and others can then create conflicts with minimum federal requirements for air-crew staffing, to the point flights have to be canceled.

“From the perspective of airlines, it’s a big deal. Pilots and flight attendants fly across state lines every day, thousands of times a day if it’s a large airline,” Wimberly said. “Complying with laws in all of the states is administratively impractical and operationally impossible.”

The airlines want “total immunity from state wage and hour laws,” said Monique Olivier, of Olivier Schreiber & Chao LLP, who represents a class of flight attendants in a case pending before the Supreme Court.

“This is a coordinated approach to get it before a conservative friendly court. It kicks up all these issues about federalism and states rights,” Olivier said. “When you are up in the air, there has been a question about what law applies. The suggestion from the airline industry is that the sky is falling and if the rulings were permitted to stand, the airlines would go out of business. That was not really legally accurate.”

Association of Flight Attendants-CWA International President Sara Nelson testifies about the current state of the U.S. airline industry before the Senate Commerce, Science, and Transportation Committee on Dec. 15., along with (L-R) Southwest Airlines CEO Gary Kelly, United Airlines CEO Scott Kirby and Delta Air Lines Executive Vice President John Laughter.
(Photo by Chip Somodevilla/Getty Images)

High Court

The Supreme Court recently signaled interest in taking up a U.S. Court of Appeals for the Ninth Circuit case, which found that Virgin America Inc. was subject to California meal and rest break requirement that aren’t preempted by the Federal Aviation Act or the Airline Deregulation Act.

The justices declined to hear arguments in an appeal filed by Delta, where flight attendants alleged that the airline’s pay formula failed to award them credit for all hours on duty, and sought to apply state law to their claims. United Airlines brought a similar case and lost at the California Supreme Court.

The high court also declined to take up the state law versus federal preemption question, including in an Alaska Airlines case against a Washington sick leave law and a SkyWest Airlines case from the Seventh Circuit that allowed a wage-and-hour class action to move forward.

Airlines for America, the U.S. Chamber of Commerce, and a coalition of Republican-led states urged the justices to settle the question. U.S. airline employees operate in a unique national airspace system, providing service across the country and around the globe, said Airlines for America spokeswoman Katherine Estep.

“This is why we continue to oppose a patchwork of policies that require employees be treated differently based on the state in which they live or work, rather than their experience or duties,” Estep said in a statement. “Furthermore, varying policies across state lines can cause delays, diversions or cancellations, creating unnecessary disruptions for passengers.”

State Battles

While the issue hasn’t yet made it before the Supreme Court, there have been lawsuits percolating in courts in recent years, particularly with laws that aim to increase sick and paid leave. The Ninth Circuit in May set a precedent to allow a Washington state sick leave law to apply to flight crews, denying a challenge from Airlines for America.

The industry trade group attempted to block airline workers’ access to sick leave because of the Airline Deregulation Act, the broad federal law that bars any state regulations “related to a price, route or service of an air carrier,” as well as a violation of the commerce clause of the U.S. Constitution.

Delta convinced a federal judge that a New York City sick leave law, passed in 2014, was preempted by federal law. The judge in September said the airline already operates with similar paid sick leave requirements and the additional mandate would force the airline to conform to numerous state laws. He said state requirements would impose administration burdens.

The airline industry group also sued Massachusetts over its sick leave law, and that case is pending in federal court.

In Illinois, state lawmakers extended sick leave protections to airline workers, who had previously been exempted from the law. The change in October 2021 followed aviation unions advocating for the fix. The Illinois law allows workers to use sick leave to care for family members. Aviation corporations had lobbied to exclude airline workers from the original law, arguing exemptions under the Railway Labor Act.

Nelson, of the flight attendants’ union, said sick leave, in particular, demonstrates the importance of the issue for the workers.

“There has been a shared dialogue in the airline industry across the board,” she said. “And we’re talking about it as an issue that we can relate to at the same time. Because of Covid, the airlines can’t isolate people on this issue.”

To contact the reporter on this story: Erin Mulvaney in Washington at

To contact the editors responsible for this story: Bernie Kohn at; Jay-Anne B. Casuga at