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Virgin America, Alaska Air Workers Get Partial Win in Wage Case

July 11, 2018, 3:07 PM

Virgin America Inc. and Alaska Air Group Inc. flight attendants who worked in California moved closer to a potential pay day on their wage claims after a federal district court judge said state law and its more generous pay requirements apply to the airline workers.

The flight attendants’ expert in the case estimates the claims could total more than $25 million, Monique Olivier of Olivier Schreiber & Chao LLP in San Francisco, one of the attorneys representing the Virgin America class, told Bloomberg Law in May.

The attendants weren’t paid for all of their hours and were denied overtime pay, meal and rest breaks, and accurate wage statements that are required under California law, the U.S. District Court for the Northern District of California ruled July 9. The court, which hasn’t established damages for the class of attendants, set an Aug. 1 conference to plan further proceedings in the lawsuit.

The court’s ruling doesn’t resolve the long-running lawsuit but marks a significant advance in a major case concerning the state law rights of airline employees. The airlines had argued that the U.S. Constitution and Federal Aviation Administration regulations pre-empt the application of California’s labor laws, which require time-and-a-half pay for more than eight hours worked in a day.

The Virgin America case is just one of several recent lawsuits in which airlines and flight attendants have divided over the reach of California law. Noting the disagreement, the U.S. Court of Appeals for the Ninth Circuit in May certified several questions about state law to the California Supreme Court. The Ninth Circuit asked the state court to clarify whether the state’s minimum wage law applies to all work performed in California for out-of-state airlines by employees who work in the state “only episodically and for less than a day at a time.” The federal appeals court also asked whether out-of-state employers are required to provide statements of employee wages to employees who only work briefly in California during a pay period covered by a wage statement. The state supreme court is expected to announce shortly whether it will provide answers to the Ninth Circuit’s questions.

In the Virgin America case, Judge Jon S. Tigar had already certified a lawsuit by Julia Bernstein and other employees as a class action and he rejected the airlines’ request that he decertify most of the flight attendants’ claims for class relief. Tigar said he had found that California-based employees who worked while residing in the state were entitled to be paid in compliance with the California Labor Code, and the airlines didn’t persuade him to reconsider his conclusions.

Tigar denied the employees’ request that he issue an injunction to prohibit violations of the state labor code. Tigar said he hadn’t received enough information about the policies and practices of Alaska Air to decide whether an injunction would be appropriate.

The court decertified the class action in part and declined to award relief to the employees based on their claims they weren’t properly paid for time spent completing incident reports. The employees supported that class-action claim with statements from a few flight attendants describing their personal experiences, but Tigar said the evidence wasn’t sufficient to demonstrate when the reports were prepared and how much time was typically spent on them.

The flight attendants are represented by Duckworth Peters Lebowitz Olivier LLP, Kosinski & Thiagaraj LLP, and Shepherd, Finkelman, Miller and Shah, LLP. Virgin America Inc. and Alaska Air Group are represented by Morgan, Lewis & Bockius LLP.

The case is Bernstein v. Virgin Am., Inc., N.D. Cal., Case No. 15-cv-02277-JST, 7/9/18.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story; Terence Hyland at