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Total Articles: 22

CARES Act Provides Support for Airline Industry

As previously announced, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which is a $2 trillion relief package aimed at helping mitigate some of the economic impact of the COVID-19 pandemic. As part of the Act, Congress provided relief for the aviation industry.

Airline Industry Alert: DOL Announces Meeting to Solicit Public Input on Aviation Act Whistleblower Protection Provision – AIR21

Executive Summary: On August 20, 2019, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced it will hold a meeting on October 8, 2019 in Washington, D.C., for the purpose of soliciting public comments from stakeholders on issues pertaining to whistleblower protections under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21”). This meeting will be the fourth in a series of meetings held by OSHA with the goal of seeking public comments and suggestions on ways it can improve whistleblower customer service and further the public’s understanding of the whistleblower laws.

U.S. Supreme Court Declines to Review Two Airline Industry Cases

Executive Summary: The United States Supreme Court recently denied petitions to consider two U.S. Court of Appeals decisions adversely affecting the airline industry. On June 24, 2019, the Justices declined to review a Seventh Circuit ruling that allowed flight attendants to sue an airline based on state and local minimum wage and employment laws. That same day, the Justices also decided not to disturb a Ninth Circuit ruling that the City of Los Angeles, as proprietor of the Los Angeles International Airport (LAX), could require airline service providers to accept contractual conditions in their licensing agreements, obligating service providers to enter a “labor peace agreement” with any employment organization that so requests. Both decisions adversely affect the airline industry by subjecting airlines and service providers to increasingly onerous state and local laws.

Airline Industry Alert: NMB to Hold Public Hearing on Proposed Rule to Simplify Process for Decertification of Labor Unions

Executive Summary: As previously reported, the National Mediation Board (“NMB”) issued a Notice of Proposed Rulemaking (“NPRM”) setting forth a proposal to amend its rules regarding the decertification of labor unions under the Railway Labor Act (“RLA”). On February 28, 2019, the NMB announced it will hold a public hearing for the purpose of soliciting the opinions of persons interested in the NMB’s proposed rule change. The hearing is scheduled for Thursday, March 28, 2019 from 10:00 AM until 4:00 PM and will take place in Training Rooms 2 and 3, located on the 1st Floor of the Pension Benefit Guaranty Corporation, 1200 K Street, NW, Washington, D.C., 20005.

Airline Industry Alert: NMB Announces Proposed Rule to Simplify the Decertification Process

Executive Summary: On January 31, 2019, the National Mediation Board (NMB) published a proposed rule and request for comments to amend its regulations to provide for decertification of labor unions. The NMB’s stated goal is to provide a “more straight-forward process” for decertification that puts employee efforts to decertify incumbent unions on “equal footing” with the process for union organizing. The proposed rule is available here.

#MeToo at 30,000 Feet: The Unique Challenges the Anti-Harassment Movement Poses for the Airline Industry

Executive Summary: The #MeToo movement has now touched nearly every U.S. workplace, and the airline industry is no exception. The impact of the anti-harassment movement on airlines, however, is unique because of the independent nature of much of its workforce and the highly regulated nature of the industry. Further, the work environment extends to the skies, and work time can include time spent off-duty on layovers.

Airline Industry Alert: NLRB Rules Aircraft Cleaners Are Not Subject to the Railway Labor Act

Executive Summary: On July 26, 2016, the National Labor Relations Board (NLRB) ruled that Menzies Aviation (USA), Inc. (Menzies) fell under its jurisdiction. In resolving a recurring dispute as to whether ground operations provided to air carriers by non-carriers fall within the jurisdiction of the NLRB or the National Mediation Board (NMB), the NLRB determined that the air carrier did not exercise sufficient control over Menzies' employees to find the company was subject to the Railway Labor Act (RLA). Because Menzies was not exempt from its jurisdiction, the NLRB directed an election among Menzies' cabin cleaner employees.

Eleventh Circuit Rejects Airline Deregulation Act Preemption Challenge To Living Wage Ordinance

Courts continue to wrestle with preemption issues, the tension between sweeping federal laws purporting to regulate an industry or industries and laws enacted at the local level, such as labor laws impacting labor costs. In the most recent example, the Court of Appeals for the Eleventh Circuit rejected a cargo airline’s argument that the Airline Deregulation Act of 1978’s mandate that states make no law impacting the “price, route or service of an air carrier,” preempts Miami-Date County’s living wage ordinance as applied to such carriers. Amerijet Int’l v. Miami-Dade County, 2015 U.S. App. LEXIS 16700 (11th Cir. 2015).

Airline Industry Alert: Court Finds Airline Deregulation Act Does Not Preempt Miami-Dade County's Living Wage Ordinance

Executive Summary: On September 21, 2015, the U.S. Court of Appeals for the Eleventh Circuit held that the Airline Deregulation Act (ADA) does not preempt Miami-Dade County's Living Wage Ordinance (LWO). Amerijet Int'l, Inc. v. Miami-Dade Cnty., No. 14-11401 (11th Cir. Sept. 21, 2015). This means that airlines that use the facilities of the Miami International Airport will have to comply with the LWO with regard to those employees who perform "covered services" for other airlines. The LWO remains inapplicable to airlines providing such services on their own behalf, however. The Eleventh Circuit joins the Ninth Circuit in interpreting the ADA's definition of "services" narrowly, perhaps setting the stage for Supreme Court review.

Airline Industry Alert: Court Finds Federal Law Preempts State Drug-Testing Law as Applied to Flight Attendant

Executive Summary: In a decision that is good news for airline employers, a federal trial court in Minnesota has held that the state drug-testing statute, which prohibits discharging an employee the first time the employee fails a drug test, is preempted by federal law and the Federal Aviation Administration's (FAA)'s drug testing regulations. See MN Airlines v. Levander (Dist. Minn. August 28, 2015).

Airline Industry Alert: Washington State Supreme Court Finds SeaTac Ordinance Increasing Minimum Wage to $15 an Hour Enforceable at Airport

Executive Summary: In a 5-4 decision, the Washington State Supreme Court has held that Proposition 1 – an ordinance which increased the minimum wage within the city of SeaTac for employees in the hospitality and transportation industries to $15 an hour – is also enforceable at the Sea-Tac Airport. Filo Foods, LLC v. City of SeaTac, (Wash. Aug. 20, 2015). This means that Proposition 1 may now be applicable to employees of airline service providers and, in certain circumstances, to employees of air carriers themselves, at the airport.

Airline Industry Alert: Ninth Circuit Reverses Status Quo Injunction against Airline

Executive Summary: In a unanimous decision, a panel of the United States Court of Appeals for the Ninth Circuit reversed a preliminary injunction arising out of an airline's alleged violation of the status quo provisions of the Railway Labor Act (RLA). Int'l Bhd. Of Teamsters, Airline Division v. Allegiant Air, LLC, No. 14-16465 (9th Cir. June 8, 2015). The decision turned on whether an in-house "advocacy group" with which the airline had dealt on issues involving its pilots had become the pilots' collective bargaining representative for purposes of the RLA, and whether work rules developed by the airline in coordination with the advocacy group constituted a "status quo" that the airline could not change unilaterally during its negotiations with the newly-certified representative of the pilots. The Ninth Circuit reversed the district court on both those points.

Airline Industry Alert: OT Class Action Against Southwest Airlines Fails to Take Off

Executive Summary: Airlines achieved a major victory on May 19, 2015, with an order from the Central District of California granting Southwest Airlines Co.'s motion to dismiss in McKinley v. Southwest Airlines Co., United States District Court, Central District of California Case No. 2:15-cv-02939-AB-JPR, finding the plaintiff's overtime claims to be preempted by the Railway Labor Act (RLA). Significantly, McKinley makes clear that when an employee's claims focus on or require extensive analysis of the terms of a Collective Bargaining Agreement (CBA), the appropriate course for a court is to divest itself of jurisdiction in order to avoid creating inconsistent interpretations regarding the terms of the CBA.

First Circuit Favors Broad Application of Analogue to Airline Deregulation Act Preemption Provision

On September 30, 2014, in Massachusetts Delivery Association v. Coakley, No. 13-2307 (September 30, 2014), the First Circuit Court of Appeals overturned a lower court’s refusal to preempt a Massachusetts independent contractor law under the express preemption provision of the Federal Aviation Administration Authorization Act (FAAAA). The FAAAA’s preemption provision, which prohibits state and local regulation related to prices, routes, or services of motor carriers, was substantially derived from the express preemption provision of the Airline Deregulation Act (ADA), which applies to air carriers. Courts regularly rely on cases decided under the FAAAA in interpreting the ADA preemption provision, and vice versa. Thus, the Massachusetts Delivery Association (MDA) case has significant implications for air carriers as well as motor carriers.

National Mediation Board Rejects Jurisdiction Over Airline Service Provider

On September 11, 2014, the National Mediation Board (NMB), in a split decision, refused to exercise jurisdiction over an airline service provider performing cabin cleaning services for American Airlines at John F. Kennedy International Airport. The decision in Airway Cleaners, LLC, 41 NMB 262 (2014), which was issued over the dissent of Republican Board Member Nicholas Geale, continues the Board’s recent trend away from its past practice of exercising jurisdiction over most airline service providers and potentially opens the door to increased unionization of airline service providers on a location-by-location basis.

Airline Industry Legal Alert: Ninth Circuit Hears Argument on Strike Injunction Against Non-Union Employees

Yesterday, Douglas Hall, a partner in the Airline Group of FordHarrison, appeared before an en banc panel of the Ninth U.S. Circuit Court of Appeals to defend an injunction obtained on behalf of Aircraft Service International, Inc. against a strike threatened by some of its non-union employees at the Seattle-Tacoma International Airport. The employees threatened to strike if the company did not immediately revoke the investigatory suspension of an ASIG employee and address alleged safety concerns. The strike was enjoined on the grounds that it would violate the RLA; that was affirmed by a 3-judge panel of the Ninth Circuit. The defendants petitioned for rehearing en banc, arguing that the RLA's dispute resolution procedures did not apply to non-union employees, and thus the Norris-LaGuardia Act prohibited the injunction.

Airline Industry Legal Alert: Ninth Circuit Finds FAA Preempts Safety-Related Wrongful Termination Claim

Executive Summary: The Ninth Circuit has held that the Federal Aviation Act (FAA) preempts state law wrongful termination claims where their resolution would require "the factfinder to intrude upon the federally occupied field of aviation safety by deciding questions of pilot medical standards and qualifications." Ventress v. Japan Air Lines, 2014 U.S. App. LEXIS 5821 (9th Cir. Mar. 28, 2014).

Supreme Court Finds Air Carrier Immune From Defamation Claim For Reporting Employee’s Outburst to TSA

On January 27, 2014, the Supreme Court of the United States reversed a nearly $1.2 million jury verdict for defamation against Air Wisconsin Airlines Corporation in a case surrounding the airline carrier’s report about a pilot to the Transportation Security Administration (TSA). The Court found the carrier immune, under the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44941, for making the report and held that the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) applies to the ATSA’s immunity exception. In analyzing the statements made by the airline to the TSA, the Court found that although company officials could have phrased their concerns more accurately, the statements were not materially false and thus did not result in the loss of the carrier’s immunity. Air Wisconsin Airlines Corp. v. Hoeper, No. 12-315, Supreme Court of the United States (January 27, 2014).

Senate Confirms Three National Mediation Board Nominees

Last night, the U.S. Senate confirmed a three-member slate of National Mediation Board (NMB) nominees, giving the NMB a full complement of members for the first time in over a year. The NMB is the federal agency that oversees airline and railroad labor relations and administers the Railway Labor Act (RLA).

March 2013 Airline Management Newsletter

On March 11, 2013, the National Mediation Board (NMB) published a Notice, 40 NMB No. 43, announcing changes to the Board's voting procedures and Representation Manual. Specifically, the Board announced

Airline Industry Legal Alert: DOL Issues Final FMLA Crewmember Regulations

Executive Summary: At long last the Department of Labor has issued final regulations implementing the Airline Flight Crew Technical Corrections Act (AFCTCA), which established new standards for airline flight crewmembers to qualify for FMLA leave.

News From Capitol Hill.

FMLA for flight crews.
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