Airline Industry

Executive Summary: What employees qualify as “transportation workers” such that they are exempt from the Federal Arbitration Act (FAA)? The Second Circuit endeavored to answer that question on May 5, 2022, in an important case for employers. Bissonnette v. LePage Bakeries Park St., LLC (2d Cir. 2022). Although the decision included quite a bit of dictum (discussion not essential to the holding), the court ultimately concluded that deliverers of baked goods did not qualify for the transportation worker exemption, and the plaintiffs’ claims were subject to arbitration under the FAA.

Do an airline’s ramp workers qualify as “transportation workers” exempt from the Federal Arbitration Act (FAA)?

On November 2, 2021, the Federal Aviation Administration (FAA) published a Notice of Proposed Rulemaking (NPRM) regarding flight attendant duty period limitations and rest requirements. The NPRM was mandated by the FAA Reauthorization Act of 2018, 49 U.S.C. §44701, Note at Section 335. In the FAA Reauthorization Act of 2018, Congress required the FAA to conduct rulemaking to increase to 10 hours the minimum rest period for flight attendants in domestic, flag, and supplemental operations who are scheduled for a duty period of 14 hours or less, and to prohibit the reduction of the rest period under any circumstances.

Executive Summary: The Federal Aviation Administration (“FAA”) has published a final rule to transition from the Pilot Records Improvement Act (“PRIA”) to the electronic Pilot Records Database. The rule is effective August 9, 2021.

Acclaimed actor Samuel L. Jackson put it best when he exclaimed in a 2006 film: “Enough is enough.  I have had it with these [expletive] snakes on this [same expletive] plane.”  With its final rule under the Air Carrier Access Act, entitled “Traveling by Air with Service Animals,” the

Executive Summary: On October 11, 2019, a federal judge for the U.S. District Court for the Western District of Washington ruled that Washington state’s paid sick leave law does not violate the Constitution or federal preemption law, thereby guaranteeing sick leave benefits for airline flight crew employees based in Washington.

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.

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.

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.

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.

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.

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.

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.

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).

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.