Airline Industry

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.

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.

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.

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.

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).