The ever-present tug-and-pull between the federal and state government was recently encapsulated in a dispute between flight attendants employed by Alaska Airlines, Inc., the successor to Virgin America, Inc. (“Virgin America”).[i]Under Section 512(a) of the California Labor Code, “[a]n employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.”[ii] The Virgin America flight attendants filed suit against their employer, arguing that the protections afforded to them under California law were being violated since Virgin America failed to provide the required meal breaks.

As part of its defense, Virgin America argued that California’s labor laws did not apply to the airline. Instead, the airline duly complied with all federal laws and regulations regarding compensation and work requirements for its flight attendants.[iii] The crux of Virgin America’s argument lay in the fact that under the Airline Deregulation Act (“ADA”), “a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of an air carrier.”[iv] Virgin America argued that California’s rest-break requirement was preempted under the ADA. Therefore, the airline was not obligated to offer its flight attendants a thirty-minute break after working more than five hours. The airline further supported its preemption argument by highlighting how Federal Aviation Administration (“FAA”) guidelines have already addressed the issues of work times and rest breaks for flight attendants, such as by “prohibit[ing] duty periods of more than 14 hours, subject to certain exceptions, and require[ing] a 9-hour rest period after release from a duty period of 14 hours or less.”[v]

Although the trial court granted the plaintiffs’ motion for summary judgment concerning their claim for rest and meal breaks, when hearing the issue on appeal, the Ninth Circuit Court of Appeals stated that the issue of “FAA preemption of state meal and rest break requirements” had yet to be addressed by the circuit.[vi] However, the court performed a detailed examination of previous decisions in cases involving conflicts between state and federal aviation laws, ultimately finding that “Congress intended to occupy the field of ‘aviation safety,’” and as such, issues falling with such parameters were preempted under the doctrine of field preemption.[vii] For example, in Montalvo v. Spirit Airlines, the Ninth Circuit determined that matters concerning aviation safety were preempted by federal laws and regulations in response to “a series of fatal air crashes between civil and military aircraft operating under separate flight rules” and thereby finding it necessary for the FAA to regulate all actions and decisions “necessary for safety in air commerce and national security.”[viii] Similarly, in Ventress v. Japan Airlines, the Ninth Circuit “held that standards for pilots were also pervasively regulated because the FAA authorized the agency ‘to issue airman certificates to individuals who are qualified and physically able to perform the duties related to the certified position.”[ix]

Based on this analysis, for the court to have held in favor of Virgin America and thereby exempt it from complying with California labor laws, it would need to have held that the issue of meal and rest breaks fell beyond the purview of “aviation safety” as previously defined by courts throughout the circuit.[x] The court recognized that “field preemption under the FAA is not necessarily limited to state laws that regulate aviation safety,” but determined that “the federal regulation governing maximum duty periods for flight attendants [] does not resemble the type of comprehensive regulation or contain the pervasive language that we consider necessary to discern congressional intent to occupy the field.”[xi] Ultimately, although the issue of maximum duty periods for flight attendants is governed by federal regulations under 14 C.F.R. § 121.467, “it only discusses allowed duty period lengths” and was not sufficient to compel the court “to conclude that Congress left no room for states to prescribe meal periods and ten-minute rest breaks within the maximum total duty period allowed under federal law.”[xii] The court further agreed with the district court’s holding, stating that California’s labor laws were also not preempted under conflict preemption, since “airlines could comply with both the FAA safety rules and California’s meal and break requirements by ‘staff[ing] longer flights with additional flight attendants in order to allow for duty-free breaks.’”[xiii]

Having found that the California law did not conflict with any federal law or regulation, the court had to determine what class of airline employees were covered. The main divergence was between non-resident and resident California-based flight attendants. The court recognized the California Supreme Court’s position that “exclud[ing] nonresidents from the overtime laws’ protection would tend to defeat their purpose by encouraging employers to import unprotected workers from other states.”[xiv] As such, in order “to reconcile the Legislature’s express declaration that ‘all protections, rights, and remedies available under state law are available to all individuals who are or who have been employed, in this state,” the Ninth Circuit held that all California-based flight attendants were protected.[xv] Dissatisfied by the Court of Appeals’ holding, Virgin America sought to appeal the case to the United States Supreme Court. On August 19, 2021, Virgin America filed its petition for a writ of certiorari. Ultimately, however, on June 30, 2022, the Supreme Court denied Virgin America’s petition.[xvi]

While the Supreme Court’s decision not to hear the case may appear to end the conversation, nothing could be further from the truth. Instead, by denying the petition, the Supreme Court inadvertently opened a can of worms, resulting in significant confusion throughout the aviation industry. In essence, the uncertainty stems from the mixed-mode applicability of the Court of Appeals’ holding resident and non-resident California-based flight attendants must be provided a thirty-minute rest break after working more than five hours. However, this leaves out many flight attendants throughout the rest of the country. Furthermore, no rest period is required for those based out of any state other than California, since there is no federal law governing the matter. This, undoubtedly, results in a few significant but currently unanswered questions.

First, what impact will this have on the California labor market? Will airlines decide to minimize their crew bases in California to avoid complying with the law, or will they hire more flight attendants to compensate for the lost time caused by the rest breaks? Unfortunately, there is only a little room for speculation under this hypothetical since the results may already be observed. For example, in September 2022, American Airlines announced that it would be closing its flight attendant base at San Francisco International Airport, affecting over 400 employees.[xvii] Although the ruling is still in its early stages, it will not be surprising if other airlines follow American Airlines’ lead and begin to minimize or close crew bases throughout California. While airlines with large hubs throughout California airports are unlike to close those bases, such as United Airlines in San Fransisco, American Airlines in Los Angeles, or Southwest Airlines in Oakland, airlines with smaller crew bases throughout California may be motivated to transfer their bases to neighboring states.

The second question is, what will happen if other states implement similar laws? This will undoubtedly cause significant confusion amongst airlines and airline workers alike. Some states must adhere to certain labor requirements, while the rest will not. And lastly, may this result in a “race-to-the-bottom,” whereby states compete to loosen labor restrictions for cabin crew to entice airlines to establish crew bases in their states?

Unfortunately, none of the questions may be answered in the short term, and it will be years until the full scale of the Ninth Circuit’s decision may be appropriately analyzed. However, this should not diminish the real impacts already being felt throughout the aviation industry, and should serve as a significant reminder of the need for clear and definitive federal labor laws for airline personnel. Given the Supreme Court’s reluctance to hear the case, it is the responsibility of the federal government to enact meaningful legislation that defines the legal protections afforded to flight crews throughout the nation, regardless of the state in which they are based, and thereby preempt the states from implementing conflicting legislation. Such a nationwide application will primarily serve three advantages: (1) it will streamline labor laws throughout the aviation industry, thereby reducing the uncertainty created by different states implementing disparate requirements; (2) safety recommendations and regulations will be standardized; and (3) the incentive for airlines to close crew bases and transfer them to states with more amiable labor laws will cease.

[i] Bernstein v. Virgin America, Inc., 3 F.4th 1127 (9th Cir. 2021), cert. denied, 142 S. Ct. 2903 (2022).

[ii] Cal. Lab. Code § 512(a) (2022).

[iii] See Bernstein, 3 F.4th at 1133–34.

[iv] 49 U.S.C. § 41713(b)(1) (2022).

[v] Bernstein, 3 F.4th at 1138 (citing 14 C.F.R. § 121.467(b)(1)–(2) (2023)).

[vi] Id.

[vii] Id.

[viii] Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007).

[ix] Bernstein, 3 F.4th at 1139 (citing Ventress v. Japan Airlines, 747 F.3d 716, 722 (9th Cir. 2014)).

[x] See id.

[xi] Id.

[xii] Id.

[xiii] Id. at 1140.

[xiv] Bernstein, 3. F.4th at 1142.

[xv] Id. (citing Sullivan v. Oracle Corp., 254 P.3d 237, 241 (Cal. 2011).

[xvi] Virgin America, Inc. v. Bernstein, 142 S. Ct. 2903 (2022).

[xvii] Sergio Quintana, American Airlines Closing Flight Attendant Base at SFO, NBC Bay Area (Sept. 16, 2022, 12:56 AM), https://www.nbcbayarea.com/news/local/american-airlines-closing-flight-attendant-base-sfo/3004672/.