About 1,400 flight attendants for Virgin America Inc. secured class certification from a California federal judge Monday in their suit accusing the airline of shorting them on wages for time spent before and after flights, in violation of state law.
The order from U.S. District Judge Jon S. Tigar certifies a class of around 1,400 California-based flight attendants who worked for the airline since March 18, 2011. It also certified a California resident subclass and a waiting time penalties subclass for individuals who have left the job since March 18, 2012.
Virgin had argued against certification, saying that California wage law couldn’t apply extraterritorially. But Judge Tigar said this issue only applies to the resident subclass, and while the law is unsettled as to whether California wage and hour laws apply to the work of California residents who have temporarily left the state as part of their job duties, members can recover unpaid wages for time worked within California.
“For this reason, and because every member of the California resident subclass is also a member of the proposed class, the court therefore finds that class certification is appropriate now,” Judge Tigar wrote. “If the court later determines that members of the California resident subclass can only recover if their primary job situs is in California, the court can feasibly identify those subclass members who have a right to recover by looking to Virgin’s business records.”
The flight attendants claim Virgin doesn’t pay them for time spent before, after and between flights; writing up incident reports; while they are training; or when they are undergoing required drug tests. They also allege Virgin doesn’t allow flight attendants to take meal or rest breaks, failed to pay overtime and minimum wages, and didn’t provide accurate wage statements.
Attorney Monique Olivier of Duckworth Peters Lebowitz Olivier LLP, who represents the flight attendants, said that many flight attendants at other airlines are unionized, while the Virgin workers are not.
“They don’t have the union protection flight attendants at other airlines have, they only have the protection of the law,” she told Law360 in a phone interview. “We feel strongly that California law is on our side and flight attendants shouldn’t have the experience of not getting paid for time they’re doing work.”
Virgin’s compensation policies pay flight attendants for what is called “block time,” which covers the period between leaving and arriving at the gate, Judge Tigar’s order said in describing the history of the case. It does not compensate for work performed outside of this time, which includes pre-flight briefings, boarding passengers and deplaning, according to the order.
However, the company does compensate for 30 minutes of drug screening time no matter how long the test takes, as well as four hours of pay for airport reserve shifts where they are not assigned to a flight, though those shifts can last up to six hours, the judge’s order said.
After the flight attendants filed suit last year in San Francisco, the case was removed to federal court in May 2015. In September, Virgin argued against class certification, saying the flight attendants hasn’t satisfied numerosity, typicality or adequacy requirements.
But on Monday, Judge Tigar said that class treatment is superior to other alternatives and cited the plaintiffs’ proposed trial plan as a means to make the case more manageable.
“They have proposed a manageable three-stage trial plan that would adjudicate Virgin’s liability, class members’ individual damages, and finally any derivative claims,” the judge wrote. “Courts have found phased trial plans that bifurcate liability and damages to be manageable in similar circumstances.”
The order also certified Duckworth Peters Lebowitz Olivier and Kosinski + Thiagaraj LLP as class counsel, and a trio of named plaintiffs as class representatives.
The judge additionally denied a motion to strike from Virgin that sought to nix a report from a certified public accountant that the flight attendants used in their motion.
Olivier told Law360 that while there are other unpaid wage suits by flight attendants, this is the first to see certification.
This article appeared in Law360