Govt tells Supreme Court airlines must follow state wage laws

A Virgin America plane takes off from Los Angeles International airport (LAX) in Los Angeles, California, U.S. March 28, 2018. REUTERS/Mike Blake
  • Calif. law not preempted by federal airline regs, solicitor general says
  • Airlines say certain meal and rest breaks affect business
  • Trump administration had backed airlines

(Reuters) - The Biden administration has urged the U.S. Supreme Court to reject Virgin America Inc's appeal of a ruling that the company must comply with California wage laws, saying federal airline regulations do not supplant state requirements that apply to all employers.

U.S. Solicitor General Elizabeth Preloger in an amicus brief filed on Tuesday said California laws imposing a minimum wage and mandating meal and rest breaks are not preempted by the federal Airline Deregulation Act (ADA) because they do not affect the "prices, routes, or services" offered by airlines.

The ADA preempts state laws that seek to regulate airlines. But the 9th U.S. Circuit Court of Appeals last year said that does not extend to states' general employment laws, even if they have an incidental impact on airline operations.

In a 2015 lawsuit, a group of Virgin flight attendants accused Virgin of failing to pay them the minimum wage and overtime, providing meal and rest breaks and proper wage statements, per California law.

Virgin did not immediately respond to a request for comment.

Charles Cooper of Cooper & Kirk, who represents the plaintiffs, in an email said: "We are pleased that the solicitor general has, like us, concluded that the Ninth Circuit’s decision below is not in conflict with any decisions of the Supreme Court or another court of appeals and that Virgin’s petition should be denied."

The Supreme Court in January declined to take up a similar case involving Delta Air Lines Inc. But the court's November invitation for the solicitor general to weigh in on Virgin's case suggests the justices are interested in reviewing the issue.

Virgin was backed at the 9th Circuit by the Trump-era U.S. Department of Justice, which said California law conflicts with the ADA and airlines should be subject to uniform nationwide regulations.

But the solicitor general, an arm of DOJ, said in Tuesday's brief that Virgin can comply with both sets of laws.

At most, the case should be remanded to the 9th Circuit to take a closer look at whether California's meal and rest break requirements present an actual conflict with federal regulations, government lawyers wrote.

Virgin's petition for certiorari is backed by the U.S. Chamber of Commerce, airline trade groups and 19 Republican-led states.

The case is Virgin America Inc v. Bernstein, U.S. Supreme Court, No. 21-60.

For Virgin: Shay Dvoretzky of Skadden Arps Slate Meagher & Flom

For the plaintiffs: Charles Cooper of Cooper & Kirk

Read more:

SCOTUS won't decide if state wage laws cover flight attendants, for now

California wage law not pre-empted by federal airline regs: 9th Circuit

Virgin, DOJ tell 9th Circuit that California wage law preempted by federal airline regs

(NOTE: This article has been udpated to include a statement from Charles Cooper.)

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at