September 7, 2018
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division. Nos.
l:15-cv-02036 & l:15-cv-11117 - John J. Tharp, Jr.,
WOOD, Chief Judge, ROVNER, and Brennan, Circuit Judges.
Brennan, Circuit Judge.
case, a number of current and former flight attendants
challenge an airline's compensation policy of paying for
their work in the air but not on the ground.
Plaintiffs-appellants ("the Flight Attendants") all
work or worked for defendant-appellee SkyWest Airlines, Inc.,
an airline owned by co-defendant-appellee SkyWest, Inc.
(collectively "SkyWest"). The Flight Attendants
filed suit alleging violations of the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq.
("FLSA"), and various state and local wage laws,
seeking to certify a class of similarly situated SkyWest
employees. The district court dismissed the complaint in its
entirety, finding that the Flight Attendants had failed to
allege a FLSA violation, and that the dormant Commerce Clause
barred the state and local claims.
Flight Attendants plausibly allege they were not paid for
certain hours of work. We agree with other federal circuits,
however, that under the FLSA the relevant unit for
determining a pay violation is not wages per hour, but the
average hourly wage across a workweek. Because the Flight
Attendants failed to allege even a single workweek in which
one of them received less than the federal minimum wage of
$7.25 per hour, we affirm the dismissal of those claims.
not agree, though, with the application of the dormant
Commerce Clause in this case. States possess authority to
regulate the labor of their own citizens and companies, so we
apply that doctrine sparingly to wage regulations. The
dormant Commerce Clause does not preclude state regulation of
flight attendant wages in this case, particularly when the
FLSA itself reserves that authority to states and localities.
Accordingly, we reverse the dismissal of the state and local
wage claims and remand for further proceedings.
appeal is from a dismissal on the pleadings, so we recount
the facts as alleged in the complaint, resolving all
reasonable inferences in favor of the Flight Attendants.
Sloan v. Am. Brain Tumor Ass'n, 901 F.3d 891,
893 (7th Cir. 2018).
an airline headquartered in St. George, Utah, charters planes
for other airlines. SkyWest employs over 2, 600 people as
cabin crew, and either currently employs or formerly employed
the eight plaintiffs-appellants in this case.SkyWest flight
attendants are based out of airports in ten different states,
including these Flight Attendants' home states of
Arizona, California, Illinois, and Washington. A new flight
attendant at SkyWest earns $17.50 per hour, and wages
increase with experience.
flight attendant's typical workday is long and varied,
including time onboard the aircraft as well as in airports
before, between, and after flights. SkyWest Flight attendants
are paid only for their time in the air, known in the
industry as "block time." The amount of block time
worked in a given day is much shorter than the "duty
day." The eight Flight Attendants each pleaded,
with varying specificity, times during which they were not
paid for portions of their duty days. For example,
plaintiff-appellant Stover alleged a two-week period in
October 2012 during which she was paid $656.25 for 86.07
hours of duty time, resulting in an average hourly wage of
$7.62 per hour. In contrast, plaintiff-appellant Lozano
alleged only that he worked many hours of duty time and
included no wage-specific information. The common thread
underlying the various Flight Attendants' allegations,
though, is that none of them alleged a single workweek in
which they were paid, on average, less than $7.25 per hour,
the federal minimum wage under FLSA, 29 U.S.C. §
Hirst, Stover, and Stroble Sze sued in March 2015 in the
Northern District of Illinois alleging that SkyWest violated
the FLSA and the Illinois Minimum Wage Law by failing to pay
minimum wage. Several months later, plaintiffs-appellants
Tapp, Sitavich, Hudson, Colson, and Lozano filed a similar
action in the Northern District of California under the FLSA
and state and local minimum wage laws and ordinances in
California, Arizona, and Washington. Both complaints sought
class certification of nationwide, state, and local classes.
The two cases were consolidated in the Northern District of
allowing multiple amended complaints and limited discovery,
the district court dismissed all of the Flight
Attendants' claims with prejudice. The court determined
that, in assessing violations of the federal minimum wage, an
employee's wage is calculated as the average hourly wage
across the workweek. Because none of the Flight Attendants
pleaded a single workweek in which they were paid an average
wage of less than $7.25 per hour, the court concluded they
had not properly pleaded a FLSA violation. The district court
also held that their state and local wage claims were
preempted by the dormant Commerce Clause. Applying the
approach the Supreme Court delineated in Pike v.
Bruce Church Inc., 397 U.S. 137 (1970), the
district court ruled that requiring SkyWest to comply with
state and local wage laws would impose too great of an
administrative burden. The court reasoned that, with flight
attendants flying to and from different states and cities all
day, as well as flying over many more, the burden on SkyWest
would be "clearly excessive in relation to the putative
local benefits." Pike, 397 U.S. at 142;
Nat'l Solid Wastes Mgmt. Ass'n v. Meyer, 63
F.3d 652, 657 (7th Cir. 1995) (same). The Flight Attendants