NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIR TRANSPORT ASSOCIATION OF No. 19-35937
AMERICA, INC., DBA Airlines for
America, D.C. No. 3:18-cv-05092-RBL
Plaintiff-Appellant,
MEMORANDUM*
v.
THE WASHINGTON DEPARTMENT OF
LABOR AND INDUSTRIES; JOEL
SACKS, in his official capacity as Director
of the Department of Labor and Industries,
Defendants-Appellees,
ASSOCIATION OF FLIGHT
ATTENDANTS - COMMUNICATION
WORKERS OF AMERICA, AFL-CIO,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted November 17, 2020
Submission Vacated November 19, 2020
Resubmitted May 11, 2021
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOULD and FRIEDLAND, Circuit Judges, and BOUGH,** District
Judge.
The Air Transport Association (d/b/a “Airlines for America” or “A4A”) has
brought this action against Washington’s Department of Labor and Industries
(“L&I”), seeking to enjoin enforcement of Washington’s law governing paid sick
leave, Wash. Rev. Code § 49.46. 210 (2021).1 A4A argues that applying the paid
sick leave law (the “PSL”) to its members’ flight attendants and pilots (“flight
crew”) is preempted by the Airline Deregulation Act, 49 U.S.C. § 41713, and
violates the dormant Commerce Clause.2 The parties filed cross-motions for
summary judgment, and the district court granted L&I’s motion. We affirm.
In 2016, voters in Washington enacted a ballot initiative that established a
right to paid sick leave “to protect public health and allow workers to care for the
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
1
A4A is a trade association that represents U.S. air carriers Alaska,
American, Atlas, Delta, FedEx, Hawaiian, JetBlue, Southwest, United, and UPS.
The Association of Flight Attendants-Communication Workers of America, AFL-
CIO, intervened as a Defendant to represent the interests of its members. In
addition, eighteen states and the District of Columbia filed a brief as amici curiae
in support of L&I. Alaska Airlines filed a brief as amicus curiae in support of
A4A.
2
Although the PSL took effect 2018, A4A’s counsel stated that Alaska
Airlines—which is possibly the only airline to which this law applies, see infra—is
not complying with the PSL as to flight crew. L&I has not initiated any
enforcement actions against A4A’s members, despite their lack of compliance,
because it has not received any formal complaints.
2
health of themselves and their families.” Wash. Rev. Code § 49.46.005. The PSL
requires that employers provide Washington-based employees at least one hour of
paid sick leave for every forty hours worked. Id. § 49.46.210(1)(a). In addition,
the law prohibits employers from penalizing employees for using sick leave—such
as through a disciplinary point system—or requiring medical verification for sick
leave absences of fewer than three days. Id. § 49.46.210(3); Wash. Admin. Code
§ 296-128-660(1).
A4A argues that compliance with the PSL will deprive the airlines of their
“most important” tools for minimizing flight crew shortages, including disciplinary
point systems and medical verification requirements, thereby causing flight delays
and cancellations. In support, A4A points to Virgin America’s experience
complying with New York City’s Earned Sick Time Act (“ESTA”), which
contains provisions similar to those in the PSL.3 A4A’s expert estimated that
Virgin America’s compliance with the ESTA led to a “cabin crew delay rate”
increase of .16 percent for the first two years and 1.2 percent for the seven months
thereafter.
1. The Airline Deregulation Act (“ADA”) does not preempt the application
3
Because A4A appeals from the district court’s order granting summary
judgment to L&I, we view the facts and the reasonable inferences drawn from
them in the light most favorable to A4A. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
3
of the PSL to A4A’s members’ flight crew. The ADA preempts state laws “related
to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b). State laws that
affect rates, routes, or services in “too tenuous, remote, or peripheral a manner” are
not preempted. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390 (1992)
(quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983)). We have
held that generally applicable labor regulations are too tenuously related to
airlines’ services to be preempted by the Act. See Ward v. United Airlines, Inc.,
986 F.3d 1234, 1243 (9th Cir. 2021) (“Laws that apply to airline employees only as
they apply to all members of the general public typically fall into th[e] non-
preempted category.”). The PSL is no exception.
A4A argues that, unlike the wage statement law at issue in Ward, the PSL
“operates in close proximity to the traveling public.” The proper inquiry is
whether the PSL itself “binds the [airlines] to a particular price, route, or service.”
Bernstein v. Virgin Am., Inc., 990 F.3d 1157, 1169-70 (9th Cir. 2021) (quoting
Dilts v. Penske Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014)). The PSL
regulates the airline-employee relationship in a way that may ultimately affect the
airlines’ competitive decisions in the free market. But because the PSL does not
regulate the airline-customer relationship or otherwise bind the airlines to a
particular price, route, or service, it is not preempted by the ADA. See Air Transp.
Ass’n v. City & County of San Francisco, 266 F.3d 1064, 1074 (9th Cir. 2001).
4
2. As applied to A4A’s members’ flight crew, the PSL does not violate the
dormant Commerce Clause. To survive L&I’s motion for summary judgment,
A4A must show that there is a genuine issue of material fact as to whether
complying with the PSL would impose a “substantial burden on interstate
commerce,” and if so, whether the burden on interstate commerce would be
“clearly excessive in relation to the putative local benefits.”4 Nat’l Ass’n of
Optometrists & Opticians v. Harris, 682 F.3d 1144, 1155-56 (9th Cir. 2012) (citing
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). Viewing the evidence in
the light most favorable to A4A, we hold that the evidence does not demonstrate
that requiring A4A’s members to comply with the PSL would impose a substantial
burden on interstate commerce.
A4A argues that Virgin America’s experience complying with the ESTA
shows that complying with the PSL would increase unexpected employee
absences, which would result in increased flight delays and cancellations. Even
assuming that complying with the PSL would lead to the same result for A4A’s
members that Virgin America experienced complying with the ESTA, A4A’s
expert’s conclusions are insufficient to raise a genuine issue of material fact. A 1.2
percent increase in flight delays—with many of those delays lasting fewer than
fourteen minutes—is not a substantial burden on interstate commerce for dormant
4
The parties agree that the PSL is not facially discriminatory.
5
Commerce Clause purposes, particularly for an industry that anticipates delays at
much higher rates under ordinary circumstances. A4A’s other arguments about the
effects of complying with sick leave policies in other states fail for the same
reason, and they are based solely on anecdotes.
Separately, A4A argues that complying with multiple states’ paid sick leave
laws would be impossible or prohibitively expensive for its members. We rejected
a similar argument in Ward. We explained that “[t]o prevail on this contention,”
airlines must show that the challenged law “regulates in an area that requires
national uniformity.” Ward, 986 F.3d at 1242. Like the wage statement laws at
issue in Ward, paid sick leave laws are not among the “aspects of the interstate
transportation industry that require national uniformity.” Id. Although A4A has
submitted evidence that complying with paid sick leave laws may result in some
increase in flight delays and cancellations, this evidence falls short of
demonstrating that complying with the PSL will “severely disrupt operation of
interstate transportation.” Id.; see also Bernstein, 990 F.3d at 1165.
Furthermore, the PSL’s limited scope undermines A4A’s argument as to the
impossibility of complying with multiple paid sick leave laws. The PSL only
applies to “Washington-based employees” of employers “doing business in
Washington.” An L&I official testified that flight crew members who are not
“based” at a Washington airport and who have no relationship with Washington
6
other than flying in and out of the state are “unlikely to be Washington-based
employees.” Based on this testimony, we deduce that the PSL primarily—or
perhaps solely—applies to employees of Alaska Airlines, which is headquartered
in Washington and is the only A4A member airline that has an airport “base” in the
state.5 A4A does not present any concrete examples of Alaska Airlines employees
who would be covered by multiple paid sick leave laws if the A4A’s members’
were to comply with the PSL. To the extent that Washington-based flight crew are
determined to be covered by multiple jurisdictions’ laws, an airline could avoid
potential concerns by choosing to comply with the law that imposes the strictest
requirements. See Ward, 986 F.3d at 1242.6
AFFIRMED.
5
In an amicus brief, Alaska Airlines states that it has hundreds of employees
who live in Washington and are based in other states, and vice versa. But this
information fails to demonstrate that any of these employees would actually be
subject to multiple states’ laws.
6
According to A4A, adopting the strictest paid sick leave law to avoid a
conflict would violate the dormant Commerce Clause by allowing states to regulate
beyond their borders. “Our circuit’s law casts doubt on the continued viability of
the broad extraterritoriality principle” that A4A invokes. Ward, 986 F.3d at 1240.
But even if the extraterritoriality principle were to apply here, it would not be
violated because the PSL applies only to “Washington-based” employees of
employers “who are doing business in Washington.” See id. at 1240-41 (holding
that “even under a broad understanding of the extraterritoriality principle,”
California’s application of its wage statement law to flight crew who were
California-based was sufficiently strong to pass constitutional muster).
7