Bernstein v. Virgin Am., Inc.

• Decision Date: 05 January 2017
• Docket Number: Case No.15–v–02277–JST
• Citation: 227 F.Supp.3d 1049
• Parties: Julia BERNSTEIN, et al., Plaintiffs, v. VIRGIN AMERICA, INC., Defendant.
• Court: U.S. District Court — Northern District of California

227 F.Supp.3d 1049

Julia BERNSTEIN, et al., Plaintiffs,

v.VIRGIN AMERICA, INC., Defendant.

Case No.15–v–02277–JST

United States District Court, N.D. California.

Signed January 5, 2017

Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, Alison L. Kosinski, Emily Ann Thiagaraj, Kosinski & Thiagaraj, LLP, San Francisco, CA, for Plaintiffs.

Jennifer Adkins Tomlin, Nancy Villarreal, Morgan, Lewis & Bockius LLP, Palo Alto, CA, Robert Jon Hendricks, Morgan, Lewis & Bockius LLP, San Francisco, CA, for Defendant.

ORDER REGARDING MOTION FOR SUMMARY JUDGMENT

Re: ECF No. 97

JON S. TIGAR, United States District Judge

Before the Court is Defendant Virgin America's motion for summary judgment. ECF No. 97. The Court will deny the motion in part and grant the motion in part.

I. BACKGROUND

The Plaintiffs are flight attendants who currently work or have previously worked for Defendant Virgin America, Inc. ("Virgin"). In this class action against Virgin, the Plaintiffs allege that Virgin did not pay them for hours worked before, after, and between flights; time spent in training; time on reserve; time spent taking mandatory drug tests; and time spent completing incident reports. See First Amended Class Action Complaint, ECF No. 32 ¶¶ 28-41. The Plaintiffs further allege that Virgin did not allow flight attendants to take meal or rest breaks, failed to pay overtime and minimum wages, and failed to provide accurate wage statements. Id .

A. Factual Summary

1. The Parties

Virgin is an airline company that is headquartered in Burlingame, California. Depo. of Valerie Jenkins, ECF No. 44–1 at 71:4.¹ Virgin trains its flight attendants in California, and it has received millions of dollars from the State of California to do so. ECF No. 101, Exs. 1–11. Many of Virgin's flights either arrive to or depart from a California airport. ECF No. 101–13. In fact, Virgin estimates that, since 2011, the average daily number of its flights that depart from a California airport has never been less than 88.6 percent. ECF No. 101–26 at 9.

Plaintiffs Julia Bernstein, Esther Garcia, and Lisa Marie all previously worked for or currently work for Virgin as flight attendants. ECF No. 50–17, Exs. 23–25. Each of the Plaintiffs provided Virgin with a California address and each of the Plaintiffs were based out of either San Francisco International Airport or Los Angeles International Airport during the course of their employment with Virgin. Id . The Plaintiffs' flight schedules show that they sometimes worked entire days on consecutive flights between California airports. See ECF No. 101–17.

2. Flight Attendant Scheduling Terminology and Responsibilities

Virgin schedules its flight attendants to fly "pairings," a series of flights over a series of continuous days that depart and return to the airport out of which flight attendants are based. ECF No. 44–1, Ex. 1 at 4:10–16; ECF No. 44–1, Ex. 2 at 59:6–13. Each pairing consists of one or more "duty periods." ECF No. 44–1, Ex. 1 at 5:18–25. Virgin's Work Rules require that each flight attendant report for duty one hour before the departure of her first scheduled flight of the day. ECF No. 45–2, Ex. 8 at 31. After they check in for duty, flight attendants must travel to the departure gate of their first flight and be onboard the flight no less than forty-five minutes before the scheduled departure. ECF No. 46–2 at 18. They must also attend two pre-flight briefings, greet and assist passengers in boarding, and generally prepare the cabin for departure. ECF No. 47–2 at 131–134; ECF No. 47–2 at 143–146. "Block time" is the amount of time within a duty period from when an aircraft pushes back from the gate ("block out") at its departure city to when the aircraft arrives at the gate ("block in") at its destination. ECF No. 50–2 at 6:11–21, 8:13–21. Once the flight arrives at its destination, flight attendants help passengers deplane and check the cabin for items left onboard. ECF No. 47–2 at 177. Flight attendants are not released from duty until fifteen minutes after their last scheduled flight of the day. ECF No. 45–3 at 2. Sometimes a flight attendant will need to travel as a passenger on a flight to arrive at an airport for an assigned flight. This time spent traveling is referred to as "deadheading."

When a flight attendant works a subsequent flight in a duty period, the time between the block in of the first flight and block out of the second flight is referred to as "turn time." As with the first flight of the day, flight attendants must report for duty at the second flight's departure gate and be onboard that flight forty-five minutes before the scheduled departure. ECF 47–2 at 129. Flight attendants remain on duty during turn time. ECF No. 44–1 at 93:13–20.

3. Virgin's Policies Regarding Compensation and Breaks

Virgin's InFlight Work Rules outline its detailed compensation policies for flight attendants. ECF Nos. 45–46, Exs. 8, 9, 10. And Virgin's Crew Pay Manual is used by Virgin's payroll department to process flight attendant compensation. ECF No. 47–3, Ex. 12.

Pursuant to those policies, Virgin uses a credit-based system to compensate its flight attendants. ECF No. 45–4 at 12–13. That system does not directly compensate flight attendants for all hours on duty. ECF No. 47–3 at 8 ("Even for flying activity, crewmembers are not paid for time ‘on the clock’ (duty time); instead, they are typically paid only when the aircraft is moving (block time)."). Flight attendants receive an hour of credit for each hour of block time, fifty percent of block time for time spent deadheading, and a minimum of 3.5 hours of "minimum duty period credit" for duty periods in which the flight attendant does not earn at least 3.5 hours of credit from block time and/or deadheading. ECF No. 45–4 at 12–13. Virgin's system does not directly compensate duty hours that do not fall into one of these three categories (e.g. pre– and post-block duty time and turn time between flights). See id .

Virgin does, however, pay flat rates for some non-flight activities. For example, it pays flight attendants thirty minutes of pay for drug testing, regardless of the duration of the drug test. ECF No. 47–5 at 7. Virgin also pays a flat monthly rate for initial flight attendant training, irrespective of the actual hours worked by flight attendants during this training. ECF No. 45–4 at 24. Virgin pays flight attendants 3.5 hours of pay for annual training even though those trainings last at least eight hours. ECF No. 45–4 at 16; ECF No. 101–20 at 2; see also , e.g. , ECF No. 50–17 ¶ 22. Virgin pays flight attendants four hours of pay for airport reserve shifts in which they are not assigned to a flight, even though those shifts can last up to six hours. ECF No. 47–5 at 9. If a flight attendant is assigned a flight during their reserve shift, they are paid for half of the total time spent on reserve plus that flight's block time. Id . Virgin's compensation policy does not provide credit for time spent completing incident reports, which Plaintiffs testify they were unable to complete during time for which they are compensated due to their job duties (e.g. block time). ECF No. 50–17 ¶ 16.

Per Virgin's policies, crew leaders provide rest and meal periods for flight attendants. ECF No. 50–13 at 22. However, Virgin admits that, although its flight attendants have the opportunity to take breaks, they are still on duty throughout the entirety of a flight. ECF No. 71 at 15; ECF No. 44–1 at 96:1–6. Many flight attendants claim that they are unable to take breaks on flights. See, e.g., ECF No. 50–17, Ex. 23, ¶ 18. Approximately one-hird of Virgin's daily flights since 2011 have been longer than five hours in duration. ECF No. 101–26 at 6–8.

Virgin's wage statements do not indicate the duty period hours worked or the block hours worked. ECF No. 50–2, Ex. 1 at 34:19–21, 36:17–24; ECF No. 101–23, 101–24, 101–25.

B. Procedural History

The Plaintiffs commenced this action in state court, and Virgin removed it to federal court pursuant to the diversity jurisdiction provision of the Class Action Fairness Act ("CAFA"). ECF No. 1.

Plaintiffs bring claims under the California Labor Code and California Industrial Welfare Commission Wage Order 9–2001 ("Wage Order") for failure to pay minimum wage, failure to pay overtime wages, failure to pay wages for all hours worked, failure to provide required meal periods, failure to provide required rest periods, failure to provide accurate wage statements, failure to pay waiting time penalties to discharged employees, failure to indemnify all necessary business expenditures, and derivative claims under California's Unfair Competition Law ("UCL") and the Private Attorney General Act ("PAGA"). ECF No. 32.

On November 7, 2016, this Court certified the following Class and Subclasses under Rule 23(b)(3):

Class : All individuals who have worked as California-based flight attendants of Virgin America, Inc. at any time during the period from March 18, 2011 (four years from the filing of the original Complaint) through the date established by the Court for notice of certification of the Class (the "Class Period").

California Resident Subclass : All individuals who have worked as California-based flight attendants of Virgin America, Inc. while residing in California at any time during the Class Period.

Waiting Time Penalties Subclass : All individuals who have worked as California-based flight attendants of Virgin America, Inc. and have separated from their employment at any time since March 18, 2012.

See ECF No. 104. The Class claims are limited to time worked within California. ECF No. 70 at 10. However, both the California Resident Subclass and the Waiting Time Penalties Subclass seek to recover wages for time spent working within and outside California. Id .

Virgin now moves for summary judgment. ECF No. 97.

II. JURISDICTION

Pursuant to the Class Action Fairness Act ("CAFA"), the Court has jurisdiction over this case, as a class action in which a member of the class...