Andrea Hirst v. Skywest, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

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Nos. 17-3643 & 17-3660

ANDREA HIRST, et al.,

Plaintiffs-Appellants,

v.

SKYWEST, INC., et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 1:15-cv-02036 & 1:15-cv-11117 — John J. Tharp, Jr., Judge.

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ARGUED SEPTEMBER 7, 2018 — DECIDED DECEMBER 12, 2018

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Before WOOD, Chief Judge, ROVNER, and BRENNAN, Circuit

Judges.

BRENNAN, Circuit Judge. In this case, a number of current

and former flight attendants challenge an airline’s compensa-

tion 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

2 Nos. 17-3643 & 17-3660

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.

The 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 determin-

ing a pay violation is not wages per hour, but the average

hourly wage across a workweek. Because the Flight Attend-

ants 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.

We do not agree, though, with the application of the

dormant Commerce Clause in this case. States possess author-

ity 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 regula-

tion 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.

I. Background

This 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).

Nos. 17-3643 & 17-3660 3

SkyWest, 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 for-

merly employed the eight plaintiffs-appellants in this case. 1

SkyWest flight attendants are based out of airports in ten dif-

ferent 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.

A 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.” 2 The amount of block time worked in a given

day is much shorter than the “duty day.” 3 The eight Flight

Attendants each pleaded, with varying specificity, times dur-

ing 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

1 This consolidated suit was brought by plaintiffs-appellants Andrea

Hirst, Molly Stover, Emily Stroble Sze, Cheryl Tapp, Renee Sitavich, Sarah

Hudson, Brandon Colson, and Brüno Lozano.

2 As defined by the Flight Attendants, “block time” is the time be-

tween “block out” (when a flight attendant closes the main cabin door for

the aircraft to leave the gate) and “block in” (when an aircraft arrives at

the destination jet bridge and a flight attendant opens the main cabin

door).

3 As defined by the Flight Attendants, the “duty day” is the difference

between report time (the time at which a flight attendant must have

cleared security at the airport) and release time (fifteen minutes after the

cabin door opens at the day’s final destination).

4 Nos. 17-3643 & 17-3660

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. § 206(a)(1)(C).

Plaintiffs-appellants 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 Cali-

fornia 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 Illinois.

After allowing multiple amended complaints and limited

discovery, the district court dismissed all of the Flight Attend-

ants’ 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 aver-

age 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

Nos. 17-3643 & 17-3660 5

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 timely appealed.

II. FLSA Claims

First, the Flight Attendants challenge the dismissal of their

FLSA claims. We review an appeal from a motion to dismiss

de novo. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th

Cir. 2014).

FLSA 29 U.S.C. § 206 reads: “Every employer shall pay to

each of his employees who in any workweek is engaged in

commerce … not less than—$7.25 an hour.” The Flight

Attendants argue compliance with this provision should be

measured differently depending on the wage practices of a

given industry. They contend compliance for flight attendants

should be measured by “pairing,” or work trip out and back

from their base airport, instead of by workweek. SkyWest

points out that every other federal circuit to reach this issue

has applied the workweek measure to all industries, and

FLSA compliance should therefore be determined from the

average hourly pay over a given workweek.

The text of 29 U.S.C. § 206 does not state what measure

should be used to determine compliance with the minimum

wage, nor do any of the surrounding provisions provide guid-

ance. In light of this, we turn to the interpretation of the

6 Nos. 17-3643 & 17-3660

Department of Labor, the administrative agency charged with

overseeing the FLSA. “When Congress leaves an administra-

tive agency with discretion to resolve a statutory ambiguity,

judicial review is deferential.” Ali v. Mukasey, 521 F.3d 737,

739 (7th Cir. 2008) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc, 467 U.S. 837 (1984)). In 1940, less than two years

after the FLSA was enacted, the Department of Labor issued

a policy statement adopting the workweek as “the standard

period of time over which wages may be averaged to deter-

mine whether the employer has paid [the minimum wage].”

Wage & Hour Release No. R-609 (Feb. 5, 1940), reprinted in

1942 WAGE AND HOUR MANUAL (BNA) 185. While this policy

statement has never been codified into an official regulation,

to our knowledge and per the parties’ arguments, neither has

the Department of Labor ever deviated from this understand-

ing. Further, in the eighty years since the FLSA was passed,

Congress has never seen fit to amend the law to change this

understanding.

Other circuits have uniformly adopted the Department’s

per-workweek measure. See, e.g., Douglas v. Xerox Business

Services, LLC, 875 F.3d 884, 887–88 (9th Cir. 2017); Hall v.

DIRECTV, LLC, 846 F.3d 757, 777 (4th Cir. 2017); U.S. Dep't of

Labor v. Cole Enterprises, Inc., 62 F.3d 775, 780 (6th Cir. 1995);

Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357

(8th Cir. 1986); Olson v. Superior Pontiac-GMC, Inc., 765 F.2d

1570, 1576 (11th Cir. 1985), modified on other grounds, 776 F.2d

265 (11th Cir. 1985); Dove v. Coupe, 759 F.2d 167, 171–72 (D.C.

Cir. 1985); Blankenship v. Thurston Motor Lines, 415 F.2d 1193,

1198 (4th Cir. 1969); United States v. Klinghoffer Bros. Realty

Corp., 285 F.2d 487, 490 (2d Cir. 1960). We see no reason to

deviate from the Department’s interpretation or the consen-

sus of other federal appellate courts. Therefore, we adopt the

Nos. 17-3643 & 17-3660 7

per-workweek measure for determining compliance with

29 U.S.C. § 206, without industry-specific carveouts.

We now apply the per-workweek measure to the plead-

ings before us. To survive a motion to dismiss for failure to

state a claim, the Flight Attendants needed to allege sufficient

facts to plead a claim for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Several federal

circuits have analyzed the minimum pleading requirements

for FLSA claims under a similarly constructed provision gov-

erning overtime pay, 29 U.S.C. § 207(a)(1). For example, the

Second and Ninth Circuits have held that for overtime claims,

plaintiffs must “allege facts demonstrating there was at least

one workweek in which they worked in excess of forty hours

and were not paid overtime wages.” Landers v. Quality Comm.,

Inc., 771 F.3d 638, 646 (9th Cir. 2014) (emphasis added) (citing

Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2nd Cir.

2013)). Though plaintiffs need not necessarily plead specific

dates and times that they worked undercompensated hours,

they must “provide some factual context that will nudge their

claim from conceivable to plausible.” Hall, 846 F.3d at 777

(emphasis in original) (quoting Dejesus, 726 F.3d at 90).

The same principles for pleading overtime pay violations

apply to minimum wage violations. In order to comply with

the requirements of Twombly, Iqbal, and FED. R. CIV. P. 8(a)(2),

a plaintiff alleging a federal minimum wage violation must

provide sufficient factual context to raise a plausible inference

there was at least one workweek in which he or she was

underpaid. Here, as demonstrated by the district court’s thor-

ough and detailed analysis, see Hirst v. SkyWest, Inc.,

283 F. Supp. 3d 684, 688–89 (N.D. Ill. 2017), no plaintiff did so,

8 Nos. 17-3643 & 17-3660

even after the district court permitted the Flight Attendants to

conduct limited discovery. Claiming they worked many

hours and citing several weeks in which they were paid the

minimum wage is not enough to render their claims plausible.

We affirm the dismissal of the Flight Attendants’ FLSA

claims.

III. State and Local Claims

The Flight Attendants next argue their state and local

wage claims should be reinstated. They contend the dormant

Commerce Clause does not apply to this case. Even if it does

apply, the Flight Attendants aver the district court did not

properly analyze the benefits to state and local governments,

and that the FLSA expressly permits the application of state

and local wage laws to employers. SkyWest responds that

under Pike the dormant Commerce Clause does apply to this

case, and that the district court accurately assessed the

burdens on SkyWest to comply with state and local wage

laws.

The Commerce Clause grants Congress the authority “[t]o

regulate Commerce … among the several States.” U.S. CONST.

art. I, § 8, cl. 3. The Supreme Court has inferred a “dormant”

aspect of the Commerce Clause “that limits states’ abilities to

restrict interstate commerce.” Minerva Dairy, Inc. v. Harsdorf,

905 F.3d 1047, 1058 (7th Cir. 2018) (citing New Energy Co. of

Ind. v. Limbach, 486 U.S. 269, 273 (1988)). 4 Under the dormant

4 Given its lack of a textual anchor, the continued validity of the

dormant Commerce Clause has been questioned, see, e.g., South Dakota v.

Wayfair, 138 S. Ct. 2080, 2100 (2018) (Thomas, J., concurring), id. at 2100

(Gorsuch, J., concurring), but it remains valid law absent a Supreme Court

directive to the contrary.

Nos. 17-3643 & 17-3660 9

Commerce Clause, we invalidate a state law only where there

is a clear showing of discrimination against interstate com-

merce, “either expressly or in practical effect.” Park Pet Shop,

Inc. v. City of Chicago, 872 F.3d 495, 501 (7th Cir. 2017).

The dormant Commerce Clause serves as a bulwark

against local protectionism. As such, “if the state law affects

commerce without any reallocation among jurisdictions and

does not give local firms any competitive advantage over

those located elsewhere, we apply the normal rational basis

standard.” Minerva Dairy, Inc., 905 F.3d at 1053 (internal quo-

tation marks and citations omitted); see also id. at 1058–59. Sky-

West is subject to many minimum wage laws that impose

serious compliance costs. But the existence of a great regula-

tory burden on an employer does not necessarily mean mini-

mum wage laws have a discriminatory effect on interstate

commerce. State and local wage laws can burden companies

within their own localities just as much, if not more, than out-

of-state ones. All airlines—indeed all employers—are subject

to these laws, regardless of state citizenship. “Pike balancing

is triggered only when the challenged law discriminates against

interstate commerce in practical application.” Park Pet Shop,

872 F.3d at 502 (emphases in original). SkyWest has failed to

allege any discrimination against interstate commerce. This

failing precludes the application of the dormant Commerce

Clause to the Flight Attendants’ state and local claims.

Even if minimum wage laws did discriminate against

interstate commerce, the dormant Commerce Clause does not

apply to state and local laws expressly authorized by Con-

gress. See, e.g., Northeast Bancorp, Inc. v. Bd. of Gov’rs of Fed. Res.

Sys., 472 U.S. 159, 174 (1985) (“When Congress so chooses,

state actions which it plainly authorizes are invulnerable to

10 Nos. 17-3643 & 17-3660

constitutional attack under the Commerce Clause.”); Milwau-

kee Cty. Pavers Ass’n v. Fiedler, 922 F.2d 419, 424 (7th Cir. 1991)

(“If Congress wants, it can authorize states to engage in activ-

ities that but for the authorization would violate the dormant

commerce clause.”). The FLSA contains such an express

authorization. Section 218(a) of the FLSA reads: “No provi-

sion of this chapter or of any order thereunder shall excuse

noncompliance with any Federal or State law or municipal

ordinance establishing a minimum wage higher than the min-

imum wage established under this chapter … .” Because Con-

gress expressly authorized states and localities to legislate in

this realm, the application of multiple minimum wage laws to

an employer cannot violate the dormant Commerce Clause.

For the foregoing reasons, we AFFIRM the dismissal of the

FLSA claims, and REVERSE and REMAND for further proceed-

ings on the state and local claims.