Petition for Writ of Certiorari — SkyWest, Inc., et al., Petitioners v. Andrea Hirst, et al.

APPENDIX

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APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_____________________

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.

_____________________

ARGUED SEPTEMBER 7, 2018 —

DECIDED DECEMBER 12, 2018

_____________________

Before WOOD, Chief Judge,

BRENNAN, Circuit Judges.

ROVNER,

and

BRENNAN, Circuit Judge. In this case, a number

of current and former flight attendants challenge an

airline’s compensation policy of paying for their work

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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.

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 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.

We do 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.

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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).

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 formerly employed the eight

plaintiffs-appellants in this case.1 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.

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

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 Bruno

Lozano.

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

between “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).

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shorter than the “duty day.”3 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. § 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, plaintiffsappellants 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 Illinois.

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).

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After 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 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

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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 guidance. In light of this, we turn

to the interpretation of the Department of Labor, the

administrative agency charged with overseeing the

FLSA. “When Congress leaves an administrative

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 determine whether the employer has paid

[the minimum wage].” Wage & Hour Release No. R609 (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

understanding. Further, in the eighty years since the

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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 consensus of other

federal appellate courts. Therefore, we adopt the perworkweek measure for determining compliance with

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

We now apply the per-workweek measure to the

pleadings 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 tor

FLSA claims under a similarly constructed provision

governing 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

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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 thorough and detailed analysis, see Hirst v.

SkyWest, Inc., 283 F. Supp. 3d 684, 688–89 (N.D. Ill.

2017), no plaintiff did so, 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

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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 Commerce Clause, we

invalidate a state law only where there is a clear

showing of discrimination against interstate

commerce, “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,

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.

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we apply the normal rational basis standard.” Minerva

Dairy, Inc., 905 F.3d at 1053 (internal quotation

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 regulatory burden on an employer does not

necessarily mean minimum 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 outof-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 Congress. 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

constitutional attack under the Commerce Clause.”);

Milwaukee Cty. Pavers Ass’n v. Fiedler, 922 F.2d 419,

424 (7th Cir. 1991) (“If Congress wants, it can

authorize states to engage in activities 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

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provision 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 minimum wage established

under this chapter ... .” Because Congress 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 proceedings on the state and

local claims.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREA HIRST, et al.,

Plaintiffs,

v.

SKYWEST, INC., et al.

Defendants.

CHERYL TAPP, et al.,

Plaintiffs,

v.

SKYWEST, INC., et al.

Defendants.

)

)

)

) No. 15-CV-02036

)

) Judge John J.

) Tharp, Jr.

)

)

)

)

) No. 15-CV-11117

)

) Judge John J.

) Tharp, Jr.

)

MEMORANDUM OPINION AND ORDER

Surely, you might think, flight attendants—who

hold coveted positions that require substantial

training in a variety of subjects and are entrusted with

helping to ensure the safety of the flying public—earn

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substantially more than the federal minimum wage of

$7.25 per hour. But do they? The plaintiffs in these

two cases say no. They are current and former flight

attendants (“FAs”) for SkyWest Airlines who bring

this action on behalf of themselves and all others

similarly situated, alleging that SkyWest paid them

less than teenagers make flipping burgers at a fastfood joint. The plaintiffs maintain that SkyWest

violated a patchwork of federal, state, and local wage

and wage statement laws by failing to compensate

them for much of the work they perform and for

providing them with inadequate information about

their pay. The complaints allege that SkyWest’s

compensation scheme—under which the plaintiffs

were paid not based on total hours worked, but only

for the amount of “block time” they worked (basically,

the time spent in the airplane with the cabin door

closed)—violates the federal minimum wage law1 and

a host of other state and local laws regulating

employee compensation.2 The court dismissed an

earlier iteration of this complaint because the

plaintiffs could not “provide[] a single instance where

1 Part of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §

206.

2 Specifically: California Wage Order No. 9, California Labor

Code §§ 201, 202, 203, 204, 226, 1182.12, 1194, and 1194.2, the

California Unfair Competition Law, Cal. Bus. & Prof. Code §§

17200 et seq., the San Francisco Minimum Wage Ordinance, San

Francisco Admin. Code § 12R, Los Angeles’ Living Wage

Ordinance, Los Angeles Admin. Code § 10.37 et seq., the Arizona

Wage Act, A.R.S. § 23-350, et seq., the Arizona Minimum Wage

Act, A.R.S. § 23363, et seq., the Washington Minimum Wage Act,

R.C.W. §§ 49.46.020, 49.46.130, and the Illinois Minimum Wage

Law (“IMWL”), § 820 ILCS 105/1 et seq.

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SkyWest failed to pay an FA the minimum wage as

mandated under federal law over the course of a

workweek.” Hirst v. SkyWest, Inc., No. 15 C 02036,

2016 WL 2986978, at *5 (N.D. Ill. May 24, 2016)

(“Hirst I”). SkyWest now moves to dismiss the

plaintiffs’ amended complaints, which, they maintain,

again fail to state a claim for relief. Because not one

of the plaintiffs has alleged facts that plausibly show

that she or he was ever paid less than the federal

minimum wage over the course of a work week—and,

indeed, the plaintiffs concede their inability to do so—

their minimum wage claims cannot get off the ground.

And because the state and local laws on which they

rely would pose a substantial (impossible, really)

compliance burden on SkyWest, they unduly interfere

with Congress’s regulation of interstate commerce and

therefore violate the Dormant Commerce Clause.

Accordingly, SkyWest’s motion to dismiss the

plaintiffs’ complaints is granted and these cases are

dismissed with prejudice.

I. Background3

The two complaints in this case are substantially

the same, save the specific allegations pertaining to

the individual plaintiffs. To simplify, this opinion will

not distinguish between the two, and will cite only to

the Hirst’s second amended complaint (ECF No. 85 in

15 CV 2036; “Hirst Compl.”) unless citing to an

allegation or statement that is unique to the Tapp

3 As this is a motion to dismiss, the Court accepts all well-

pleaded facts as true and construes all inferences in favor of the

plaintiff. Zemeckis v. Global Credit & Collection Corp., 679 F.3d

632, 634 (7th Cir. 2012).

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amended complaint (ECF No. 73 in 15 CV 11117;

“Tapp Compl.”).

A. Flight Attendant Duties, Schedules, and

Compensation

The complaints allege that SkyWest uses a

computerized scheduling and pay record system called

SkedPlus+, which informs FAs of their schedules for

the upcoming month just before the month begins.

Each monthly schedule includes multiple “pairings,”

or a one-to-four day series of flights that an FA is

assigned to work. FAs are only eligible for time-anda-half overtime pay if they are “junior manned,” which

occurs when an FA voluntarily agrees to work an

additional pairing that is not on her monthly schedule.

Each FA is based at a particular airport, where their

pairings begin and end. SkyWest compensates its FAs

using an hourly rate that varies based on the FA’s

experience. The schedules of SkyWest FAs are

recorded down to the minute in the SkedPlus+ system

in each shift’s “pairing details.” Hirst Compl. 30 Fig. 1.

The pairing details identify the FA by her employee

number and name, and list her base airport, level of

training, and position. The details list the FA’s “report

time”—the time at which she must have arrived at the

airport in uniform with all of her mandatory items for

duty, cleared security, and checked in electronically on

SkyWest’s computer system. Hirst Compl. 34. If an

FA reports earlier than the start time listed on the

pairing details, the required time rather than the

actual report time is recorded. Once an FA checks in

with SkyWest, she can be rerouted so the airline can

avoid delays.

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FAs are not paid their hourly rate for each hour

worked between their initial arrival at their base

airport and their departure at the end of a pairing.

Instead, SkyWest pays FAs their hourly rate only for

the greater of “block time”—that is, the actual time

between when each flight in a pairing leaves a gate

and when the main cabin door opens at its destination

gate—or “credit time,” the amount of time SkyWest

estimates it will take to go from gate-to-gate.4 Hirst

Compl. 40–41. SkyWest nonetheless tracks—and

SkedPlus+ records show—each FA’s “duty day,” or the

period each day between the time an FA is required to

be present at an airport in the morning and fifteen

minutes after the main cabin door opens on her final

flight of the day. Hirst Compl. 40–41. Portions of an

FA’s duty day—such as layover time—are, therefore,

not included in an FA’s compensated block time.

An FA’s duties also include a number of tasks that

are not included in the duty day, including reviewing

training materials, deplaning passengers over fifteen

minutes after the final flight of the day has arrived at

the gate, waiting during delays related to gatechecked

baggage,

international

customs

requirements, and mechanical issues after the final

flight of the day, writing reports concerning irregular

operations, and complying with mandatory drug

screenings. Moreover, FAs must clear airport security

4 SkyWest also pays FAs a small, untaxed hourly per diem of

$1.80 for their “Time Away from Base,” which includes all time

that an FA is working or on layover. Hirst Compl. 65. The

plaintiffs insist that this payment should not be included in the

calculation of their wages and SkyWest does not contend

otherwise, so the per diem payments do not factor into the court’s

analysis.

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each morning prior to the beginning of their shift.

Since January 2014, FAs have also been required to

check in with gate agents prior to their scheduled

departure,

which

may

require

additional

uncompensated time, based on the size and

configuration of the airport. The amount of time spent

on these activities ranges from minutes to hours per

day. SkyWest has no system in place to ensure that

the wages it pays comply with federal, state, and local

minimum wage laws.

SkyWest compensates FAs for certain training

activities at half of an FA’s typical hourly rate. FAs

are not compensated, however, for the actual amount

of time that it takes them to complete the training;

instead, they are paid half-wages for an amount of

time that SkyWest preordains for each training

session. For example, if SkyWest sets a particular

training session at eight hours, but an FA takes ten

hours to complete the training, the FA is still only

compensated for eight hours. Moreover, instead of

indicating that FAs are paid half-wages for time spent

training, the wage statements SkyWest provides to

FAs indicate that FAs trained for half the time allotted

by SkyWest. For example, if an FA with a wage rate

of $20 per hour completes an eight hour training

session, her pay statement indicates that she trained

for four hours at a rate of $20 per hour; in reality, the

FA trained for eight hours at a rate of $10 per hour.

SkyWest employees have access to their SkedPlus+

records, which detail the total amount of duty time as

well as the total time for which they are paid their

hourly wage for each day of a shift. The SkedPlus+

records do not total the amount of duty time an FA

worked during a pairing, so to deduce her total duty

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time, an FA must add the duty time listed for each day

of the pairing as well as any hours she worked outside

of her duty time. The SkedPlus+ records do note the

total “Time Away From Base” for a pairing, that is, the

total amount of time working or on layover during a

multi-day shift. Hirst Compl. 30 Fig. 1. When an

employee leaves SkyWest, she loses access to her

SkedPlus+ records, and as a matter of course,

SkyWest declines to provide SkedPlus+ records to

former employees who request them. In contrast to

SkedPlus+ records, the wage statements provided to

SkyWest FAs list only block hours—the time for which

an FA is paid their hourly wage. The wage statements

do not include the total duty time an FA has worked

during a pay period, nor do they include an accounting

of the time an FA has worked outside her block duty

hours.

B. Plaintiff Specific Facts

The complaints set forth specific facts as to each

plaintiff’s experience with SkyWest, presumably

intended to demonstrate that there were periods when

each of them was not compensated at or above the

federal minimum wage.

1.

Andrea Hirst

Andrea Hirst worked as an FA for SkyWest for over

five years (though she does not tell us over what

specific period, an omission that obscures her blocktime wage rate for some portions of her employment).

For almost all of that time, she was based at Chicago

O’Hare International Airport. During a pairing in

December 2014, due to an incoming aircraft arrival

delay, Hirst’s block time did not begin until

approximately 6.5 hours after her report time. On

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that day, she received her hourly block-time wage (at

that time, $22.49) for only 7 hours and 48 minutes,

although her duty day was 14 hours and 49 minutes.

Aside from holiday pay, Hirst only received time-anda-half wages once, when she was “junior manned.”

Hirst regularly worked hours that were not part of her

duty day preparing irregular operations reports,

reading training materials, and arriving early at the

airport due to the unpredictability of security at

O’Hare. Hirst also regularly took more than the

allotted time to complete compensated online training

sessions, but was only compensated for the time

allotted by SkyWest.

2. Molly Stover

Molly Stover worked as an FA for SkyWest for over

two years and was exclusively based out of O’Hare. On

multiple pairings, Stover’s flights were delayed and

she was not compensated (aside from the small per

diem) for the extra time she spent working as a result.

Stover never received time-and-a-half pay. Stover

regularly worked hours that were not part of her duty

day preparing irregular operations reports, reading

training materials, and arriving early at the airport

due to the unpredictability of security at O’Hare. For

the pay period lasting from October 1 to October 15,

2012, Stover was paid $656.25 for 86.07 hours of duty

time. Her actual hourly rate of pay for this period was

$7.62 per hour. At least once, Stover took more than

the allotted time to complete compensated online

training sessions, but was only compensated for the

time allotted by SkyWest.

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3. Emily Stroble Sze

Emily Stroble Sze worked as an FA for SkyWest for

over two years and was based out of O’Hare for all but

three months of her tenure. Sze regularly worked

hours that were not part of her duty day preparing

irregular operations reports, reading training

materials, and arriving early at the airport due to the

unpredictability of security at O’Hare.

4. Cheryl Tapp

Cheryl Tapp is the only plaintiff who continues to be

employed by SkyWest. Tapp has been an FA for

SkyWest for more than five years and has been based

in San Francisco and Los Angeles in that time. Tapp

received time-and-a-half pay 11 times, when she was

junior manned. During the week of January 7–13,

2013, Tapp worked 62.65 duty hours and was paid at

an effective rate of $15.47 per hour, not factoring in

any hours she may have worked outside her duty days.

During the week of April 9–14, 2013, Tapp worked

51.13 hours at an effective rate of $13.49 per hour,

again not factoring in hours worked outside duty days.

5. Renee Sitavich

Renee Sitavich worked as an FA for SkyWest for

over eight years, initially based at O’Hare before she

transferred to San Francisco. On September 9, 2013,

Sitavich had a duty day of 11 hours and 1 minute but

was paid for only seven block hours. On September

10, 2013, her duty day was 2 hours and 32 minutes,

but she was paid for only 1 hour and 5 minutes.

Sitavich received junior man pay once. For the week

of April 8–14, 2013, Sitavich was paid an effective rate

of $20.45 per hour based on her duty time, not

including any work performed outside of her duty

21a

days. Sitavich regularly worked hours that were not

part of her duty day preparing irregular operations

reports, reading training materials, and arriving early

at the airport due to the unpredictability of security at

O’Hare.

6. Sarah Hudson

Sarah Hudson worked as an FA for SkyWest for just

under two years, based at Fresno Yosemite

International Airport. On October 4, 2013, Hudson

received only two hours of block pay for a duty day of

4 hours and 37 minutes. On October 5, 2013, she was

paid for 3 hours and 34 minutes of block time for a duty

day of 8 hours and 31 minutes. During the 15 day

period between January 31 and February 15, 2014,

Hudson was paid $514.89 for a total of 65.73 duty

hours, averaging to $7.83 per hour, not accounting for

work outside of her duty days.

7. Brandon Colson

Brandon Colson worked as an FA for SkyWest for

two years, exclusively based at Phoenix Sky Harbor

International Airport. Flights in and out of Phoenix

were regularly delayed due to high temperatures. One

flight Colson was working was diverted to Tucson,

where the plane pulled up to a jet bridge and the main

cabin door was opened, ending Colson’s “block time.”

Colson was nonetheless required to continue working,

addressing passenger needs for two hours until they

were able to resume their flight. Colson received

junior man pay during only once. Every week or every

other week, Colson had to spend time outside of his

duty day preparing irregular operations reports, and

he regularly had to work for more than fifteen minutes

22a

after the main cabin door opened on the final flight of

a day.

8. Brüno Lozano

Brüno Lozano worked as a SkyWest FA for over two

years, during which he was based in Los Angeles, San

Francisco, and Seattle. Lozano never received timeand-a-half pay. Lozano worked extremely long duty

days, and worked additional hours outside of his duty

days.

C. Procedural History

The Hirst suit (plaintiffs Hirst, Stover, and Sze) was

filed in March 2015, while the Tapp suit (plaintiffs

Tapp, Sitavich, Hudson, Colson, and Lozano) was filed

in November 2015. The first amended complaint in

Hirst alleged that SkyWest violated the Fair Labor

Standards Act and the Illinois Minimum Wage Law

(“IMWL”) by failing to pay the plaintiffs the minimum

wage for their compensable hours. The complaint

indicated that the suit was brought as a collective

action under the FLSA, 29 U.S.C. § 216(b),5 and the

plaintiffs also sought to represent a class of Illinoisbased FAs under Federal Rule of Civil Procedure 23 as

to the IMWL claim. On SkyWest’s motion, the court

initially dismissed the Hirst plaintiffs’ FLSA claims

5 The viability of FLSA claims asserted on behalf of other

SkyWest FA’s appears questionable at this juncture, in light of

the fact that “the claims of potential members of an FLSA

collective action are not tolled until they file opt-in notices.”

Hollins v. Regency Corp., 867 F.3d 830, 834 (7th Cir. 2017). See

also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013)

(other similarly situated employees “become parties to a

collective action only by filing written consent with the court”).

No opt-in notices have been filed in either case.

23a

without prejudice and dismissed their IMWL claims

with prejudice. On the plaintiffs’ motion to reconsider,

the court converted its dismissal with prejudice of the

plaintiffs’ IMWA claims to a dismissal without

prejudice.

The Hirst plaintiffs subsequently filed a second

amended complaint and the Tapp plaintiffs filed a first

amended complaint; those complaints are the subject

of the instant motions to dismiss. The Hirst second

amended complaint again alleges, based on the

foregoing facts, that SkyWest violated the Fair Labor

Standards Act and the Illinois Minimum Wage Law.

The Tapp amended complaint alleges violations of

FLSA, California Wage Order 9-2001, California

Labor Code Sections 201, 202, 203, 204, 226, 1182.12,

1194, and 1194.2, California Business and

Professional Code Section 17200, San Francisco

Administrative Code Section 12R, the Los Angeles

Living Wage Ordinance, the Arizona Wage Act, the

Arizona Minimum Wage Act, and the Washington

Minimum Wage Act.

II. DISCUSSION

The motion to dismiss presents two principal issues:

Have the plaintiffs plausibly alleged that they were

ever paid less than the federal minimum wage? And is

SkyWest required to comply with state and local wage

laws concerning the compensation paid to its FAs?

A. FLSA Claims

The FLSA requires that “[e]very employer shall pay

to each of his employees who in any workweek is

engaged in commerce...not less than—$7.25 an hour.”

24a

29 U.S.C. § 206(a)(1)(C).6 In its previous opinion, the

court grappled with the appropriate way to determine

whether an employer met this obligation. Over what

period of time must an employee’s wages be measured

under the FLSA? Must an employee’s rate of pay equal

or exceed the minimum wage over the course of each

hour the employee works? Or can an employee’s hourly

rate dip below the minimum wage for some limited

periods so long as the employee’s wage exceeds $7.25

per hour over the course of a day, or a week, or a

month?

The court determined that “courts uniformly

calculate the hourly wage over the course of a

workweek—i.e., dividing the total compensation an

employee received in a workweek by the compensable

hours worked.” Hirst v. SkyWest, Inc., No. 15 C 02036,

2016 WL 2986978, at *5 (N.D. Ill. May 24, 2016)

(“Hirst I”).7 Consistent with this requirement,

6 The federal minimum wage of $7.25 per hour went into effect

on July 24, 2009 and has not been increased since. Accordingly,

it was the relevant wage rate for the entire period of the plaintiffs’

claims, which extend back three years at most from the filing of

the complaints in 2015.

7 As noted, although the Seventh Circuit has never addressed

this question, every Circuit Court of Appeals that has done so has

concluded that the workweek is the appropriate unit of measure

to apply to FLSA minimum wage claims. See Douglas v. Xerox

Business Services, LLC, --- F.3d ---, 2017 WL 5474213, *5 (9th Cir.

Nov. 15, 2017) (affirming dismissal of claims where plaintiffs

could not establish that non-compensated time reduced their

effective wage rate below the federal minimum over the course of

any workweek); U.S. Dep’t of Labor v. Cole Enterprises, Inc., 62

F.3d 775, 780 (6th Cir. 1995) (“[A]n employer meets the minimum

wage requirements if the total weekly wage paid is equal to or

greater than the number of hours worked in the week multiplied

25a

numerous courts have held that under the workweek

averaging standard, “the plaintiffs must plausibly

allege at least one workweek for which the

compensation they received, divided by their total

compensable time, failed to meet the FLSA minimum

wage of $7.25 per hour.” Hirst I, 2016 WL 2986978, at

*6. See, e.g., Hughes v. Scarlett’s G.P., Inc., 2016 WL

4179153, *2 (N.D. Ill. Aug. 8, 2016) (following Hirst I);

Pruell v. Caritas Christi, 678 F.3d 10, 13–15 (1st Cir.

2012); Lundy v. Catholic Health Sys. of Long Island

Inc., 711 F.3d 106, 114 (2d Cir. 2013) (“we find no

plausible claim that FLSA was violated, because

Plaintiffs have not alleged a single workweek in which

they worked at least 40 hours and also worked

uncompensated time in excess of 40 hours”); Davis v.

Abington Mem. Hosp., 765 F.3d 236, 241–42 (3d Cir.

2014) (agreeing with Second Circuit’s analysis in

Lundy); Landers v. Quality Communications, Inc., 771

by the statutory minimum hourly rate.”); Hensley v. MacMillan

Bloedel Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986) (“no

[FLSA] violation occurs ‘so long as the total weekly wage paid by

an employer meets the minimum weekly requirements of the

statute, such minimum weekly requirement being equal to the

number of hours actually worked that week multiplied by the

minimum hourly statutory requirement.’” (quoting United States

v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir.

1960)); Dove v. Coupe, 759 F.2d 167, 171–72 (D.C. Cir. 1985)

(“While the minimum wage laws logically could be construed as

requiring hour-by-hour compliance, [ ] both administrative and

judicial decisions established the workweek as the measuring rod

for compliance”); Olson v. Superior Pontiac-GMC, Inc., 765 F.2d

1570, 1576–77 (11th Cir.), modified on other grounds, 776 F.2d

265 (11th Cir. 1985) (applying weekly averaging approach to

example compensation scheme); Blankenship v. Thurston Motor

Lines, 415 F.2d 1193, 1197–98 (4th Cir. 1969) (applying the

weekly averaging approach).

26a

F.3d 638, 644–45 (9th Cir. 2014) (expressly adopting

rationale of Pruell, Lundy, and Davis); Hall v.

DirectTV LLC, 846 F.3d 757 (4th Cir. 2017) (following

Lundy, Davis, and Landers). Because the plaintiffs

failed to allege facts that would satisfy this pleading

standard by plausibly suggesting that their

compensation dipped below the federal minimum

wage even once over the course of a workweek, the

court dismissed the prior iteration of the plaintiffs’

FLSA claim. Hirst I, 2016 WL 2986978 at *7. The

prior complaint failed to allege the plaintiffs’ hourly

wages, the total compensation they received for any

workweek, and for two of the three plaintiffs, the total

number of hours worked in any given week. Although

the complaint contained some pairing information for

plaintiff Hirst, a calculation based on that information

revealed that Hirst was paid well over minimum wage

over the course of the example pairings. Id.

Notwithstanding this precedent and the court’s

dismissal of the prior complaint, the plaintiffs’ current

complaints have not remedied the fatal defect: they

still fail to allege that there was even one workweek in

which any of the plaintiffs did not receive at least the

federal minimum wage for compensable work

performed over the course of a workweek. To be sure,

this time around the plaintiffs provide more detail, but

the deficiency remains. For virtually all of the

plaintiffs, the complaints contain the total number of

“duty” hours the plaintiff worked during certain

specific flight pairings. And some plaintiffs have pled

their rate of pay at certain points in time. But no

plaintiff has pled information sufficient to infer that

they were paid below $7.25 per hour over the course of

a given work week. Simple arithmetic tells us that an

27a

FA’s average hourly wage over the course of a

workweek may be ascertained by dividing the total

amount the FA was paid that week by the number of

compensable hours the FA worked over the same

period. Not one plaintiff, however, has provided that

information for even a single workweek. Nor has any

plaintiff alleged even in more general terms that she

or he was paid less than $7.25 per hour over the course

of any workweek.

And indeed, the plaintiffs concede that they cannot

do so. In their complaints, they acknowledge that

“flight attendants cannot reasonably calculate their

actual hourly rate of pay for any given workweek.”

Hirst Compl. 73; Tapp Compl. 77; see also, e.g., Tapp

Compl. 98 (“Ms. Hudson’s hourly rate of pay for a given

workweek cannot be accurately determined, nor are

the records necessary to determine this information

accessible from any source.”). A plaintiff’s concession

that she cannot determine her hourly wage over the

course of any workweek is a concession that she cannot

state a FLSA minimum wage claim. “To survive a

motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to

relief that is plausible on its face. A claim has facial

plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 556 (2007); quotation

marks and citation omitted). Failing to allege facts

that plausibly support an inference that the average

weekly wage paid by SkyWest to the plaintiffs fell

below the federal minimum wage, the amended

28a

complaints

violation.8

do

not

sufficiently

allege

a

FLSA

Given the plaintiffs’ conceded inability to determine

their hourly wages, it is no surprise to see that the

amended complaints do not actually plead that any of

the plaintiffs were not paid the minimum wage over

the course of even one week. Despite the plaintiffs’

seeming acknowledgment that the workweek

standard is the appropriate unit of measure for a

FLSA claim—see Hirst Compl. 121—what the

amended complaints continue to allege, instead, is

that “on certain workdays,” Hirst Compl. 125, the

“block time” wages they received did not meet the

minimum wage over the course of that day. But that,

again, is the wrong measure. Hirst I, 2016 WL

2986978, at *5. By clinging to that erroneous workday

standard the plaintiffs only further confirm that they

don’t have the goods to allege plausible FLSA

violations based on the appropriate standard, namely

the workweek.9

8

Although the complaints make sparse references to

SkyWest’s alleged violations of an FLSA record-keeping

provision, 29 U.S.C. § 211(c), plaintiffs do not appear to pursue

independent claims based on those alleged violations, and do not

mention § 211(c) in their briefs. Rather, plaintiffs attempt to use

SkyWest’s purported record-keeping violations to bolster their

claim that SkyWest paid them below the federal minimum wage.

9 The plaintiffs do allege that during particular weeks they

worked in excess of 40 hours without receiving time-and-a-half

compensation, but that fact has no relevance in the context of a

FLSA claim because the FLSA exempts airlines from paying

overtime wages. See 29 U.S.C. 213(b)(3).

The plaintiffs,

acknowledging this, do not assert a claim based on non-payment

of overtime compensation. And to the extent that the complaints

acknowledge that notwithstanding this overtime exemption,

29a

Far from increasing the plausibility of the plaintiffs’

claims, the new data set forth in the amended

complaints confirm what the plaintiffs’ have now

expressly acknowledged. Where the plaintiffs have

pled both their total pay (or information sufficient to

establish their total pay) and their total number of

duty hours over a given multi-day period (other than

a workweek, which, again, no one has pled), the data

reveal that the plaintiffs were paid in excess of the

federal minimum wage. Plaintiff Hirst again uses her

December 21–24, 2014 pairing as an example, but, as

the court previously concluded, her average hourly pay

during that pairing was $14.82, more than double the

$7.25 minimum wage. Hirst I, 2016 WL 2986978, at

*6. Plaintiffs Stover and Hudson allege that there

were single bi-monthly periods—periods of slightly

over two weeks— where their total wages divided by

their number of duty hours were $7.62 and $7.83,

respectively. These totals, of course, exceed the

federal minimum wage. None of the pairing data

provided in the amended complaints shows any multiday period, much less a week, during which a plaintiff

received less than minimum wage.

The plaintiffs attempt to make up the deficit of

uncompensated duty day hours by pointing to “off-theclock” work they performed before reporting in for

their duty day and after their release.

This

“preliminary and postliminary” uncompensated work,

SkyWest paid time-and-a-half in certain circumstances, it further

undermines the minimum wage claim because in paying-timeand-a-half, the company increased, rather than decreased, the

effective wage rate, making it less plausible, not more, that the

FAs received less than the minimum wage over the course of a

workweek.

30a

they allege, includes time spent at the airport clearing

security, reading communications from SkyWest

(“Know Before You Go” emails), debarking passengers

for more than 15 minutes after the last flight of a

pairing, writing “irregular operations reports” as

needed, and complying with mandatory drug

screening before or after flights. See Hirst Compl. 61.

Even

assuming

that

these

activities

are

10

compensable, the allegations offered fall short of

plausibly establishing that the performance of these

duties has ever caused any of the plaintiffs to work so

many hours that their average hourly rate for the

week dipped below the federal minimum wage. They

allege only that the amount of time spent on such

tasks “ranges from minutes per working day up to

several hours per working day,” Hirst Compl. 62, and

that uncompensated time not included in the duty day

“often include[s] several hours of unpaid time per

workweek.” Hirst Compl. 122. Apart from the fact that

the plaintiff’s candid assessment of the time required

by these tasks is relatively modest,11 the plaintiffs do

10 The defendants do not argue that these tasks should not be

treated as compensable work, so for purposes of this motion the

court assumes, without deciding, that they are.

11 The amended complaints provide little basis to infer that

these extra-duty hour tasks required a great deal of time. The

complaints make much ado, for example, about “irregular

operations reports,” but according to Plaintiff Colson, such

reports were needed only once every 1–2 weeks (Tapp 108) and

the complaints provide no estimate of how long it typically takes

to prepare such report. So too with “Know Before You Go”

communications. And over the course of a multi-day pairing, even

an FA based at O’Hare might only have to clear security at

O’Hare once, so there seems little reason to infer that the need to

arrive early at O’Hare would requires significant off-the-clock

31a

not identify any particular week or weeks when such

tasks, added to their duty day hours, reduced their

effective wage rate to below $7.25 per hour. As noted

above, the complaints stop short of alleging that there

was ever an occasion when such tasks combined with

duty hours to drive their wage rates below minimum

wage.

The sheer possibility that FAs worked a few

minutes, or even several hours, of “off-the- clock” work

that were not counted as part of their duty days is

insufficient to give rise to a plausible claim for relief.

Adding “several” hours (we’ll assume that means

about three hours, as common parlance would suggest)

of weekly non-compensated off-the-clock time, as

alleged by the complaints, to Hirst’s December 21–24,

2014 pairing, for example, would reduce her effective

rate of pay over that period from $13.12 to $12.27, still

far above the minimum wage rate; over the course of

that pairing, Hirst would have had to work some 35

additional noncompensated hours beyond her duty

hours to drive her wage rate below minimum wage—

that is, five hours a day. Nothing in the complaints

suggests that pre- and post-duty hour work required

anywhere near that amount of time. Plainly, these

facts do nothing to make Hirst’s claim more

plausible.12

time. Nor do the complaints include any allegations about how

often it took more than 15 minutes to debark passengers or by

how much that benchmark was typically exceeded.

12 Based on the data set forth in the amended complaints,

effective wage rates for Tapp and Sitavich may also be calculated,

and those rates (for Tapp, $15.47 and $13.49 for two different

pairings, and for Sitavich $20.45) are even higher than Hirst’s.

No data sufficient to make an effective wage calculation for

32a

Let’s consider, though, the claims of plaintiffs

Stover and Hudson. As noted above, the amended

complaints include data for each of these plaintiffs;

calculating their average wage rate over a 15-day

period based on their duty hours shows that their

wage rates for those periods were $7.62 and $7.83,

respectively—above the minimum wage, but not by a

lot. Even so, for those rates to be reduced to $7.25 per

hour, Stover and Hudson would have to have worked

an additional 4.48 and 5.29 hours of “off-the-clock”

time, respectively, over that 15-day period, an amount

of time that is consistent with the allegation that FAs

often preformed several hours of uncompensated time

beyond their duty hours over the course of a

workweek. The problem for these plaintiffs, though, is

that even if it is plausible to infer that, in some weeks,

Stover and Hudson worked this much off-the-clock

time, whether they worked that many uncompensated

hours during these particular periods is anybody’s

guess; the complaint contains no allegations

whatsoever about the number of off-duty hours

plaintiffs Stover and Hudson worked during the

identified 15-day periods. Instead, they posit that it is

possible that they did so. And so it is, but as Twombly

and Iqbal make plain, federal pleading requires the

assertion of facts sufficient to distinguish the plausible

from the merely possible. “Where a complaint pleads

facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility

and plausibility of entitlement to relief.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

plaintiffs Sze, Colson, or Luzano is provided. The calculations as

to plaintiffs Stover and Hudson are discussed below.

33a

U.S. at 557; quotation marks and citations omitted).

See also, e.g., Camasta v. Jos. A. Bank Clothiers, Inc.,

761 F.3d 732, 736 (7th Cir. 2014) (“To survive a motion

to dismiss under Rule 12(b)(6), the complaint must

provide enough factual information to . . . raise a right

to relief above the speculative level.” (internal

quotation marks omitted).

In lieu of affirmative allegations that their hourly

rates ever dipped below the federal minimum wage,

the plaintiffs essentially contend that, given the

variability of off-the-clock hours work and

uncompensated duty hours work, there must have

been some coincidental occasions when the number of

those hours combined to reduce their average hourly

rate over that week below the minimum wage. But

that is utter speculation, not plausible allegation, and

the former does not suffice to state a claim. That is

why courts of appeal that have addressed the pleading

requirements for FLSA claims have consistently held

that allegations to the effect that employees frequently

or typically performed uncompensated work do not

suffice to allege a plausible FLSA claim. See, e.g.,

Lundy, 711 F.3d at 114–15 (rejecting allegations that

plaintiffs “occasionally,” or “typically,” or “often”

worked additional or longer shifts or performed other

uncompensated work as insufficient to plausibly

allege that there was ever a week in which plaintiffs

worked uncompensated overtime hours); Nakahata v.

New York-Presbyterian Healthcare Sys., Inc., 723 F.3d

192, 201 (2d Cir. 2013) (“allegations . . . that Plaintiffs

were not compensated for work performed during meal

breaks, before and after shifts, or during required

trainings—raise the possibility that Plaintiffs were

undercompensated in violation of the FLSA [but] . . .

34a

do not state a plausible claim for such relief. To plead

a plausible FLSA overtime claim, Plaintiffs must

provide sufficient detail about the length and

frequency of their unpaid work to support a reasonable

inference that they worked more than forty hours in a

given week.”); Davis, 765 F.3d at 242 (rejecting as

implausible allegations that plaintiffs “typically

worked full time, or very close to it” and “also worked

several hours of unpaid work each week” because the

combination of those allegations fell short of alleging

that any of the four plaintiffs had ever actually

performed more than forty hours of compensable work

in a week).

As these cases illustrate, it is one thing to allege

affirmatively that plaintiffs regularly worked X

number of hours a week and received less than $7.25X

in compensation during one or more of those weeks; it

is another thing to allege, as the plaintiffs do here,

that they sometimes worked “several” uncompensated

off-the-clock hours in a week and that they may have

done so in a week in which they worked so many

uncompensated duty hours that they averaged less

than $7.25 for the week. Twombly and Iqbal do not

require mathematical precision, but they do require

courts to distinguish between allegations that a

defendant might be liable and allegations that support

a reasonable inference that a defendant is liable.

Iqbal, 556 U.S. at 678. None of this is to say that it is

not possible that one or more of the plaintiffs ever

worked for less than minimum wage over the course of

a week. But here the facts do not permit a plausible

inference, as distinguished from a guess, that any of

these plaintiffs ever did so. At best, the plaintiffs

allege nothing more than the possibility that, during

35a

some unknown week or weeks, they worked enough

off-duty hours to drive their effective wages below

$7.25 hour.

Where the plaintiffs themselves

acknowledge that they cannot identify even a single

instance when this occurred, however, there simply is

not an adequate basis to infer that the “possible” ever

actually occurred. “Where the well-pleaded facts do

not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—

but it has not ‘shown’—‘that the pleader is entitled to

relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.

8(a)(2)).

In their response brief, the plaintiffs devote only two

pages to defending the sufficiency of their pleadings

with respect to their FLSA claims, making two

arguments. First, they argue that it is impossible for

them to allege that their average wages over the

course of a workweek were below minimum wage

because SkyWest controls—and will not provide to

them—the documents necessary to conduct a weekly

calculation. This argument is unavailing for several

reasons. First, as a general matter, a plausible claim

must precede, not follow, discovery. A plaintiff “armed

with nothing more than conclusions” does not “unlock

the doors of discovery.” Iqbal, 556 U.S. at 678–79. It is

no answer to say that discovery might provide factual

support for conclusory allegations that the plaintiffs

were paid under minimum wage over the course a

workweek; the factual allegations must be sufficient

“to raise a reasonable expectation that discovery will

reveal evidence” of the claimed misconduct. Twombly,

550 U.S. at 556 (emphasis added). Second, although

“plaintiffs’ pleading burden should be commensurate

with the amount of information available to them,”

36a

Olson v. Champaign County, Ill., 784 F.3d 1093, 1100

(7th Cir. 2015), it bears noting here that SkyWest

produced some, if not all, of their Sked+ and payroll

records to the plaintiffs and that these records were

available to the plaintiffs in drafting their amended

complaints. SkyWest Hirst Br. at 6 n.4, ECF No. 95.

Third, the court granted the plaintiffs limited pretrial

discovery, see Hirst ECF Nos. 96 and 101; that

followed filing of the amended complaints and briefs

on the motion to dismiss, but the plaintiffs have not

sought further leave to amend their briefs or to

supplement their pleadings based on any new

information they obtained from SkyWest.

And finally on this point, the plaintiff’s premise that

they cannot calculate their average hourly rate over

the course of a workweek because “all” of the necessary

records “are in the possession and control of SkyWest”

is simply not accurate. For starters, some of the

information about “off-the-clock” work that the

plaintiffs say should be included in the calculation

would seemingly be within the possession of the

plaintiffs, not SkyWest. A number of the plaintiffs

allege, for example, that they regularly arrived early

at O’Hare to avoid the unpredictability of security

lines, but the plaintiffs do not explain why SkyWest

would have records reflecting how early individual

FAs opted to show up at the airport. Similarly, it is

not at all clear how SkyWest, rather than the FAs,

would have information about how much time, if any,

they spent reviewing “Know Before You Go”

information each day before reporting for duty or

preparing “irregular operations” reports after duty.

Moreover, much of the information plaintiffs claim

they do not have could easily have been ascertained

37a

with due diligence. The plaintiffs could have kept

track of the amount of time, or consulted records that

would have provided more data on which to base their

allegations. The amount that the plaintiffs were paid

in each period, for example, should be readily available

to them via their wage statements and bank account

records.

Records

of

contemporaneous

communications, both as to their substance and as

evidence of when the plaintiffs were working and

when they were not, could have been consulted. So too

things like calendars, credit card receipts, cell phone

bills, and tax records. Doubtless some records within

the plaintiffs’ control disappeared over the years, but

the poverty of information these plaintiffs claim is

nearly absolute. Hirst, for example, claims not even to

know when she moved from Minneapolis-St. Paul to

Chicago, a fact that surely could be reconstructed from

information in her possession. The claim that not one

of these plaintiffs could access enough information to

come up with a reasonable estimate of their hourly

rates were for even a single workweek is not at all

persuasive and is indicative of either a lack of

diligence or a lack of helpful data.

It bears noting as well that although FLSA

plaintiffs are not required to establish their wage rates

with mathematical precision, courts “have recognized

that it is employees’ memory and experience that lead

them to claim in federal court that they have been

[compensated] in violation of the FLSA in the first

place,” and they must “draw on those resources in

providing complaints with sufficiently developed

factual allegations.” Dejesus v. HF Management

Services, LLC, 726 F.3d 85, 90 (2d Cir. 2013); Hughes

v. Scarlett’s G.P., Inc., No. 15-cv-5546, 2016 WL

38a

4179153, at *4 (N.D. Ill. Aug. 8, 2016) (“[T]he law

requires FLSA plaintiffs to draw upon memory and

experience in providing complaints with sufficiently

developed factual allegations.” (alteration omitted)).

Nevertheless, none of the plaintiffs has been willing to

make even an estimate about the average amount of

off-the-clock time they spent during any particular

week. Rather, they have only been willing to plead

that in some weeks, the aggregate off-the- clock time

totaled “several hours.” That allegation, even

accepting it as true for purposes of this motion, does

nothing to allege the effect of those hours on the

average hourly wage over the course of any given

workweek. The plaintiffs still fail to plead a single

week, or even a single pay period, in which they were

paid below $7.25 per hour.

The plaintiffs’ second argument to excuse their

pleading deficiency confuses evidentiary burdens and

pleading burdens.

Citing Tyson Foods, Inc. v.

Bouaphakeo, 136 S. Ct. 1036, 1047 (2016), the

plaintiffs argue that they have no burden to plead that

their workweek wages were below $7.25 as long as

they plead that they performed some uncompensated

work. In Tyson Foods, the Supreme Court established

a burden shifting framework in FLSA cases, noting

that an employee carries his initial evidentiary burden

“if he proves that he has in fact performed work for

which he was improperly compensated and if he

produces sufficient evidence to show the amount and

extent of that work as a matter of just and reasonable

inference.” 136 S. Ct. at 1047. “The burden then shifts

to the employer to come forward with evidence of the

precise amount of work performed or with evidence to

negate the reasonableness of the inference to be drawn

39a

from the employee’s evidence.” Id. According to the

plaintiffs, Tyson Foods permits them to survive a

motion to dismiss by pleading that that they engaged

in uncompensated work.

But the Tyson Foods

framework is an evidentiary standard, and “does not

address pleading standards.” Hughes, 2016 WL

4179153, at *4. “[I]ts language regarding ‘evidentiary

gaps’ and ‘burden-shifting’ does not apply to the

present motions.” Id. Moreover, even if the Tyson

Foods framework were applicable at the pleadings

stage, it requires plaintiffs to “show the amount and

extent” of their uncompensated work—which, as the

court previously noted, plaintiffs have failed to do.

The bottom line with respect to the plaintiffs’ FLSA

claims is this: in these complaints, we encounter eight

plaintiffs who, at the time the amended complaints

were filed, had worked an aggregate of some 1500

weeks (more than 28 years) for SkyWest,13 yet could

not allege that in even one of those weeks one of them

had not been paid at least the federal minimum wage.

Failing to clear that very low bar, the FLSA claims

they assert fail and, because the plaintiffs have had

the opportunity to replead in an effort to cure this

deficiency, the FLSA claims are dismissed with

prejudice.

II. State Law Claims

In its previous opinion, the court dismissed the

Hirst plaintiffs’ Illinois Minimum Wage Law claims

with prejudice, concluding that the IMWL was

13 Hirst (>260 weeks) + Stover (>104 weeks) + Sze (>104

weeks) + Tapp (>260 weeks) +Sitavich (>416 weeks) + Hudson

(<104 weeks) + Colson (104 weeks) + Luzano (>104 weeks) = 1500

weeks.

40a

preempted by the Dormant Commerce Clause. On the

plaintiffs’ motion for reconsideration, the court

converted the dismissal to be without prejudice, giving

the plaintiffs an opportunity to plead facts indicating

that SkyWest’s burden of compliance with state and

local wage laws would be insubstantial. Under the

Dormant Commerce Clause, a regulation that is

neutral on its face or only has indirect effects on

interstate commerce “will be upheld ‘unless the

burden imposed on such commerce is clearly excessive

in relation to the putative local benefits.’” Nat’l Solid

Wastes Mgmt. Ass’n v. Meyer, 63 F.3d 652, 657 (7th

Cir. 1995) (quoting Pike v. Bruce Church, Inc., 397

U.S. 137, 142 (1970)). Previously, the court explained:

[T]he IMWL provisions would only apply to FAs

based in Illinois and only to the hours they

worked in Illinois. To calculate the time plaintiffs

worked to which the IMWL would apply,

SkyWest would have to track each minute pre- or

post-flight in Illinois and the amount of turn time

between flights that FAs spent in Illinois.

Moreover, if the IMWL were applicable to

SkyWest FAs, then every state’s comparable laws

would also apply, subjecting SkyWest to 50 or

more regulations depending on where each FA

was physically located at a particular moment in

time. Requiring compliance with the IMWL

would not be a simple matter of setting an FA’s

minimum wage at the statutory amount in the

state in which she is based; it would impose a

labyrinth of potentially conflicting wage laws

upon FAs based out of different states and cities,

working on the same flights, literally moving

through interstate commerce on a daily basis.

41a

This is precisely the type of burden on interstate

commerce that the Commerce Clause prohibits.

Hirst I, 2016 WL 2986978, at *10 (citations and

footnotes omitted).

In their amended complaints and their briefs, the

plaintiffs say little about the burdens SkyWest would

face if forced to comply with each state and local wage

law. Instead, the plaintiffs argue that compliance

would not be cumbersome because only the wage laws

of the state and locality where an FA is based would

apply to her. Would that it were so simple. Neither

the plaintiffs nor SkyWest can determine by fiat when

and where state laws apply. Some wage ordinances,

for example, may apply to all hours worked by an

employee who is employed within a state, even if some

hours are worked out of state; others apply only to

employees who work predominantly in one state for

hours they work in that state, while still others apply

to all hours worked by an employee in a state, even if

the employee predominantly works or is employed

elsewhere. Compare Miller v. Farmer Bros. Co., 150

P.3d 598, 606 (Wash. Ct. App. 2007) (noting that

Washington’s overtime law “does not make any

exception for overtime hours worked outside

Washington State” if the employee engaged in

“employment within the state of Washington”), with

Wooley v. Bridgeview Bank Mortgage Co., LLC, No. 14

C 5757, 2015 WL 327357, at *2–3 (N.D. Ill. Jan 23,

2015) (holding that the Illinois Minimum Wage Law

applies only to Illinois employees for conduct occurring

in Illinois), and Sullivan v. Oracle Corp., 254 P.3d 237,

242–44 (Cal. 2011) (holding that California’s overtime

laws apply to certain work performed in California by

out of state employees). Further complicating matters

42a

is the fact that different states use different measures

for calculating minimum wage; while some, like

Illinois, follow the federal model of averaging hourly

rates over a workweek, others, like California, require

that at least minimum wage be paid for every hour

work, even if some hours are compensated at a rate

higher than minimum wage.

The burdens that would be imposed on airlines were

they required to comply with state and local wage laws

concerning flight attendants,14 then, is more

substantial than merely complying with the wage laws

of the state where each FA is based.15 Instead,

SkyWest would be forced to contend with the wage

14 This opinion is based on facts alleged with respect to flight

attendants only; no suggestion that the Dormant Commerce

Clause exempts other airline employees from state and local wage

regulation is intended.

15 Even that burden could be substantial.

As SkyWest notes,

bases change frequently. Further, as the plethora of statutes on

which plaintiffs rely for their non-FLSA claims confirm, it will

often be the case that more than one jurisdiction can lay claim to

being the location where an FA is “based.” The California “based”

plaintiffs, for example (plaintiffs Tapp, Sitavich, and Lozano),

assert claims based not only on California law, but also on

ordinances enacted by Los Angeles and San Francisco. And

although the plaintiffs do not invoke it because it was enacted

after the period of their claims, the City of Chicago, where

plaintiffs Hirst, Stover, and Sze were “based,” has also adopted

its own minimum wage law. As of November 15, 2017, some 39

cities and counties have adopted their own minimum wage laws;

SkyWest flies to many of them. See Inventory of Local Minimum

Wage Ordinances (Cities and Counties), U.C. Berkeley Center for

Labor

Research

and

Education,

available

at

http://laborcenter.berkeley.edu/minimum-wageliving-wageresources/inventory-of-us-city-and-county-minimum-wageordinances/ (last visited Nov. 29, 2017).

43a

laws of each state in which an FA works. And because

FAs routinely work in multiple states (and cities) on

any given day, and in different combinations of states

and cities for any given route assignment, the

compliance burdens that would be imposed on

SkyWest to pay its FAs in accordance with the

applicable laws of all of the states and cities in which

they performed work would be monumental. In order

to do so, SkyWest would have to (1) measure each

increment that each FA spends on the ground in each

of the 43 states in which it operates, (2) determine the

precise extent to which each wage law in the states

and localities in which it operates applies and/or

applies extraterritorially, and then (3) ensure

compliance with a different set of wage laws and

ordinances for each FA based on the amount of time

they spent in each state and locality. Because an FA’s

pairings often shift from week to week, and involve

multiple jurisdictions each day, SkyWest would have

to comply with a different patchwork of wage laws for

the same employee virtually every day. And even if it

could do so, SkyWest would still be forced to contend

with the result of applying this patchwork of local

wage and hour laws—namely, that FAs doing

precisely the same work, on the same routes, would be

subject to different wage requirements based on where

they were domiciled, or based, or worked the most. As

the court noted in its earlier opinion, this is precisely

the kind of onerous burden on interstate commerce

that the Commerce Clause prohibits, even in the face

of weighty state interests in protecting workers and

providing a living wage. See Bibb v. Navajo Freight

Lines, Inc., 359 U.S. 520, 527 (1959) (stressing “the

44a

need for national uniformity in the regulations for

interstate travel”).

Although the plaintiffs principally engage with

Dormant Commerce Clause theories not at issue

here,16 they rely heavily on Bernstein v. Virgin

America, Inc., 227 F. Supp. 3d 1049 (N.D. Cal. 2017)

in which a district court rejected an airline’s Dormant

Commerce Clause challenge to California wage laws.

In Bernstein, the court first determined that California

uses a multi-factor test to determine when its wage

laws apply to work conducted elsewhere, considering

the employee’s residency, where the employee received

her pay, the employee’s principal job situs, the

employer’s residency, and the extent to which the

employee worked outside the state. Id. at 1060. Based

on this premise, the court ruled that because both the

airline and the plaintiff employees had deep ties to

California, California’s labor laws would apply to the

plaintiffs wherever they might work, inside the state

or outside. The court rejected the airline’s premise

that if it was forced to comply with California labor

law, “it [would] necessarily have to comply with other

states’ wage and hour laws, too.” Id. at 1065. The court

reasoned that in the absence of evidence that other

states had equally deep ties to the airline and its flight

attendants, there was no basis to conclude that other

states would require the airline to abide by their wage

and hour laws. Id. at 1066. And because only

16

For example, plaintiffs extensively discuss a Dormant

Commerce theory concerning the extraterritorial effect of state

statutes, as opposed to the operative issue here, which is the

Dormant Commerce clause’s prohibition on statutes that

excessively burden interstate commerce.

45a

California law would apply, in the Bernstein court’s

view, there was only a minimal administrative burden

on the defendant, who only had to comply with

California law.

Respectfully, this court does not find Bernstein’s

analysis persuasive and the case is distinguishable in

any event. The problem with Bernstein is that the

court assumed that only California law would apply to

flight attendants who are based in California, when in

reality, each state and locality defines the parameters

of its own wage laws. That California asserts, for

whatever reason, that its labor law applies to an FA

does not, of course, preclude another state from

similarly claiming that its labor laws apply to that FA.

Nor does it explain why any state would not, at a

minimum, take the position that its labor laws apply

to its residents performing work within its borders.

SkyWest cannot assume that the wage laws of 42 other

states do not apply merely because it complies with the

laws of the state in which its FAs are based. For

example, as the Bernstein court acknowledges with no

sense of irony, “‘California applies its Labor Code

equally to work performed in California, whether that

work is performed by California residents or by out-ofstate residents.’” Id. at 1067 (quoting Sullivan v.

Oracle Corp., 662 F.3d 1265, 1271 (9th Cir. 2007)). So

do many other states. Why, then, if FAs are subject to

state and local wage and hour laws, is it unreasonable

to posit that those states and cities, too, would seek to

enforce their laws on California-based FAs working

within their borders? It isn’t. Indeed, it can be

assumed that if California, or any other state, were

permitted to enforce its labor laws against interstate

airlines, every other state would also be permitted to

46a

enforce their labor laws to the extent applicable. See

Legato Vapors, LLC v. Cook, 847 F.3d 825, 834 (7th

Cir. 2017) (holding that “the threat of inconsistent

regulation, not inconsistent regulation in fact, is

enough” to implicate the Dormant Commerce Clause).

In assuming that only California law would apply to

the plaintiffs, then, the Bernstein court substantially

underestimated the extent of the administrative

burden it imposed on the defendant in requiring it to

comply with state and local wage laws.

Bernstein is in any event distinguishable; there

Virgin Atlantic was based in California, formulated its

wage policies in California, operated primarily in

California, and the employees at issue were all

California residents. Bernstein, 227 F. Supp. 3d at

1066. Here, SkyWest is not based in any of plaintiff’s

states and plaintiffs’ premise is not that the law of any

one of their states applies to all of them. Bernstein’s

understanding that only California law would apply to

the FAs in question is decidedly not the premise of the

plaintiffs here. Rather, the plaintiffs assert that

multiple state (and local) laws apply to FAs, depending

solely on where they are based. But if Bernstein

stands for anything, it is that application of state wage

law may turn on more than the single factor of where

someone is based. Bernstein really proves SkyWest’s

point: many states (or plaintiffs seeking the benefit of

a state’s wage laws) may take very aggressive

positions about application of their laws to FAs who

live, or are based, or work temporarily within, their

borders, creating a massive compliance burden.

Indeed, if state and local wage laws could apply to

SkyWest FAs, SkyWest would be forced to determine

which state and local wage laws apply based on the

47a

precise amount of time each FA spends in each locale,

and then comply with a different set of wage laws on a

weekly, daily, or even hourly basis. This isn’t a

logistical conundrum; it’s a logistical nightmare.

In short, the plaintiffs have done nothing to

persuade the court to change its earlier ruling with

regard to the Dormant Commerce Clause. Application

of state wage and wage statement laws to SkyWest’s

FAs would impose a substantial burden on SkyWest

that the Commerce Clause does not abide. See, e.g.,

Ward v. United Airlines, Inc., No. C 15-02309, 2016

WL 3906077, at *5 (N.D. Cal. July 19, 2016) (holding

that the local benefits of California’s wage statement

laws were “outweighed and even undermined by the

burden that would result from application of [the law]

and comparable laws in other states to this class of

pilots”);17 FitzGerald v. Skywest Airlines, Inc., No.

01129514, 2005 WL 3118764, at *1–2 (Cal. Sup. Ct.

Oct. 13, 2005), aff’d, 65 Cal. Rptr. 3d 913 (Ct. App.

17

The Bernstein court criticized Ward’s conclusions with

regard to the Dormant Commerce Clause as “entirely dependent

on its erroneous conclusion that California law only applies to

individuals who work principally or exclusively in California.”

Bernstein, 227 F. Supp. 3d at 1066. In the Bernstein court’s view,

airlines would not have to “monitor the pilot’s precise hours spent

working in each state and determine which state’s laws applied”

because “principal job situs is not dispositive of whether

California law applies to the Plaintiffs.” But this criticism is

again based on the faulty assumption that California law is the

only applicable law. Moreover, Bernstein’s assertion that airlines

would not have to keep track of the times a pilot or flight

attendant worked in each state is questionable given that it cites

job situs as a factor—albeit non-dispositive—in determining

whether California law applies. See id. at 1060.

48a

2007). The court therefore dismisses plaintiffs’ state

law claims with prejudice.18

***

For a second time, the plaintiffs have failed to

adequately plead that they were ever paid under the

federal minimum wage over the course of a workweek,

foreclosing their Fair Labor Standards Act claims.

Their remaining claims rely on various state and local

wage laws, but the application of these laws is

foreclosed by the Dormant Commerce Clause. The

plaintiffs’ complaints are therefore dismissed with

prejudice.

Dated:

November 30, 2017

18

John J. Tharp, Jr.

United States District Judge

In view of this ruling, it is not necessary to consider

SkyWest’s arguments against the applicability of each of the

state and local wage laws on which various plaintiffs have

asserted claims.

49a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREA HIRST, MOLLY

STOVER, and EMILY

STROBLE SZE,

on behalf of themselves

individually and all others

similarly situated,

Plaintiffs,

v.

SKYWEST, INC. and

SKYWEST AIRLINES, INC.,

Defendants.

)

)

)

)

)

) No. 15 C 02036

) Judge John J.

) Tharp, Jr.

)

)

)

)

)

MEMORANDUM OPINION AND ORDER

The plaintiffs, Andrea Hirst, Molly Stover, and

Emily Stroble Sze, are former flight attendants

(“FAs”) with SkyWest Airlines, Inc. They bring this

action on behalf of themselves and all other similarly

situated FAs who were paid hourly wages by SkyWest,

Inc. and SkyWest Airlines, Inc. (collectively,

“SkyWest”) within the three years prior to the filing of

this suit.

The plaintiffs allege that SkyWest’s

compensation scheme—under which they were not

50a

paid based upon the total hours they worked in a given

duty day but only for the number of block time hours

they worked when the aircraft’s main cabin door was

closed—violates the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. §§ 206, 216(b), and the Illinois

Minimum Wage Law (“IMWL”), 820 Ill. Comp. Stat.

105/1–15.

The defendants move to dismiss the

Amended Complaint under Rule 12(b)(6) for failure to

state a claim and move to dismiss the IMWL claim

under Rule 12(b)(1) for lack of subject matter

jurisdiction. Mt. Dismiss, ECF No. 35. As will be

explained, the characterization of some of SkyWest’s

arguments as jurisdictional is mistaken, but the error

is of no consequence. For the following reasons, the

motion to dismiss is granted.

BACKGROUND1

I.

Flight Attendant Duties, Schedules, and

Compensation

Defendant SkyWest, Inc. is the parent company of

defendant SkyWest Airlines, Inc. and another airline

(ExpressJet Airlines, Inc.) that is not involved in this

litigation. Am. Compl. ¶ 42, ECF No. 22. The

plaintiffs state, “upon information and belief,” that

SkyWest currently employs approximately 2,663 FAs,

with 389 based out of Chicago O’Hare International

Airport. Am. Compl. ¶ 44.

The plaintiffs are former FAs with SkyWest: Andrea

Hirst was employed from April 20, 2010 until May 10,

1 As this is a motion to dismiss, the Court accepts all well-

pleaded facts as true and construes all inferences in favor of the

plaintiff. Zemeckis v. Global Credit & Collection Corp., 679 F.3d

632, 634 (7th Cir. 2012).

51a

2015 and was based out of O’Hare Airport for the

majority of her tenure with SkyWest (the Amended

Complaint does not indicate where else Hirst was

based or for what period of time). Am. Compl. ¶ 35.

Molly Stover was employed from August 9, 2012 until

November 2014 and was based out of O’Hare the

entirety of her tenure with SkyWest. Am. Compl. ¶

36. Emily Stroble Sze was employed from June 2010

until September 2012 and was based out of O’Hare the

majority of her tenure with SkyWest (again, the

Amended Complaint does not indicate where else Sze

was based or for what period of time). Am. Compl. ¶

37.2

The schedules of SkyWest FAs are recorded down to

the minute in the SkedPlus+ system. Am. Compl. ¶ 9.

The minute-by-minute schedule for an FA’s series of

work trips (a “pairing”) is recorded in the “paring

details.” Am. Compl. ¶ 11, Fig. 1. The pairing details

reflect the actual circumstances of the pairing as flown

and are available for each employee for the past

several years on the SkedPlus+ system. Am. Compl. ¶

12. The pairing details identify the FA by her

employee number and name, list her domicile, level of

training, and position. Am. Compl. ¶ 13. The details

list the FA’s “report time”—the time at which she must

have arrived at the airport in uniform with all of her

mandatory items for duty, cleared security, and

checked in electronically on SkyWest’s computer

system. Am. Compl. ¶¶ 14, 54–60. If an FA reports

earlier than is listed on the pairing details, the

2 Because all of the named plaintiffs are women, this opinion

uses female pronouns.

52a

required time rather than the actual report time is

recorded. Id.

Each flight has a “block time,” which is the actual

length of time that it took to fly between the two

destinations on the specific day; block time begins with

“block out,” when the main cabin door is closed and the

aircraft moves away from the jet bridge, and ends with

“block in,” when the aircraft arrives at the destination

jet bridge and the main cabin door is opened. Am.

Compl. ¶ 18. Block time is closely related to “credit

time,” which is the time a flight (called a “leg”) is

estimated to take. Am. Compl. ¶¶ 22, 25. FAs are

entitled to hourly compensation based on the greater

of the two time periods: When block time is less than

credit time (i.e., the flight landed early), FAs are

compensated based on the estimated credit time. Am.

Compl. ¶ 25. When block time exceeds credit time,

FAs are entitled to additional compensation based on

the block time and must submit a payroll correction

form to receive the increased compensation. Am.

Compl. ¶¶ 26, 80.

Some of the duties of a SkyWest FA are: “to ensure

the safety of the passengers through required

inspections of the aircraft prior to and after each flight,

to assist passengers while the passengers are boarding

or are onboard the aircraft, to provide customer service

such as serving meals and drinks, and to assist

passengers and the flight crew until all passengers

have departed from the aircraft.” Am. Compl. ¶ 50.

Once on board but prior to closing the cabin door, FAs

must perform a number of duties mandated by the

Federal Aviation Administration (“FAA”), including

but not limited to: conducting a preflight and preboarding safety check, participating in a pre-flight

53a

briefing with other crew members, and verifying that

the commissary supply is sufficient. See Am. Compl.

¶ 61. After the aircraft blocks in and all passengers

have deplaned, FAs must perform additional duties

required by the FAA: they must, for example, check all

emergency and safety equipment to verify that

nothing has been tampered with during the flight,

remove all trash, straighten and cross seatbelts, fold

blankets, and clean the cabin (except on the final flight

of the day), and verify that the aircraft is stocked and

ready for subsequent flights, among other things. Am.

Compl. ¶ 68.

The time between scheduled legs on a duty day is

recorded as “turn time”: if turn time is fewer than 45

minutes, FAs are generally not permitted leave the

airplane (and are strictly prohibited from leaving the

aircraft while any passenger remains on board). Am.

Compl. ¶¶ 19, 67. If the turn time lasts more than an

hour, FAs may leave the plane but are required to

remain in the airport and in full uniform. Am. Compl.

¶ 20. Any unanticipated delays (e.g., mechanical

problems or weather delays) are recorded as turn

times; FAs are not compensated during either

scheduled or unanticipated turn times. Am. Compl.

¶¶ 21, 64. Nor do SkyWest FAs receive any “holding

pay” for circumstances where passengers are onboard

but the plane is held at the gate. Am. Compl. ¶ 64.

The “release time,” marking the end of an FA’s daily

shift, is automatically set at 15 minutes after the cabin

door is opened on the last flight of the day. Am. Compl.

¶ 15. The time between an FA’s report time and

release time is her “duty day,” during which time FAs

are required to be in uniform and are under SkyWest’s

direction. Am. Compl. ¶ 16. The maximum length of

54a

an FA’s duty day is regulated by the FAA. Am. Compl.

¶ 17; see 14 CFR 121.467(b) (setting an FA’s maximum

duty day at 14 hours, with limited exceptions). FAs

work between one and seven or more legs in any given

duty day and are guaranteed a minimum of four hours

of block time for every duty day. Am. Compl. ¶¶ 53,

74.

The pairing details include a “trip summary,” which

lists the first report time and the last release time of

the entire pairing, the total length of the pairing (“time

away from base”), and the cumulative block time and

credit time for the entire pairing. Am. Compl. ¶ 27. In

addition to the hourly compensation based on the

credit and block time, FAs receive a non-taxable per

diem of $1.80 per hour for every hour of time away

from base. Am Compl. ¶ 28. If an FA volunteers to be

“junior manned” (i.e., work overtime), she is paid at

one and one half times her regular hourly rate. Am.

Compl. ¶ 80(C) and n.6.

II.

The Plaintiffs’ Experiences as SkyWest

FAs

The Amended Complaint describes two of Andrea

Hirst’s SkedPlus+ pairings: in the first, a four-day trip

from October 30, 2012 through November 2, 2012,

Hirst was compensated for a total of 19 hours and 10

minutes (her credit time, which exceeded her block

time of 18 hours and 19 minutes). Am. Compl. ¶ 29.

The Amended Complaint alleges that Hirst should

have been compensated for all of her duty time in those

four days, a total of 33 hours and 44 minutes. Am.

Compl. ¶ 29. In the second example, the Amended

Complaint focuses on a single day, December 22, 2014,

during which Hirst’s first leg was delayed by

55a

approximately six hours (which, as it was not block

time, was uncompensated) due to late arrival of the

aircraft: on that day, Hirst’s duty day totaled 14 hours

and 49 minutes, but she was compensated for a total

of 7 hours and 48 minutes. Am. Compl. ¶¶ 99–101. In

total during the four-day pairing from December 21,

2014 through December 24, 2014 (including December

22), Hirst’s duty time totaled 37 hours and 48 minutes

and credit time (because credit time again exceeded

block time) totaled 24 hours and 55 minutes. See Am.

Compl. Fig. 3. The Amended Complaint does not

include Hirst’s hourly rate for either of these examples

or the amount she received as compensation for either

pairing. The Policy Manual, however, includes a chart

of FAs’ hourly rates (to which the plaintiffs refer, see

Am. Compl. ¶ 80(A) and n.5) based on an FA’s years of

service with SkyWest. See Am. Compl. Ex. 2 § 2327.

Hirst began work as an FA with SkyWest in 2010 and

had served two years at the time of the first example

pairing in late 2012, so it appears that her hourly rate

would have been $22.49. Id. There is no information

as to Hirst’s hourly rate in 2014 (the chart only

extends through 2012), which likely increased due to

her additional experience. (The hourly rate in 2012 for

an FA with four years of experience was $24.73.) Id.

As to Molly Stover, the Amended Complaint does

not include any pairing details or any specific

examples of the hours she worked or the compensation

she received.

Rather, the Amended Complaint

generally describes two experiences in which Stover

experienced flight delays, once in February or March

of 2014, where she had an unscheduled stay overnight

and returned to her base in Chicago the following day,

and once in the summer of 2014, when she was delayed

56a

for five hours. Am. Compl. ¶¶ 102–104. In both

instances, Stover did not receive “additional wage

compensation” for her extended duty day. Id.

The factual allegations with respect to Sze are even

more limited: Sze asserts that she was not informed

that her block pay would be averaged across her

workday but, instead, was told that the per diem

reimbursement was how she would be compensated

for all other hours. Am. Compl. ¶ 108. She received

one and one half times her regular rate only when she

was “junior manned” (i.e., voluntarily accepted an

overtime pairing, see Am. Compl. ¶ 80(C) n.6) and

worked on a scheduled day-off. Am. Compl. ¶ 109. As

with Stover, there are no allegations regarding the

hours Sze worked, her hourly wage, or the amount of

compensation she received.

Generally, the Amended Complaint asserts that

because SkyWest’s compensation scheme does not

adjust to unexpected delays and longer than scheduled

duty days, “the FAs are at risk of and do actually

receive less than the Federal minimum wage [and the

Illinois minimum wage] on certain workdays, even if

this Court were to adopt a weekly averaging of wage

compensation.”

Am. Compl. ¶¶ 133, 146.

Additionally, the plaintiffs assert that “SkyWest FAs

are not paid at a higher rate of pay for hours worked

over 40 per week. At most, flight attendants receive a

$3.00 per hour increase for working over 87 ‘block

hours’ in a month.” Am. Compl. ¶ 148. The plaintiffs

allege that SkyWest does not verify compliance with

minimum wage laws “for every FA for every week” and

that due to the “unnecessary complexity of SkyWest’s

pay stubs. . . FAs are unlikely to be able to accurately

determine their true hourly compensation if and when

57a

they have reason to believe they are being under

compensated.” Am. Compl. ¶ 92.

III.

Flight Attendant Representation

SkyWest FAs are not represented by a union, but

SkyWest InFlight Association (“SIA”), an organization

of FAs, negotiates FAs’ work responsibilities and

benefits with SkyWest management on behalf of all

FAs. Am. Compl. ¶¶ 3–4; Ex. 2 § 2303 (letter of

agreement between SkyWest and SIA). The policies

and benefits negotiated between SIA and SkyWest are

memorialized in the Flight Attendant Policy Manual.

Am. Compl. ¶ 4 and Ex. 2.

The plaintiffs allege “upon information and belief”

that SkyWest refers to the Policy Manual as a

collective bargaining agreement (“CBA”), although the

Policy Manual does not include “any compulsory

mediation requirements, an arbitration clause,

discussion of any ‘cooling off period’ or ‘self-help’

provisions or restrictions.” Am. Compl. ¶¶ 5–6, 82–83.

They also assert that SkyWest’s employment policy

(Am. Compl. Ex. 6) does not refer to its negotiations

with SIA or the Policy Manual as a collective

bargaining agreement and merely describes SIA’s

“input” in management decisions. Am. Compl. ¶ 82.

The plaintiffs allege that SIA and the comparable

pilots’ association have no bargaining power with

respect to uncompensated work hours because

SkyWest management “is and has been completely

unwilling to discuss or listen to employee input . . .

about paying hourly compensation for any time other

than block time.” Am. Compl. ¶ 85.

The Amended Complaint asserts that employee

grievances are unilaterally decided by SkyWest

58a

management, rather than through a mutually chosen

arbitrator or mediator. See Am. Compl. ¶ 83. The

Policy Manual includes a procedure for FAs to file

formal grievances when they have a disagreement

“concerning the interpretation of any terms” in the

Policy Manual: the FA submits the grievance to SIA;

if SIA determines the grievance is justified, it meets

with the “appropriate Company personnel for

corrective action or a satisfactory resolution.” Am.

Compl. Ex. 2 § 2325.3. It appears FAs can appeal the

decision on their grievance, although the Manual is

not clear to whom they appeal or how the appeal is

decided. See id. § 2325.4(C)–(D) (“Whenever two or

more employees have a common or similar complaint,

the flight attendant selects one or more of them to

represent the group. The final decision on the appeal

is binding on all members of the group.”).

Two of the plaintiffs, Hirst and Stover, filed a

Complaint on behalf of themselves and all other

similarly situated FAs against the defendants,

alleging that the failure to compensate FAs for every

hour they worked violates the FLSA and the IMWL

and that failure to compensate FAs at a higher rate for

hours worked in excess of 40 hours per week violates

the IMWL. See Compl., ECF No. 1. Shortly thereafter,

the plaintiffs filed the Amended Complaint, adding

Sze as an additional plaintiff. See Am. Compl. ¶¶ 37,

107–110. In addition to monetary damages for unpaid

wages, the Amended Complaint seeks a declaration

requiring that SkyWest explain various aspects of its

compensation scheme to current and former FAs and

an injunction barring SkyWest from referring to the

per diem payment as “per diem pay” or “per diem

wages.” Am. Compl. ¶¶ 157–63. The plaintiffs filed a

59a

“placeholder” motion for class certification, see ECF

No. 23, which this Court denied after the Supreme

Court issued its opinion in Campbell-Ewald Co. v.

Gomez, 136 S. Ct. 663 (2016). See Min. Orders, ECF

Nos. 60–61. The plaintiffs also filed a motion to

proceed as a collective action, for tolling of the statute

of limitations, for court- authorized notice, and for

disclosure of the contact information of the potential

opt-in plaintiffs. See Pl. Misc. Mt., ECF No. 24. The

defendants have moved to dismiss the Amended

Complaint for failure to state a claim and for lack of

subject matter jurisdiction. Because the jurisdictional

challenge pertains only to a subset of the plaintiffs’

claims (the state law IMWL claims), and is not

actually a challenge to this Court’s jurisdiction, and

because the discussion of the plaintiffs’ FLSA claims

will inform discussion of the state law claims that are

the subject of that aspect of the defendants’ motion,

the FLSA claims will be addressed first.

DISCUSSION

“To survive a motion to dismiss under Rule 12(b)(6),

a complaint must ‘state a claim to relief that is

plausible on its face.’” Adams v. City of Indianapolis,

742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “‘A claim

has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the

misconduct alleged.’” Adams, 742 F.3d at 728 (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although

notice pleading under Rule 8 is a more lenient

standard than the code pleading that preceded it, “it

does not unlock the doors of discovery for a plaintiff

armed with nothing more than conclusions.” Iqbal,

60a

556 U.S. at 678–79. A court must accept all of the

plaintiff’s factual allegations as true when reviewing

the complaint, but conclusory allegations merely

restating the elements of a cause of action do not

receive this presumption: “a court considering a

motion to dismiss can choose to begin by identifying

pleadings that, because they are no more than

conclusions, are not entitled to the assumption of

truth.

While legal conclusions can provide the

framework of a complaint, they must be supported by

factual allegations.” Id. at 679; see also Twombly, 550

U.S. at 555 (“a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’ requires more

than labels and conclusions”).

I.

FLSA Claim

The FLSA requires that “[e]very employer shall pay

to each of his employees who in any workweek is

engaged in commerce. . . not less than—$7.25 an

hour.” 29 U.S.C. § 206(a)(1)(C). But how is it

determined whether an employee has received that

hourly rate? The rate may vary depending on the

methodology used.

Consider, for example, an

employee (we’ll call him Joe) who is paid a flat rate of

$60 per work day and works no more than 40 hours a

week but on a varied schedule, some days working up

to 12 hours per day and others working as few as 4

hours. If Joe’s hourly rate is computed on a daily

basis, on a 12-hour day his rate of pay would be $5 per

hour ($60/12 hours), below the required minimum

wage. But if his schedule is computed on a weekly

basis, and he works 40 hours during the week, Joe’s

hourly rate of pay would be $7.50 ($300/40 hours), 25

cents per hour above the required minimum wage.

61a

A consistent methodology for determining the wage

paid is therefore required. In determining whether an

employer has violated the minimum wage provision of

the FLSA, courts uniformly calculate the hourly wage

over the course of a workweek—i.e., dividing the total

compensation an employee received in a workweek by

the compensable hours worked. Although the Seventh

Circuit has not expressly addressed this issue, every

circuit court that has considered the issue has utilized

the workweek averaging approach to determine

whether a FLSA violation occurred. See, e.g., Adair v.

City of Kirkland, 185 F.3d 1055, 1063 (9th Cir. 1999)

(“The district court properly rejected any minimum

wage claim the officers might have brought by finding

their salary, when averaged across their total time

worked, still paid them above the minimum wage.”);

U.S. Dep’t of Labor v. Cole Enterprises, Inc., 62 F.3d

775, 780 (6th Cir. 1995) (“[A]n employer meets the

minimum wage requirements if the total weekly wage

paid is equal to or greater than the number of hours

worked in the week multiplied by the statutory

minimum hourly rate.”); Hensley v. MacMillan Bloedel

Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986) (“no

[FLSA] violation occurs ‘so long as the total weekly

wage paid by an employer meets the minimum weekly

requirements of the statute, such minimum weekly

requirement being equal to the number of hours

actually worked that week multiplied by the minimum

hourly statutory requirement.’”

(quoting United

States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487,

490 (2d Cir. 1960)); Dove v. Coupe, 759 F.2d 167, 17172 (D.C. Cir. 1985) (“While the minimum wage laws

logically could be construed as requiring hour-by-hour

compliance, [ ] both administrative and judicial

62a

decisions established the workweek as the measuring

rod for compliance. . . .”); Olson v. Superior PontiacGMC, Inc., 765 F.2d 1570, 1576–77 (11th Cir.),

modified on other grounds, 776 F.2d 265 (11th Cir.

1985) (applying weekly averaging approach to

example compensation scheme); Blankenship v.

Thurston Motor Lines, 415 F.2d 1193, 1197–98 (4th

Cir. 1969) (applying the weekly averaging approach).

The U.S. Department of Labor endorses the weekly

averaging approach as well. See, e.g., 29 C.F.R.

§§ 776.4 (“The workweek is to be taken as the

standard in determining the applicability of the

[FLSA].”); 776.5 (requirement that minimum wages

shall be paid “at a rate not less than a specified rate

‘an hour’ . . . means that whatever the basis on which

the workers are paid, whether it be monthly, weekly,

or on a piecework basis, they must receive at least the

equivalent of the minimum hourly rate”); 778.105

(“For purposes of computing pay due under the Fair

Labor Standards Act, a single workweek may be

established . . . .”).

The plaintiffs nevertheless argue for the adoption of

a daily minimum wage determination. They assert

that “SkyWest’s wage compensation plan does not

sufficiently adapt . . . such that every hour of every FAs’

workday is compensated at no less than the applicable

minimum wage. Therefore, upon information and

belief, the FAs are at risk of and do actually receive

less than the Federal [and Illinois] minimum wage on

certain workdays.” and Am. Compl. ¶¶ 133, 146

(emphasis added). They don’t offer any legal authority

for this novel daily compliance determination,

asserting only that “the possibility [of such an

approach] has not been precluded in the district courts

63a

[in the Seventh Circuit].” Resp. 11, ECF No. 51 (citing

Dominguez v. Quigley’s Ir. Pub, Inc., 790 F. Supp. 2d

803, 816 (N.D. Ill. 2011); Solis v. Saraphino’s, Inc., No.

09-CV-954, 2011 WL 1532543, at *4 (E.D. Wis. Apr.

22, 2011)).

The Court is persuaded by the

overwhelming authority applying the workweek

averaging approach, and the lack of authority

endorsing the daily compliance approach, that the

workweek averaging approach is the appropriate

method for determining a FLSA violation.

The plaintiffs repeatedly assert that SkyWest

violated the FLSA by failing to compensate them for

every hour they worked in the performance of “integral

and indispensable activities.” See, e.g., Am. Compl. ¶¶

53, 68, 78, 86, 128, 131–32, 145; Resp. 14–15. Any

activity that is integral and indispensable to an

employee’s principle activity—i.e., “it is an intrinsic

element of those activities and one with which the

employee cannot dispense if he is to perform his

principal activities”—is compensable under the FLSA.

Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513,

517 (2014). The plaintiffs, however, misunderstand

the term “compensable” as used in reference to the

FLSA. Even assuming that every hour of an FA’s duty

day is spent performing “integral and indispensable

activities,” and thus, is compensable, that does not

mean the plaintiffs must be paid an hourly wage for

that specific hour; it means that such an hour must be

included in the calculation of the total hours worked

in that workweek for minimum wage and overtime

determinations. Cf. Sandifer v. U.S. Steel Corp., 678

F.3d 590, 592 (7th Cir. 2012), aff’d, 134 S. Ct. 870

(2014) (noting that hours worked under FLSA—i.e.,

compensable time—is “the time during which an

64a

employee is entitled to be compensated at the

minimum hourly wage”).3

To state a FLSA claim under the workweek

averaging approach, then, the plaintiffs must

plausibly allege at least one workweek for which the

compensation they received, divided by their total

compensable time, failed to meet the FLSA minimum

wage of $7.25 per hour. They have not done so. As an

initial matter, the Amended Complaint does not even

include any of the named plaintiffs’ hourly wages or

any examples of the total compensation they received

for any workweek. As to Stover and Sze, the Amended

Complaint also lacks any allegations concerning the

number of hours worked in any given week. Without

such information, it is impossible to determine

whether their compensation violated the minimum

wage provision of the FLSA. Although the Amended

Complaint asserts that Stover and Sze did not receive

compensation for all the hours they work, as already

explained, that is insufficient to state a FLSA

violation. Stover and Sze have, thus, failed to plead

facts showing that SkyWest failed to compensate them

in accordance with the FLSA minimum wage

provisions; the motion to dismiss is granted without

prejudice as to these claims.

With respect to Hirst, based on the hourly wage

chart in the Policy Manual attached to the Amended

Complaint and the two examples of pairing details, the

3 SkyWest is not, as the plaintiffs argue, making a de minimus

argument regarding all time FAs work other than block time. See

Resp. 13–14. SkyWest includes every hour of Hirst’s example

duty days as compensable time in their calculations of her

average weekly wage. See Mem. in Supp. 7 and n.3.

65a

defendants piece together Hirst’s likely compensation

for the two example pairings (assuming, as the

plaintiffs assert, that each hour of the duty day was

“compensable”):

Example 1: October 30, 2012 – November 2, 2012:

Credit Time:4

x Hourly Rate:

Total Compensation:

÷ Total Duty Time:5

Hourly

Compensation:

19 hours, 10 minutes

$22.49

$431.06

33 hours, 44 minutes

$12.78

Example 2: December 21, 2014 –

December 24, 2014:6

4 In both examples, Hirst would have been paid for credit time

rather than block time (assuming she submitted the payroll

correction forms), as it was the longer of the two periods. See Am.

Compl. ¶¶ 25–26; Figs. 1, 3.

5 The four duty days in this pairing lasted: (1) 6 hours and 24

minutes; (2) 8 hours and 34 minutes; (3) 11 hours and 57 minutes;

and (4) 6 hours and 49 minutes, for a total of 33 hours and 44

minutes. See Am. Compl. Fig. 1.

6 The Court’s calculations differ from the defendants’ in the

second example. The Court used credit time, which exceeded

block time, to calculate Hirst’s total compensation. Additionally,

the Court’s calculation of Hirst’s total duty time is 37.8 hours

(duty day totals: (1) 9 hours and 23 minutes; (2) 14 hours and 49

minutes, (3) 5 hours and 1 minute; and (4) 8 hours and 35

minutes, for a total of 37 hours and 48 minutes), rather than

37.865 hours. See Mem. in Supp. 7 n.3; Am. Compl. Fig. 3. The

defendants’ calculations result in an average weekly wage of

$13.74 per hour, still far above the federal minimum wage of

$7.25. See Mem. in Supp. 7 n.3.

66a

Credit Time:

x Hourly Rate:7

Total Compensation:

÷ Total Duty Time:

Hourly

Compensation:

24 hours, 55 minutes

$22.49

$560.38

37 hours, 48 minutes

$14.82

See Am. Compl. Figs. 1, 3.8

Applying the workweek averaging approach to each

example pairing, Hirst received average hourly wages

of $12.78 and $14.82, respectively, well over the

federal minimum wage of $7.25 per hour. While it is

possible that over the course of their tenure with

SkyWest the plaintiffs worked one or more series of

lengthy duty days due, not to long flights (for which

time they would have been compensated) but to delay

and or/mechanical issues (for which time they would

not have been compensated) and, as a result, received

only the minimum guaranteed four hours of block time

pay each day—resulting in a workweek average below

the federal minimum wage. That such a scenario

could possibly occur under SkyWest’s compensation

scheme, however, is insufficient to state a plausible

claim; the plaintiffs have not provided a single

instance where SkyWest failed to pay an FA the

7 SkyWest applied Hirst’s hourly rate as of 2012, which likely

would have increased by 2014 as she had an additional two years

of experience and as the hourly wage chart in the Policy Manual

included a 1% increase in rate per year for 2010–2012. See Mem.

in Supp. 7 n.3; Ex. 2 2327.

8 The defendants note that they did not include the $1.80

hourly per diem in their calculation of Hirst’s compensation. See

Mem. in Supp. 7 n.2.

67a

minimum wage as mandated under federal law over

the course of a workweek. As such, Hirst’s FLSA

claim, like those of Stover and Sze, is dismissed

without prejudice.9

II.

IMWL Claims

The plaintiffs also assert wage and overtime pay

claims under the IMWL. These claims suffer from the

same failure to plead inadequate compensation over

the course of a workweek. Beyond that shortcoming,

which in theory can be corrected, the plaintiffs’ IMWL

claims suffer from several other defects that cannot be

remedied.

A. Pleading Deficiencies

The IMWL promises Illinois workers a higher

minimum wage than does federal law. The IMWL

requires that “every employer shall pay to each of his

or her employees who is 18 years of age or older in

every occupation wages of not less than $8.25 per

hour.” 820 Ill. Comp. Stat. 105/4(a)(1). When

interpreting the IMWL, courts look to the FLSA for

guidance. See Mitchell v. JCG Indus., Inc., 745 F.3d

837, 846 (7th Cir. 2014) (citing Lewis v. Giordano’s

Enterprises, Inc., 921 N.E.2d 740, 745–46 (Ill. App. Ct.

2009); Bernardi v. Village of North Pekin, 482 N.E.2d

101, 102 (Ill. App. Ct. 1985)); see also 56 Ill. Admin.

Code § 210.120 (referring to the FLSA for guidance

interpreting the IMWL). For the same reasons their

9

The plaintiffs do not dispute the hourly wage SkyWest

attributed to Hirst or the calculated total compensation for the

example workweeks based on that hourly wage; in fact, the

plaintiffs do not respond at all to the specific mathematical

calculations of Hirst’s average hourly wage or SkyWest’s

arguments for dismissal based thereon.

68a

FLSA minimum wage claims are dismissed—failure to

plead any facts indicating they received less than

minimum wage in any given workweek—Stover and

Sze’s IMWL minimum wage claims must be dismissed.

Applying the workweek averaging approach to Hirst,

her average hourly wages of $12.78 and $14.82 exceed

the Illinois minimum wage of $8.25; accordingly, her

IMWL minimum wage claim fails. See Gatto v.

Mortgage Specialists of Illinois, Inc., 442 F. Supp. 2d

529, 537 n.5 (N.D. Ill. 2006) (applying workweek

averaging approach to determine compliance with the

FLSA and the IMWL); Ladegaard v. Hard Rock

Concrete Cutters, Inc., No. 00 C 5755, 2004 WL

1882449, at *5 (N.D. Ill. Aug. 18, 2004) (same).

The IMWL overtime claims fail for the same

reason:10 the plaintiffs have failed to plead any facts

showing that they worked over 40 hours in one week

and were not compensated at one and one half times

their hourly rate for the additional hours. See 820 Ill.

Comp. Stat. 105/4a(1). There are no allegations that

Stover worked overtime. See Am. Compl. ¶¶ 102–106.

Although

the

Amended

Complaint

includes

allegations that Sze worked overtime, it also states

that she was paid “one and one-half times her regular

pay” for that overtime work. Am Compl. ¶ 109. The

general allegation regarding overtime— “SkyWest

FAs are not paid a higher rate of pay for hours worked

over 40 hours per week,” Am. Compl. ¶ 148—is

inconsistent with the statement that FAs are paid

time and a half whenever they are junior manned,

10

The plaintiffs only bring an overtime claim under the

IMWL, as FAs are exempt from the overtime provision of the

FLSA. See 29 USC § 213(b)(3).

69a

which the Amended Complaint defines as having

voluntarily accepted an overtime shift. See Am.

Compl. ¶ 80(C) and n.6. The Policy Manual further

explains that when SkyWest assigns an FA a pairing

on a scheduled day off or requires that an FA is junior

manned, she is compensated at time and a half. See

Am. Compl. Ex. 2 §§ 2305, 2308.20. That Sze only

received one and one-half times her regular pay when

she was junior manned—i.e., worked overtime—does

not state a violation of the IMWL overtime provision;

rather, it acknowledges that she was paid time and a

half when she worked overtime.

With respect to Hirst, and extrapolating from the

pairing details she provides, the plaintiffs argue,

“Depending on the start and finish day of the

workweek, [Hirst] is likely to have . . . exceeded the 40

hours required under the IMWL.” Resp. 17 n.15. That

there is a possibility that Hirst had a workweek

exceeding 40 hours (and that she was not paid time

and a half for the additional hours) is insufficient to

satisfy Rule 8 and the plausibility standard of

Twombly and Iqbal. See Iqbal, 556 U.S. at 678 (“The

plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.”

(emphasis added)). Hirst has access to at least some

of her pairing details;11 if there is a workweek in which

11

The Amended Complaint notes that, although pairing

details are available for at least five years on the SkedPlus+

system, the information is only accessible to employees of the

airline. Am. Compl. ¶ 12. Nonetheless, the plaintiffs have at

least two of Hirst’s pairing details, which they include in the

Amended Complaint. There is no explanation of how they were

70a

she worked over 40 hours and was not compensated

accordingly, she is able to identify those facts. See

Runnion ex rel. Runnion v. Girl Scouts of Greater

Chicago & Nw. Indiana, 786 F.3d 510, 528 (7th Cir.

2015) (“[P]laintiffs’ ‘pleading burden should be

commensurate with the amount of information

available to them.’”). Because none of the plaintiffs

has alleged a single workweek in which she worked

any overtime hours that were not compensated at a

time-and-a-half rate, they have failed to state a

plausible IMWL overtime claim.

The plaintiffs’ attempt to invoke the IMWL,

moreover, cannot be cured simply by pleading that the

plaintiffs worked so much that they were paid less

than minimum wage or qualified for overtime. A claim

based on the IMWL must be based on work performed

in Illinois. “Because the IMWL is designed to protect

employees within the State of Illinois only, it does not

apply extraterritorially,” meaning it only protects

employees located within Illinois and only applies to

conduct occurring in Illinois. Wooley v. Bridgeview

Bank Mortgage Co., LLC, No. 14 C 5757, 2015 WL

327357, at *2, *3 (N.D. Ill. Jan. 23, 2015). State laws—

federal laws, too, for that matter—presumptively lack

extraterritorial reach. “When a statute gives no clear

indication of an extraterritorial application, it has

none.” Morrison v. Nat’l Australia Bank Ltd., 561 U.S.

247, 255 (2010); Avery v. State Farm Mut. Auto. Ins.

Co., 835 N.E.2d 801, 852 (Ill. 2005) (“the long-standing

rule of construction in Illinois” is “that a statute is

without extraterritorial effect unless a clear intent in

able to access these two pairing details and whether they have

access to additional examples.

71a

this respect appears from the express provisions of the

statute”) (internal quotation omitted). Thus, to state

a claim under the IMWL, the plaintiffs must not only

allege that they were not adequately compensated for

hours worked in a given workweek but also must

allege that the plaintiffs worked those hours in

Illinois. Cf. Glass v. Kemper Corp., 133 F.3d 999, 1000

(7th Cir. 1998) (holding that Illinois Wage Payment

and Collection Act did not apply where the plaintiff’s

work was outside the state).12 The plaintiffs’ Amended

Complaint fails to do so, and likely cannot because

there is no identified basis by which the work of FAs

performed within the territorial jurisdiction of the

state of Illinois (or any other state) was measured.13

B. SkyWest’s “Jurisdictional” Arguments

In addition to its arguments based on the plaintiffs’

failure to allege facts sufficient to plausibly establish

violations of the IMWL, SkyWest also asserts that the

12 The Illinois Department of Labor has similarly construed

the IWPC to apply only to work performed within Illinois. See

https://www.illinois.gov/idol/FAQs/Pages/wage-paymentfaq.aspx (“The work has to be performed in Illinois for an

employee to make a claim under the Act. For example, a truck

driver that lives in Illinois but travels throughout the United

States to perform their work is likely not covered by the Act.”)

(last visited May 23, 2016).

13 To track hours worked within a particular state, moreover,

another problem would have to be addressed. On what basis

would work at 35,000 feet constitute work within the state of

Illinois? The state has no sovereignty over the skies above it.

There is no “State of Illinois” airspace, only national airspace. See

49 U.S.C. § 40103(a) (“The United States Government has

exclusive sovereignty of airspace of the United States.”).

Arguably, then, virtually none of the flight time worked by the

plaintiffs can be said to have occurred within Illinois.

72a

IMWL claims must be dismissed pursuant to Rule

12(b)(1) because the Court lacks jurisdiction over

those claims. SkyWest maintains that the IMWL

claims are barred by the dormant Commerce Clause

and are preempted by Congress’s occupation of the

field of regulation relating to air travel, by its

enactment of the Aviation Deregulation Act (“ADA”),

and by the Railway Labor Act (“RLA”). Whatever the

substantive merit of these arguments (considered

below), neither the Commerce Clause nor any of the

preemptive acts asserted by SkyWest deprive the

court of jurisdiction to adjudicate the plaintiffs’ state

law claims.

As used in Rule 12(b)(1), “jurisdiction” refers to a

court’s authority to adjudicate a claim. Here, SkyWest

is not really arguing that the Court cannot adjudicate

the IMWL claim. Its argument is that the claim must

fail in this or any other court based on the substantive

content and effect of federal law (specifically, the

Commerce Clause, the Federal Aviation Act, the ADA,

and the RLA). To do what SkyWest urges here—to

apply federal law, whether constitutional or statutory,

to defeat a state law claim—is to exercise, not

abdicate, judicial authority. A party’s assertion of the

dormant Commerce Clause does not deprive the court

of jurisdiction; it asks the court to apply federal law to

defeat the claim that the party is liable under state

law. The long line of cases in which the Supreme

Court has held the dormant Commerce Clause to

invalidate applications of state law would not exist if

federal courts had no “jurisdiction” over cases in which

defendants invoke that constitutional provision. See,

e.g., Comptroller of Treasury of Maryland v. Wynne,

135 S. Ct. 1787, 1799 (2015) (“Legion are the cases in

73a

which we have considered and even upheld dormant

Commerce Clause challenges brought by residents to

taxes that the State had the jurisdictional power to

impose.”); Camps Newfound/Owatonna, Inc. v. Town

of Harrison, Maine, 520 U.S. 564, 575–76 (1997)

(invalidating higher state tax on charities conducted

principally for the benefit of non-residents as a

violation of the Commerce Clause). So, too, with

preemption doctrine; the assertion that federal law

preempts state law does not mean that the court has

no jurisdiction over the state law claim; it means that

the state law claim must fail on the merits. See, e.g.,

Healy v. Metro. Pier & Exposition Auth., 804 F.3d 836,

840–41 (7th Cir. 2015) (“we deem a dismissal of

preempted state law claims a 12(b)(6) dismissal for

failure to state a claim, a dismissal on the merits”);

Turek v. Gen’l Mills, Inc., 662 F.3d 423, 425 (7th Cir.

2011) (“the fact that a defendant has a good

[preemption] defense to a state law claim does not

mean that the complaint does not invoke federal

jurisdiction”).

It would be ironic, indeed, if the assertion of a

constitutional or statutory provision, or an argument

that an act of Congress has preemptive effect—both

essentially assertions of the Supremacy Clause of the

Federal Constitution—divested federal courts of

subject matter jurisdiction over state law claims that

were otherwise properly before the court. This Court

has supplemental jurisdiction—the authority to

adjudicate—over the plaintiffs’ IMWL claims

pursuant to 28 U.S.C. § 1367 because they are joined

with the plaintiffs’ federal FLSA claim. SkyWest’s

assertion of defenses founded on federal law,

constitutional and statutory, are properly before the

74a

Court. For the reasons already noted, and those that

follow, those state law claims must be dismissed, but

not because this Court lacks jurisdiction to adjudicate

them.

C. Commerce Clause

SkyWest argues that requiring a national airline to

comply with the IMWL is a substantial burden that

violates its right to engage in interstate commerce.

The Commerce Clause both affirmatively grants

power to Congress to regulate interstate commerce but

also implies a negative converse— “a substantive

‘restriction on permissible state regulation’ of

interstate commerce.” Dennis v. Higgins, 498 U.S.

439, 447 (1991) (quoting Hughes v. Oklahoma, 441

U.S. 322, 326 (1979)); see also S.-Cent. Timber Dev.,

Inc. v. Wunnicke, 467 U.S. 82, 87 (1984) (“[T]he Clause

has long been recognized as a self-executing limitation

on the power of the States to enact laws imposing

substantial burdens on such commerce.”).

This

negative implication—that states may not take

actions that unduly interfere with the affirmative

power of the federal government to regulate interstate

commerce—is generally known as the “dormant

Commerce Clause.” See, e.g., CTS Corp. v. Dynamics

Corp. of America, 481 U.S. 69, 87 (1987) (“The

principal objects of dormant Commerce Clause

scrutiny are statues that discriminate against

interstate commerce.”).

In considering whether a state regulation violates

the Commerce Clause, a court first determines if the

regulation directly discriminates against interstate

commerce or has the effect of favoring in-state

economic interests; if so, the state regulation is

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generally struck down. See Brown-Forman Distillers

Corp. v. New York State Liquor Auth., 476 U.S. 573,

578–79 (1986); see also Nat’l Solid Wastes Mgmt. Ass’n

v. Meyer, 63 F.3d 652, 657 (7th Cir. 1995). If the state

regulation is neutral on its face or only has indirect

effects on interstate commerce, the regulation “will be

upheld ‘unless the burden imposed on such commerce

is clearly excessive in relation to the putative local

benefits.’” Nat’l Solid Wastes, 63 F.3d at 657 (quoting

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

For example, in Bibb v. Navajo Freight Lines, 359

U.S. 520 (1959), an Illinois statute required truckers

to use a specific mudguard while operating on Illinois

highways—a mudguard not in common use and that,

if used on other states’ highways, would violate their

mudguard statutes. Id. at 522–23. Although Illinois

had a significant interest in regulating safety on its

highways, the Supreme Court held that the Illinois

statute placed an undue burden on interstate

commerce. Id. at 529. The Court expressed the

importance of national uniformity in certain

fields—”this regulation of mudguards is not one of

those matters ‘admitting of diversity of treatment,

according to the special requirements of local

conditions’ . . . .” Id. (quoting Sproles v. Binford, 286

U.S. 374, 390 (1932)).

The same principle of national uniformity is

applicable to the airline industry. See United Air

Lines, Inc. v. Indus. Welfare Comm’n, 28 Cal. Rptr.

238, 248 (Dist. Ct. App. 1963) disapproved of on other

grounds by Indus. Welfare Com. v. Superior Court, 613

P.2d 579 (Cal. 1980); see also Sompo Japan Ins., Inc.

v. Nippon Cargo Airlines Co., 522 F.3d 776, 779 (7th

Cir. 2008) (a goal of the Warsaw Convention was to

76a

create “uniformity in the aviation industry”); Am.

Airlines, Inc. v. Wolens, 513 U.S. 219, 232–33 (1995)

(noting the Airline Deregulation Act preemption

provision promotes national uniformity); Schultz v.

United Airlines, Inc., 797 F. Supp. 2d 1103, 1106 (W.D.

Wash. 2011) (same); Howell v. Alaska Airlines, Inc.,

994 P.2d 901, 904 (Wash. Ct. App. 2000) (same).

Here, the IMWL provisions would only apply to FAs

based in Illinois and only to the hours they worked in

Illinois. See Wooley, 2015 WL 327357, at *2, *3. To

calculate the time the plaintiffs worked to which the

IMWL would apply, SkyWest would have to track each

minute pre- or post-flight in Illinois and the amount of

turn time between flights that FAs spent in Illinois.14

Moreover, if the IMWL were applicable to SkyWest

FAs, then every state’s comparable laws would also

apply, subjecting SkyWest to 50 or more regulations

depending where each FA was physically located at a

particular moment in time.15 Requiring compliance

14 As noted infra, it might be argued that the IMWL does not

apply to any portion of the time FAs spend in flight over the state

of Illinois because that airspace is not within the state’s

sovereignty. But if it does, the complexity and burdens that

would attend its application to FAs would only strengthen the

argument for applying the Commerce Clause to bar its

application. To include flight time over the state, SkyWest would

be required to determine the precise minute each flight crossed

into and out of Illinois airspace and whether any FA on that

particular flight was based in Illinois. If changing a mudguard

at the state line is a substantial burden on interstate commerce,

then so, too, is tracking the minute-by-minute location of each FA

on each operating SkyWest flight to determine the precise

moment she enters and exits Illinois airspace.

15

SkyWest highlights the plaintiffs’ reference to pending

minimum wage legislation in the City of Chicago, alluding to the

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with the IMWL would not be a simple matter of setting

an FA’s minimum wage at the statutory amount in the

state in which she is based; it would impose a

labyrinth of potentially conflicting wage laws upon

FAs based out of different states and cities, working

on the same flights, literally moving through

interstate commerce on a daily basis. This is precisely

the type of burden on interstate commerce that the

Commerce Clause prohibits.

See Fitz-Gerald v.

Skywest Airlines, Inc., No. 01129514, 2005 WL

3118764, at *1–2 (Cal. Sup. Ct. Oct. 13, 2005), aff’d, 65

Cal. Rptr. 3d 913 (Ct. App. 2007);16 cf. Mitchell v.

Abercrombie & Fitch, No. C2-04-306, 2005 WL

1159412, at *4 (S.D. Ohio May 17, 2005) (Commerce

Clause prevented application of Ohio minimum wage

law to Ohio-based employer for all employees

throughout the country).

The plaintiffs’ only response to the Commerce

Clause argument (relegated to a footnote in their

response) notes that wage regulation is a “historic

police power[ ] of the States,” not the federal

government. Resp. 19 n.16. SkyWest’s invocation of

the Commerce Clause, however, is not in the context

of whether an action is a permissible federal

regulation but rather references the Clause’s “implicit

potential for SkyWest to be subject to the minimum wage laws of

every city through which SkyWest flies. Mem. in Supp. 15 n.8;

see also Am. Compl. ¶ 147.

16 The plaintiffs object to SkyWest’s reliance on Fitzgerald,

which the California Supreme Court disapproved of in certain

respects in People ex rel. Harris v. Pac Anchor Transp., Inc., 329

P.3d 180, 187–89 (Cal. 2014). The portion of the opinion

addressing the Commerce Clause arguments, however, remains

good law.

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restraint on state authority.” United Haulers Ass’n,

Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth.,

550 U.S. 330, 338 (2007).

Moreover, the state

mudguard regulation in Bibb was also passed under

Illinois’s police power; nonetheless, the Supreme

Court held it an undue burden on interstate

commerce. See id. 359 U.S. at 529–30. The same is

true here.

Imposing the IMWL on SkyWest would be an undue

burden on interstate commerce and would upend the

uniform treatment of FAs across states (and across the

airline industry). Repleading, moreover, will not

change this fact. Accordingly, the plaintiffs’ IMWL

claims are dismissed with prejudice.

B. Preemption Arguments

SkyWest makes three additional arguments,

asserting that a myriad of federal laws preempt the

application of the IMWL to the airline industry. None

of these arguments—field preemption, enactment of

the ADA or the RLA—preempt the application of the

IMWL, a generally applicable state law governing the

conditions of the workplace, to SkyWest.

1. Field Preemption

SkyWest asserts that because Congress has so

heavily regulated the airline industry, federal law

preempts the entire field of aviation, preventing states

from supplementing with their own wage regulations.

“Issues of express or field preemption are generally

purely legal questions, where the matter can be

resolved solely on the basis of the state and federal

statutes at issue.” Wisconsin Cent., Ltd. v. Shannon,

539 F.3d 751, 759 (7th Cir. 2008). There is a

presumption against preemption in areas of law

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traditionally occupied by the states—such as wage

regulation—unless federal preemption was “the clear

and manifest purpose” of Congress. Wyeth v. Levine,

555 U.S. 555, 565 (2009); see also California Div. of

Labor Standards Enf’t v. Dillingham Const., N.A.,

Inc., 519 U.S. 316, 330 (1997) (wage regulation a field

traditionally occupied by the states). The defendants

focus on Wisconsin Central, Ltd. v. Shannon, in which

the Seventh Circuit held overtime claims under the

IMWL preempted due to comprehensive federal

legislation over the railway industry. 539 F.3d at 765.

SkyWest asks this Court to extend the holding of

Wisconsin Central to the airline industry.

To reach its conclusion that federal law preempted

the IMWL overtime provision for railroad employees,

the Seventh Circuit reviewed the breadth of federal

regulation over railways, noting that it has “touched

on nearly every aspect of the railway industry,

including property rights, shipping, labor relations,

hours of work, safety, security, retirement,

unemployment, and preserving the railroads during

financial difficulties.” Id. at 762. With respect to wage

laws, however, the court observed the lack of

comparable federal regulation but noted, “‘[w]here a

comprehensive federal scheme intentionally leaves a

portion of the regulated field without controls, then

the pre-emptive inference can be drawn—not from

federal inaction alone, but from inaction joined with

action.’” Id. at 764 (quoting Puerto Rico Dep’t of

Consumer Affairs v. Isla Petroleum Corp., 485 U.S.

495, 503 (1988)). The action predating congressional

inaction in the railway industry was the Adamson Act,

which, to head off an impending national strike,

permanently established an eight-hour workday for

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determining the compensation of railroad employees

and temporarily froze wages. Wisconsin Central, 539

F.3d at 764 (citing the Adamson Act of 1916, 39 Stat.

721 (codified as amended at 49 U.S.C. § 28301)). The

Seventh Circuit concluded that the congressional

intent to keep railroad wage negotiations free from

regulations preempted state attempts to impose such

wage regulations. Wisconsin Central, 539 F.3d at 765.

Here, too, Congress has enacted regulations

touching on numerous aspects of the airline industry,

including labor relations (45 U.S.C. §§ 181–188),

maximum work hours and employee rest

requirements (14 CFR Parts 1–199), safety and

security (49 U.S.C. §§ 44101, et seq.; 49 C.F.R. Parts

1500–1699), design standards (49 U.S.C. § 44701),

marketing and pricing (49 U.S.C. § 41701, et seq.),

among many others. See Reply 10 n.6. Where the

comparison between the railway and airline industries

diverges, however, is the congressional expression of

clear and manifest intent to preempt state wage

regulations. Unlike Wisconsin Central, where the

court identified congressional intent to foster wage

negotiations free from regulation, with respect to the

airline industry, there is simply a lack of federal

regulation: “the mere absence of federal legislation

with respect to [minimum and] overtime wages is not

enough to find a congressional intent to preempt this

field, since ‘[t]here is no federal pre-emption in vacuo,

without a constitutional text or a federal statute to

assert it.’” 539 U.S. at 764 (quoting Isla Petroleum

Corp., 485 U.S. at 503). Without congressional intent

to preempt state wage laws—a regulatory area

traditionally occupied by the states—either through

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action or inaction,

preemption applies.

the

presumption

against

2. Airline Deregulation Act

In 1978, Congress, “determining that ‘maximum

reliance on competitive market forces’ would best

further ‘efficiency, innovation, and low prices’ as well

as ‘variety [and] quality. . . of air transportation

services,’ enacted the Airline Deregulation Act.”

Morales v. Trans World Airlines, Inc., 504 U.S. 374,

378 (1992) (quoting 49 U.S.C. §§ 1302(a)(4),

1302(a)(9)) (brackets and ellipses in original). To

ensure that states did not attempt to regulate the

airline industry, undoing the effects of the ADA, the

Act includes a preemption provision “prohibiting the

States from enforcing any law ‘relating to rates,

routes, or services’ of any air carrier.” Morales, 504

U.S. at 378–79 (quoting § 1305(a)(1)).17 The Supreme

Court broadly interprets this preemption provision,

but has noted that “‘[s]ome state actions may affect

[airline fares] in too tenuous, remote, or peripheral a

manner’ to have pre-emptive effect.” Morales, 504

F.3d at 390.

The Seventh Circuit has articulated two

requirements for a state law to be expressly preempted

by the ADA: “(1) A state must ‘enact or enforce’ a law

that (2) ‘relates to’ airline rates, routes, or services,

either by expressly referring to them or by having a

significant economic effect upon them.” Travel All

Over the World, Inc. v. Kingdom of Saudi Arabia, 73

F.3d 1423, 1432 (7th Cir. 1996) (ADA preempted

17 The ADA was revised in 1994 and renumbered in the United

States Code: the preemption provision is now 49 U.S.C. § 41713.

See Act of July 5, 1994, Pub. L. No. 103–272, 108 Stat 745.

82a

intentional tort claims stemming from a method of

ticketing but not breach of contract, slander, or

defamation claims).

To make the preemption

determination, the court must consider the particular

facts of the case and determine whether the claims

“relate to” airline rates, routes, or services. Id. at

1433.

Here, the IMWL claims are for violations of the

Illinois minimum wage and overtime provisions.

SkyWest asserts that the ADA preempts these claims

because, “[t]o comply, SkyWest would have to redesign

the crew compliments, routes and stage lengths

(impacting routes and services), which impermissibly

impacts the rates charged to the public.” Mem. in

Supp. 15. The plaintiffs argue that if the ADA

preempts Illinois wage laws “‘because they might

indirectly impact [the Defendants’] prices and rates

[that] is tantamount to arguing immunity from all

state economic regulation.’” Resp. 19 (quoting Costello

v. BeavEx Inc., 303 F.R.D. 295, 303 (N.D. Ill. 2014),

partially aff’d, vacated and remanded on other

grounds, 810 F.3d 1045 (7th Cir. 2016)).

Like the bribery and racketeering claims at issue in

S.C. Johnson & Son, Inc. v. Transport Corp. of

America, 697 F.3d 544 (7th Cir. 2012), however,

Illinois’s wage laws are “state laws of general

application that provide the backdrop for private

ordering.” Id. at 558. These laws have incidental

effect on “transportation companies (whether air or

surface carriers) only in their capacity as members of

the public.” Id. (citing Rowe, 552 U.S. at 375). The

Seventh Circuit noted that “no one thinks that the

ADA or the FAAAA preempts these and the many

comparable state laws, [such as minimum wage laws],

83a

because their effect on price is too ‘remote.’” S.C.

Johnson, 697 F.3d at 558 (citing Californians For Safe

& Competitive Dump Truck Transp. v. Mendonca, 152

F.3d 1184, 1189 (9th Cir. 1998) (FAAAA does not

preempt minimum wage laws)).

The IMWL is not “related to” airline rates, routes,

or services; any effect on SkyWest is incidental and no

different than on any other employer. See Costello,

810 F.3d at 1055–56 (FAAAA did not preempt Illinois

wage deduction law); Valencia v. SCIS Air Sec. Corp.,

193 Cal. Rptr. 3d 775, 779–82 (Ct. App. 2015) (ADA

did not preempt state labor laws on meals, rest breaks,

and wages); see also DiFiore v. Am. Airlines, Inc., 646

F.3d 81, 89 (1st Cir. 2011) (“We do not endorse

American’s view that state regulation is preempted

wherever it imposes costs on airlines and therefore

affects fares . . . This would effectively exempt airlines

from state taxes, state lawsuits of many kinds, and

perhaps most other state regulation. . . .”). Thus, the

ADA does not preempt the plaintiffs’ IMWL claims.

3. Railway Labor Act

SkyWest also contends that the RLA preempts both

the FLSA and IMWL claims. Congress passed the

Railway Labor Act, which it extended to cover the

airline industry in 1936, see Act of Apr. 10, 1936, ch.

166, 49 Stat. 1189; 45 U.S.C. §§ 181–188, to “promote

stability in labor-management relations by providing

a comprehensive framework for resolving labor

disputes.” Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 252 (1994); see also 45 U.S.C. § 151a. The RLA

includes a mandatory dispute resolution mechanism

for two types of disputes: (1) “major” disputes

concerning “rates of pay, rules, or working conditions,”

84a

45 U.S.C. § 151a, which relate to “‘the formation of

collective [bargaining] agreements or efforts to secure

them,’” Hawaiian Airlines, 512 U.S. at 252 (quoting

Consolidated Rail Corporation (Conrail), v. Railway

Labor Executives’ Assn., 491 U.S. 299, 302 (1989))

(brackets in original); and (2) “minor” disputes that

“gro[w] out of grievances or out of the interpretation or

application of agreements covering rates of pay, rules,

or working conditions,” 45 U.S.C. § 151a, which

involve “controversies over the meaning of an existing

collective bargaining agreement in a particular fact

situation.”

Hawaiian Airlines, 512 U.S. at 253

(quoting Trainmen v. Chicago R. & I.R. Co., 353 U.S.

30, 33 (1957)). The Supreme Court has described the

difference between the two: “‘major disputes seek to

create contractual rights, minor disputes to enforce

them.’” Hawaiian Airlines, 512 U.S. at 253 (quoting

Conrail, 491 U.S. 302).

The RLA preempts a state claim or precludes a

federal claim when ““the success of the claim is

dependent upon an interpretation of the collective

bargaining agreement’s terms.” Wisconsin Central,

539 F.3d at 757 (quoting Miller v. Am. Airlines, Inc.,

525 F.3d 520, 524 (7th Cir. 2008)); see also In re Bentz

Metal Prods. Co., 253 F.3d 283, 285 (7th Cir. 2001)

(holding, with respect to the parallel preemption

provision in § 301 of the Labor Management Relations

Act, “that a state law claim is not preempted if it does

not require interpretation of the CBA even if it may

require reference to the CBA”). Accordingly, there are

a number of situations that may involve a CBA that do

not result in preemption/preclusion, such as where the

interpretation of the contractual provision at issue is

not disputed or where reference to the CBA is only

85a

necessary to compute damages.

See Wisconsin

Central, 539 F.3d at 758 (collecting cases).

The parties spend a great deal of time debating

whether SIA “represents” the FAs, whether the Policy

Manual qualifies as a CBA, and, if so, whether any

interpretation is necessary to resolve the plaintiffs’

claims. See Mem. in Supp. 15–18; Resp. 22–23; Reply

13–15. The Supreme Court, however, has held that

“substantive protections provided by state law,

independent of whatever labor agreement might

govern, are not pre-empted under the RLA.”

Hawaiian Airlines, 512 U.S. at 257; see also Terminal

R. Ass’n of St. Louis v. Bhd. of R.R. Trainmen, 318 U.S.

1, 7 (1943) (“We hold that the enactment by Congress

of the Railway Labor Act was not a pre-emption of the

field of regulating working conditions themselves.”).

The claims based on compliance with the FLSA and

the IMWL are not disputes seeking to create a

contractual right or disputes to enforce a contractual

right.

Minimum wage and overtime laws are

substantive protections the plaintiffs are entitled to,

completely independent of a CBA. See Hawaiian

Airlines, 512 U.S. at (state wrongful discharge law an

obligation “[w]holly apart from any provision of the

CBA” and not preempted); Terminal R. Ass’n, 318 U.S.

at 3–4, 6–7 (state law requiring cabooses on all trains

for switchman safety not preempted).

Moreover, even assuming the Policy Manual

qualifies as a CBA (which the plaintiffs dispute), the

defendants have not established that any

interpretation would be necessary to resolve the

minimum wage and overtime claims. Resolving the

FLSA and IMWL claims would “require only the

purely factual inquiry into” the hours the plaintiffs

86a

worked and the amount they were compensated.

Hawaiian Airlines, 512 U.S. at 266; see also In re

Bentz, 253 F.3d 283, 289 (“[T]he overriding principle is

that for preemption to apply, interpretation of the CBA

and not simply a reference to it is required.”

(emphasis in original)).

Because the plaintiffs’ rights under the FLSA and

the IMWL are completely independent of the Policy

Manual, and the defendants have not established that

any interpretation of the Policy Manual is required to

resolve the claims, the RLA does not preempt the

plaintiffs’ claims.

III.

Declaratory and Injunctive Relief

The plaintiffs seek declaratory and injunctive relief

on behalf of all similarly situated current and former

SkyWest FAs. Since all of the plaintiffs’ claims are

being dismissed, however, the request for such relief is

moot. Because the plaintiffs may replead their FLSA

claims, however, the court will address the availability

of injunctive relief. It is clear that, as former

employees, the plaintiffs lack standing to pursue

equitable relief.

When “seeking injunctive and

declaratory relief, a plaintiff must establish that he is

in immediate danger of sustaining some direct injury.”

Feit v. Ward, 886 F.2d 848, 857 (7th Cir. 1989). “Past

exposure to illegal conduct does not in itself show a

present case or controversy regarding injunctive

relief . . . if unaccompanied by any continuing, present

adverse effects.” O’Shea v. Littleton, 414 U.S. 488,

495–96 (1974); see also Robinson v. City of Chicago,

868 F.2d 959, 966 n.5 (7th Cir. 1989) (same standard

applies to injunctive and declaratory relief).

87a

The plaintiffs argue that, in an employment context,

it is “well established” that former employees have

standing to represent a class of both former and

current employees seeking injunctive and declaratory

relief. Resp. 23–24 (citing Wetzel v. Liberty Mutual

Ins. Co., 508 F.2d 239, 247 (3rd Cir. 1975); In re FedEx

Ground Package Sys., Empl. Practices Litig., 273

F.R.D. 424, 438 (N.D. Ind. 2008); Walker v. Bankers

Life & Cas. Co., No.: 06 C 6906, 2007 WL 2903180, at

*7 (N.D. Ill. Oct. 1, 2007); Resnick v. American Dental

Ass’n, 90 F.R.D. 530, 540 (N.D. Ill. 1981); Maddock v.

KB Homes, Inc., 248 F.R.D. 229, 238 (C.D. Cal 2007)).

The cases the plaintiffs cite, however, all address the

issue on a class certification motion, not on a motion

to dismiss. As no class has been certified, at this point

the plaintiffs are arguing their individual claims on

the motion to dismiss, not the claims of the proposed

class members. For that reason, the Seventh Circuit’s

holding in Feit is controlling.

Even if it were not, notwithstanding that some

courts have held to the contrary, the Court is not

persuaded that the plaintiffs have standing to seek

equitable relief even where there is a putative class

that includes current employees. As the Supreme

Court has instructed, “[t]hat a suit may be a class

action . . . adds nothing to the question of

standing . . . .” Lewis v. Casey, 518 U.S. 343, 357 (1996)

(quoting Simon v. Eastern Ky. Welfare Rights

Organization, 426 U.S. 26, 40 n.20 (1976)). Thus—and

contrary to the plaintiffs’ contention—courts in this

district regularly dismiss putative class actions on

standing grounds where the named plaintiffs were

former employees seeking to obtain injunctive and

equitable relief on behalf of current employees. See

88a

e.g., Sawyer v. Vivint, Inc., 2015 WL 3420615, at *3

(N.D. Ill. May 28, 2015) (former service technician

lacked standing to pursue injunctive relief on behalf of

himself and putative class of current and former

employees); Ruffin v. Exel Direct, Inc., No. 09 C 1735,

2009 WL 3147589, at *3 (N.D. Ill. Sept. 29, 2009)

(former contractors, suing on behalf of current and

former contractors, did not have standing to seek the

declaratory and injunctive relief); Brown v. Cty. of

Cook, 549 F. Supp. 2d 1026, 1031 (N.D. Ill. 2008)

(same); Hawkins v. Groot Indus., Inc., No. 01 C 1731,

2003 WL 22057238, at *2 (N.D. Ill. Sept. 2, 2003) (the

“fundamental reason” why court could not certify a

Rule 23(b)(2) [injunctive] class of present and former

black employees was that neither of the named

African-American plaintiffs was a current employee).

In this Court’s view, even if Feit does not dictate the

answer, the better view is that an individual named

plaintiff who is not a current employee has no standing

to assert claims for prospective injunctive and

equitable relief on behalf of current employees.

*

*

*

The motion to dismiss is granted with prejudice as

to the IMWL claims and the claims for injunctive and

declaratory relief; the motion is granted without

prejudice as to the FLSA claims. The plaintiffs’ motion

to proceed as a collective action, for tolling of the

statute of limitations, for court-authorized notice, and

for disclosure of the contact information of the

potential opt-in plaintiffs is denied as moot. To the

extent that the plaintiffs can attempt, in good faith, to

cure the deficiencies in their FLSA claims, they may

file a Second Amended Complaint within 21 days of

this order. In the absence of a timely filed Second

89a

Amended Complaint, the FLSA claims, and the case,

will be dismissed with prejudice.

Dated: May 24, 2016

John J. Tharp, Jr.

United States District Judge

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

January 11, 2019

Before

DIANE P. WOOD, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

Nos. 17‐3643 & 17‐3660

ANDREA HIRST, et al.,

Plaintiffs‐Appellants

Appeals from the United

States District Court for

the Northern District of

Illinois, Eastern Division.

v.

SKYWEST, INC., et al.,

Defendants‐Appellees.

Nos. 1:15‐cv‐02036 &

1:15‐cv‐11117

John J. Tharp, Jr.,

Judge.

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ORDER

On consideration of the petition for rehearing and

for rehearing en banc* filed by appellees on December

26, 2018, no judge in active service has requested a

vote on the petition for rehearing en banc, and all of

the judges on the original panel have voted to deny

rehearing.

Accordingly, the petition for rehearing and for

rehearing en banc is DENIED.

* Judge Flaum did not participate in the consideration of this

petition.