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

Supreme Court briefMay 10, 2019

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No. _________

IN THE

Supreme Court of the United States

ANDREA HIRST, ET AL.,

Petitioners,

—v.—

SKYWEST, INC., ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GREGORY F. COLEMAN

Counsel of Record

LISA A. WHITE

ARTHUR STOCK

WILLIAM A. LADNIER

RYAN P. MCMILLAN

GREG COLEMAN LAW PC

800 South Gay Street, Suite 1100

Knoxville, Tennessee 37929

(865) 247-0080

greg@gregcolemanlaw.com

Attorneys for Petitioners

QUESTION PRESENTED

Must an employee protected by the Fair Labor

Standards Act always allege wage violations averaged

across a specific seven-day workweek, or may an

employee plead a cause of action with alternative

context-specific allegations to meet the plausibility

requirements of Rule 8 and Ashcroft v. Iqbal, 556 U.S.

662 (2009)?

PARTIES TO PROCEEDINGS BELOW

Petitioners Andrea Hirst, Molly Stover, Emily

Stroble Sze, Cheryl Tapp, Renee Sitavich, Sarah

Hudson, Brandon Colson, and Brüno Lozano were

plaintiffs-appellants below.

Respondents SkyWest, Inc. and SkyWest Airlines,

Inc. were defendants-appellees below.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO PROCEEDINGS BELOW ................... ii

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES ........................................ v

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED ..................1

STATEMENT OF THE CASE ....................................2

I. Factual Background ...............................................2

II. Proceedings Below .................................................8

ARGUMENT:

REASONS FOR GRANTING CERTIORARI ...........13

I. Post-Twombly and Iqbal, the circuits are split

regarding the FLSA pleading requirements. .......... 13

A. Four circuits weigh plausibility according to

Iqbal’s context-specific analysis.......................... 14

B. Four circuits require identifying a specific

workweek that was underpaid to avoid dismissal

on the pleadings. ................................................ 21

II. Circuits that require pleading based on a specific

workweek truncate long-standing administrative

agency guidance. ....................................................... 26

A. Wage averaging requires specific information

and records according to the Wage and Hour

Division’s long-standing directives. .................. 28

B. The Wage and Hour Division intended the

workweek to be the longest period of wage

averaging, not the only acceptable period. ........ 31

III. Workweek averaging is inappropriate in the

context of SkyWest’s scheduling and payroll systems.

................................................................................... 33

A. Pairing-based averaging is the appropriate

context-specific pleading given SkyWest’s complex

payroll system. ................................................. 33

B. For SkyWest flight attendants, the specific

workweek pleading requirement is especially

detrimental. ....................................................... 36

CONCLUSION .......................................................... 37

APPENDIX A: Opinion of the Court of Appeals for the

Seventh Circuit (Dec. 12, 2018) ....................... 1a

APPENDIX B: Memorandum Opinion and Order of

the District Court for the Northern District of

Illinois (Nov. 30, 2017) .................................... 12a

APPENDIX C: Memorandum Opinion and Order of

the District Court for the Northern District of

Illinois (May 24, 2016) .................................... 49a

APPENDIX D: Order of the Court of Appeals for the

Seventh Circuit denying rehearing (Dec. 12,

2018)................................................................. 90a

TABLE OF AUTHORITIES

CASES

Page(s)

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ..................................... passim

Barrentine v. Arkansas-Best Freight Sys.,

450 U.S. 728 (1981) .............................................. 26

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ...................................... passim

Blankenship v. Thurston Motor Lines,

415 F.2d 1193 (4th Cir. 1969) .............................. 26

Brooklyn Savings Bank v. O’Neil,

324 U.S. 697 (1945) .............................................. 35

Busk v. Integrity Staffing Sols., Inc.

(In re Amazon.com, Inc.),

905 F.3d 387 (6th Cir. 2018) ..............14 n.2, 23, 25

Cooley v. HMR of Ala., Inc.,

747 F. App’x 805 (11th Cir. 2018) ......14 n.1, 20, 26

Davis v. Abington Mem’l Hosp.,

765 F.3d 236 (3d Cir. 2014)................14 n.1, 16, 24

Douglas v. Xerox Bus. Servs., Ltd. Liab. Co.,

875 F.3d 884 (9th Cir. 2017) ................................ 32

Dove v. Coupe,

759 F.2d 167 (D.D.C. 1985) ............................ 27, 35

vii

TABLE OF AUTHORITIES

(continued)

Galloway v. Chugach Gov’t Servs.,

199 F. Supp. 3d 145 (D.D.C. 2016) ...................... 21

Hall v. DIRECTV, LLC,

846 F.3d 757 (4th Cir. 2017) ........ 14 n.1, 17, 25, 27

Landers v. Quality Communs., Inc.,

771 F.3d 638 (9th Cir. 2015) ..............13, 14 n.2, 25

Lundy v. Catholic Health Sys. of Long Island, Inc.,

711 F.3d 106 (2d Cir. 2013)................ 14 n.2, 24-25

Manning v. Boston Med. Ctr. Corp.,

725 F.3d 34 (1st Cir. 2013) .................................. 18

Marshall v. Sam Dell’s Dodge Corp.,

451 F. Supp. 294 (N.D.N.Y. 1978) ....................... 27

McDowell v. Purolator Courier Corp.,

25 Wage & Hour Cas. (BNA) 503 (E.D. Ky.

1982) .....................................................................27

Mell v. Gnc Corp.,

No. 10-945, 2010 U.S. Dist. LEXIS 118938, 2010

WL 4668966 (W.D. Pa. Nov. 9, 2010) .................. 20

Overnight Motor Transp. Co. v. Missel,

316 U.S. 572 (1942) ........................................ 23, 26

Pruell v. Caritas Christi,

678 F.3d 10 (1st Cir. 2012) .......... 14 n.1, 15, 24, 27

viii

TABLE OF AUTHORITIES

(continued)

Stein v. HHGREGG, Inc.,

873 F.3d 523 (6th Cir. 2017) ................................ 22

Stevens v. InPhonic, Inc.,

662 F. Supp. 2d 105 (D.D.C. 2009) ...................... 20

Travis v. Ray,

41 F. Supp. 6 (W.D. Ky. 1941) ............................. 27

United States v. Klinghoffer Bros.,

285 F.2d 487 (2nd Cir. 1960) ......................... 23, 27

United States v. Universal C.I.T. Credit Corp.,

102 F. Supp. 179 (W.D. Mo. 1952) ....................... 27

STATUTES

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 1331 .......................................................... 8

28 U.S.C. § 1367 .......................................................... 8

29 U.S.C. § 206(a) .............................................. passim

29 U.S.C. § 207(g) .......................................2, 16, 21-22

29 U.S.C. § 213(b)(3) .................................................... 2

29 U.S.C. § 216(b) ........................................................ 8

45 U.S.C. § 181, et seq. ................................................ 2

TABLE OF AUTHORITIES

(continued)

RULES

Fed. R. Civ. P. 8 ................................................. passim

Fed. R. Civ. P. 9 ......................................................... 21

14 C.F.R. 121.467 ........................................................ 3

29 C.F.R. 779.419 ...................................................... 23

OTHER AUTHORITIES

Bureau of Nat’l Affairs, Wage-Hour Records; What

Records to Keep and How to Keep Them (1941)

(reprinted from Wage Hour Manual, 4 WHR 492,

Explanatory Bulletin 4 (September 15, 1941))

........................................................................29, 31

Portal-To-Portal Wages: Hearing Before the

Subcomm. on S. 70 of the S. Comm. on the

Judiciary, 80th Cong. 329 (1947) (statement of Lee

Pressman, General Counsel, Wage and Hour

Division, United States Dep’t of Labor) .............. 29

OPINIONS BELOW

The opinion of the Seventh Circuit is reported at

Hirst v. SkyWest, Inc., 910 F.3d 961 (7th Cir. 2018) and

reproduced at App. 1a–11a. The district court’s opinion

dismissing petitioners’ claims with prejudice is reported

at 283 F. Supp. 3d 684 and reproduced at App. 12a–48a.

The district court’s earlier opinion dismissing

petitioners’ FLSA claims without prejudice is

unreported, but available at 2016 WL 2986978 and

reproduced at App. 49a–89a. The court of appeals

denied panel rehearing and rehearing en banc on

January 11, 2019. App. 90a–91a.

JURISDICTION

The court of appeals affirmed in part and reversed

in part the district court’s judgment, then remanded the

case on December 12, 2018. App. 1a. The court of

appeals denied panel rehearing and rehearing en banc

on January 11, 2019. App. 90a–91a. This Court has

jurisdiction under 28 U.S.C. § 1254(1). On April 4, 2019,

this Court entered an Order extending time to file a

petition for certiorari until May 11, 2019.

STATUTORY PROVISIONS INVOLVED

Section 206(a) of the Fair Labor Standards Act, 29

U.S.C. § 206(a) states:

(a) Employees engaged in commerce; . . . Every

employer shall pay to each of his employees who in any

workweek is engaged in commerce or in the production

of goods for commerce, or is employed in an enterprise

engaged in commerce or in the production of goods for

commerce, wages at the following rates:

(1) except as otherwise provided in this section,

not less than. . .

Section 213(b)(3) of the Fair Labor Standards Act, 29

U.S.C. § 213(b)(3), states:

(b) Maximum hour requirements

The provisions of section 207 of this title shall not

apply with respect to—

...

(3) any employee of a carrier by air subject to the

provisions of title II of the Railway Labor Act [45 U.S.C.

§ 181 et seq.];

....

STATEMENT OF THE CASE

Factual Background

Respondent SkyWest is a commercial airline that

flies commuter or regional routes for Delta, United, and

other large carriers. SkyWest assigns each of its flight

attendants to a specific base airport or “domicile.” Every

group of flights in a schedule, called a “pairing,” for

every flight attendant begins and ends at their home

base. The pairings consist of a series of flights scheduled

one to four days long. Plaintiffs alleged that SkyWest

paid less than the federal minimum wage, $7.25 per

hour, for compensable work performed by flight

attendants in the course of their work. C.A. App. 167,

173, 389, 396-97.

SkyWest pays its flight attendants using a “blocktime” method for calculating wages, with their pay

clocks running only when the aircraft’s main cabin door

is closed. Other compensable work is ignored by

SkyWest’s pay calculations despite being tracked

minute-by-minute every day to meet the Federal

Aviation Administration (“FAA”) strict “duty time”

regulations. See 14 C.F.R. 121.467. As a result, a flight

attendant whose “wage rate” is shown on SkyWest’s

paychecks as $17.50 per block hour never receives pay

close to $17.50 per hour in “straight time wages” (i.e.,

earned hourly pay based on all compensable work).

Instead, block wage rates by design are continuously

falling by differing amounts for each work day and each

pairing. In this system, a flight attendant’s hourly wage

rate can only be calculated retroactively by comparing

bi-monthly paychecks to daily check-in times, actual

flight times, turn times (i.e., the time spent on the

ground between flights), and release times, then adding

in unrecorded work time that occurs virtually every

work day. C.A. App. 156-58, 375-77. Much of this

information, including actual check in times, is

contemporaneously recorded by the airline, but

inaccessible to both current and former employees.

Other critical pieces of information, including daily

schedules and payroll records, are stored on SkyWest’s

proprietary computer system, access to which is blocked

immediately upon an employee’s termination of

employment. C.A. App. 155 n.7, 376 n.7. Neither duty

time nor a sum of all compensable work hours (‘straight

time”) appear on SkyWest flight attendants’ paychecks.

As a result of this odd payroll scheme, SkyWest

flight attendants are being paid on a piece-rate basis,

which would be an acceptable method for wage payment

so long as straight time hourly wages never fall below

required minimum wage rates. The “pieces” counted for

flight attendant pay calculations differ from those of

typical piece-rate workers. For example, in a

manufacturing plant, workers may be paid 10 cents per

widget they make on the production line. Here, the

pieces are hours and minutes called “block time.”

Calculating flight attendants’ straight time hourly

wages to confirm minimum wage compliance under the

Fair Labor Standards Act (FLSA) is similar to

determining hourly wages for piece-rate workers. In

their complaints, petitioners allege that under

SkyWest’s payroll system their straight time wages can,

and actually do, fall below $7.25 per hour when their

schedules include short flight times on long workdays.

Yet unlike most piece-rate workers, flight

attendants’ work schedules also change every day,

pairing, week, and month with virtually no regularity.

SkyWest issues its paychecks bimonthly, such that

neither flight attendants’ pairing schedules nor their

pay periods ever align with a 7-day workweek. And to

further complicate matters, SkyWest doggedly fights

against providing employees with any records other

than those it “voluntarily” chooses to provide, which

invariably include critical gaps in information that is

required to accurately to calculate straight time

earnings, especially on a weekly basis.

SkyWest does not dispute that its flight attendants

perform significantly more compensable work over and

above flight time during every pairing or that their

block time wages—the “pieces” counted in this

byzantine payroll system—must be stretched like a

rubber band to cover all compensable working hours of

each pairing. Flight attendants work far longer than

just the time when the airplane’s cabin door is closed.

All flight attendants are required to arrive at the

airport and check-in well before their first flights. They

ready planes for passengers and spend hours each

workday loading and unloading travelers. They

straighten the plane cabins between flights, assist

disabled passengers, and must wait out delays before or

between flights, always in uniform and under the

control and supervision of crew support. When a flight

attendant works long days with short flights, far more

than half of her “duty day” will fall outside of block time.

Thus, although hard at work, their straight-time hourly

wages are continuously falling.

The FAA requires that every airline track the

exact length of duty days and turn times between

flights. As a result, SkyWest records exactly how many

minutes a flight attendant was on duty for every

workday and at any given ground stop—including the

periods when the cabin doors are open. But even “duty

time” records do not include all the hours flight

attendants perform compensable work and are under

SkyWest’s control. For example, flight attendants, like

passengers, must deal with delays in clearing security

for their first flights. If they check in early, they must

begin following SkyWest’s directions immediately, but

these minutes or hours are not included in the duty day.

C.A. App. 146, 365. Moreover, each duty day

automatically ends 15 minutes after the cabin door is

opened on the last flight. But if the plane takes longer

to unload—for example, because of the sheer number of

passengers, waiting for wheelchair assistance, or other

factors beyond the flight attendants’ control—that time

is not recorded as part of the duty day despite being

compensable work. C.A. App. 148, 367.

In their complaints, the flight attendant-plaintiffs

pleaded details of SkyWest’s payroll system, exact types

and amounts of work performed “off the clock” each day,

and the complex requirements for calculating straight

time wages. E.g., C.A. App. 153-57, 373-77. In addition,

several low-seniority flight attendants pleaded that

they were paid less than federal minimum wage during

workweeks when they were scheduled for short flying

times and long workdays. C.A. App. 170-73, 395-98. All

plaintiffs pleaded wage claims based on state labor

laws, which are not relevant to this petition.

Unlike those employed by other airlines, SkyWest

flight attendants never receive pay based on their “duty

day”—that is, the length of time between their “report

time” (when they must be at the airport after clearing

security) (C.A. App. 148, 151) and their “release time”

(exactly fifteen minutes after the aircraft door is opened

upon landing the last flight of the day) (C.A. App. 148).

No mechanism is built into SkyWest’s payroll system to

verify minimum wage compliance, unlike certain easily

calculable safeguards utilized by other airlines. C.A.

App. 172, 397.

SkyWest does not dispute that it must pay at least

the FLSA minimum wage rates for all compensable

work, but it relies heavily on the FLSA’s lack of a

provision through which employees may request their

own accurate payroll records, thereby allowing

SkyWest to avoid accountability. In general, state labor

laws provide reporting and access provisions that are

lacking in the FLSA, yet for nearly a year, SkyWest

refused to provide the flight attendants with their own

pay and schedule records based on the requirements of

state labor laws. See C.A. App. 77-129, 427-549. Until

ordered to provide “limited discovery” by the district

court, SkyWest only “voluntarily” provided partial

records to the former employees. C.A. App. 550. And

even after ordered to respond, SkyWest’s production

was woefully incomplete for calculating straight time

wage compliance under the FLSA for piece-time wage

earners, especially when compared to the Wage and

Hour Division’s recordkeeping requirements.

The most rational way to measure whether a

worker is being paid minimum wage depends on the

job’s scheduling and payroll nuances. In the case of

flight attendants, it makes the most sense to average

earnings across “pairings.” Each pairing represents a

single cohesive unit of labor that a flight attendant is

required to work and is functionally equivalent to the

workweek of other occupations. A given pairing, based

on SkyWest’s scheduling practices, generally spans

three or four days, with multiple flights per day, but it

may be as short as one or two duty days. Within each

pairing, it is not unusual for individual flights to begin

in one time zone and end in another, or for late night

flights to begin on one calendar day and end on another

(at times, seemingly going “backwards” in time). Thus,

an attempt to calculate pay based on a “workweek” for

minimum wage calculations, starting and stopping at

the same time each week, fails. A traditional workweek

measure frequently bisects pairings or even single

flights, and calculations require time zone adjustments.

In contrast, for every flight attendant, every pairing is

a single cohesive schedule that begins and ends at the

employee’s base airport. C.A. App. 151, 370. For

example, a flight attendant based at Chicago O’Hare

Airport begins and ends every pairing at that airport.

Included in the records that SkyWest lateproduced is an example that highlights the hazards of

an employer impeding access to employee records to

avoid accountability. From October 18, 2013 to October

20, 2013, plaintiff Sarah Hudson worked a total of 36

hours and 54 minutes of duty time and received 11

hours and 51 minutes of block time credit, at a rate of

$17.50. That works out to $5.62/hour for a three-day

pairing during which she worked longer than 8 hours

each day. Thus, her total pay for that three-day pairing

is far below the federal minimum wage rate of

$7.25/hour.

SkyWest’s system for calculating compensation at

times underpays its employees even when straight time

wages must be averaged weekly, which requires

bisecting pairings and flights and adjusting for time

zones. However, if flight attendants’ pay were correctly

calculated based on a more reasonable, industryspecific per-pairing wage averaging formula, SkyWest’s

actual hourly pay rates would be far more calculable for

employees and employers alike, and its violations would

be far more obvious, alarming, and frequent.

II.

Proceedings Below

The District Court had jurisdiction over the

instant action pursuant to 29 U.S.C. § 216(b), which

confers jurisdiction to federal courts on claims arising

under the Federal Labor Standards Act, and under 28

U.S.C. § 1331, as the principle claims raise questions of

federal law. The District Court had supplemental

jurisdiction over related state law claims alleged by all

plaintiffs (which are not the subject of this petition)

pursuant to 28 U.S.C. § 1367.

In 2015, two groups of former flight attendants—

petitioners here—sued SkyWest alleging that

SkyWest’s average straight time wages and method of

calculating pay violated federal, state and local labor

laws, including that the airline failed to always pay

applicable federal minimum wage laws. One group

consisted of flight attendants based out of SkyWest’s

hub in Chicago, who asserted violations of the FLSA

and Illinois laws and ordinances. Hirst, et al., v.

SkyWest, Inc., et al., N.D. Ill. Case No. 1:15‐cv‐02036.

The other group included flight attendants based in

various cities in California, Arizona, and Washington,

and likewise they asserted violations of the FLSA and

of labor laws applicable to employees in the states and

cities in which each flight attendant was based. Tapp,

et al., v. SkyWest, Inc., et al., N.D. Ill. Case No. 1:15‐cv‐

11117. These actions were consolidated by stipulation

in the Northern District of Illinois. C.A. App. 20.

Plaintiffs alleged that SkyWest’s system for

calculating and paying wages violated the FLSA

minimum wage requirements, as well as a host of labor

laws applicable to each plaintiff’s base, and resulted in

its flight attendants being underpaid. Each plaintiff

asserted that SkyWest’s payroll scheme, which pays

only “block time” based on when an aircraft’s main

cabin door is closed, inadequately compensates flight

attendants, especially on extremely long workdays with

short flights. C.A. App 149, 368. They alleged that

SkyWest actually paid flight attendants less than

federal minimum wage, averaged weekly, during

certain workweeks. C.A. App. 170-73, 395-98.

SkyWest responded by moving to dismiss,

asserting that plaintiffs failed to identify a specific

workweek in which they were not fully compensated

under the FLSA. In addition, SkyWest argued that the

flight attendants are unprotected by any state or local

labor laws based on its hodgepodge of preemption

theories, including the dormant commerce clause. See

Supreme Court Case No. 18-1097. Specifically, SkyWest

argues that flight attendants are not covered by any

state and local wage laws, whether related to minimum

wage rates, overtime, access to records, or paycheck

requirements. The preemption theories and state labor

protections are irrelevant to this petition.

In its May 24, 2016, Memorandum Opinion and

Order, the district court acknowledged that ‘[a]lthough

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.” App.

61a. It then opined, without citation, “[t]o 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.” App. 64a. The district court then described

a scenario under which the flight attendants would be

underpaid for “one or more series of lengthy duty days.”

“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 [a flight attendant] minimum wage as

mandated under federal law over the course of a

workweek.” App. 66a-67a. The district initially

dismissed the FLSA claims without prejudice. App.

67a.

Given the novel pleading hurdle ordered by the

district court, the flight attendants requested their own

payroll and schedule records from SkyWest pursuant to

requirements of state labor laws. In response, SkyWest

engaged in an unrelenting effort to conceal certain parts

of the records, claiming all state labor laws are

inapplicable to all flight attendants. C.A. App. 110. The

records it did provide “voluntarily” were incomplete,

jumbled, or improperly summarized, including charts

which ludicrously claimed plaintiffs made hundreds of

dollars per hour at times.

On December 20, 2016, Plaintiffs concurrently

filed a Second Amended Complaint in Hirst (C.A. App.

136), an Amended Complaint in Tapp (C.A. App. 353),

and an opposed motion for limited discovery (C.A. App.

427). The parties litigated the limited discovery related

issues for months, during which SkyWest filed a

consolidated motion to dismiss on March 1, 2017.

Just eight days prior to filing its consolidated

motion to dismiss, SkyWest again “voluntarily”

produced some of the scheduling and payroll documents

that it spent the better part of a year fighting to hide.

Then, in its motion to dismiss, SkyWest referred to

these newly produced documents claiming they were

“‘central’ to the plaintiff[s’] claim.” (R. 15-cv-02036, 95:

7 n.4).

On November 30, 2017, the district court issued its

memorandum opinion and a final judgment dismissing

all claims of the plaintiffs, including their FLSA

minimum wage claims. App. 48a. The district court

opined that “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.’” App. 24a-25a. It also dismissed

all state statutory claims on its dormant commerce

clause theory. App. 48a. Plaintiffs appealed the district

court’s decision.

On appeal, the Seventh Circuit reversed in part,

holding the dormant commerce clause does not preclude

the application of state labor laws to flight attendants.

However, the Seventh Circuit affirmed the dismissal of

Plaintiffs’ FLSA minimum wage claims after

acknowledging that 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.” App. 6a. The

Seventh Circuit found that without pleading at least

one specific workweek that was underpaid, the flight

attendants had not plausibly alleged a violation of

FLSA. App. 7a. As discussed below, in this ruling the

Seventh Circuit rejected the approach taken by the

First, Third, Fourth, and Eleventh Circuits.

SkyWest filed a petition for certiorari in this Court

on February 15, 2019, arguing that airlines have a

constitutional right to ignore all state and local labor

laws including basic minimum wage requirements for

flight attendants. The flight attendants opposed that

petition. See SkyWest, Inc., et al. v. Hirst, et al.,

Supreme Court Case No. 18-1097.

Flight attendants now file this petition for

certiorari, questioning whether an employee protected

by the Fair Labor Standards Act must allege wage

violations during a specific workweek, even where the

employer holds the data necessary for the calculations,

or whether other detailed allegations may meet the

plausibility requirements of Rule 8 and Ashcroft v.

Iqbal, 556 U.S. at 662.

[Remainder of page intentionally left

blank. Petition continues on next page.]

ARGUMENT:

REASONS FOR GRANTING CERTIORARI

The issue before the Court is whether employees

must plead a specific workweek in which they were

underpaid to survive a motion to dismiss on the

pleadings. The petitioners assert that such a pleading

requirement ignores industry-specific complexities and

Iqbal’s demand to consider the context of the claims,

and, most importantly, is inconsistent with the

requirements of Federal Rule of Civil Procedure 8(a).

Post-Twombly and Iqbal, the circuits

are

split regarding the FLSA

pleading requirements.

Virtually every circuit that has considered wage

claims under the FLSA has struggled with the “new”

pleading requirements since Twombly and Iqbal.

“Although the circuit courts are in harmony on what is

not required by Twombly and Iqbal, there is no

consensus on what facts must be affirmatively pled to

state a viable FLSA claim post-Twombly and Iqbal.”

Landers v. Quality Communs., Inc., 771 F.3d 638, 642

(9th Cir. 2015). This Court should grant certiorari to

resolve these differences as a matter of a nationwide

need for uniformity to benefit both employees and

employers alike.

Since 2012, at least eight different circuits have

considered wage pleading requirements under the

FLSA, with four (First, Third, Fourth, and Eleventh

Circuits) establishing a context-specific pleading

requirement that closely follows the requirements of

Iqbal.1 The D.C. District Court similarly relied on wellestablished pleading requirements of Twombly and

Iqbal. In direct contrast, four circuits (the Second,

Sixth, Seventh, and Ninth Circuits) hold that an

employee must allege a specific workweek during which

they were underpaid to survive a Rule 12 motion to

dismiss.2

Four circuits weigh plausibility

according to Iqbal’s context-specific

analysis.

The following circuits have applied Iqbal, 556 U.S.

at 679, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific

task that requires the reviewing court to draw on its

judicial experience and common sense”:

First Circuit

Nevertheless, we think the motion to

amend should be allowed. The precedents on

pleading specificity are in a period of

transition, and precise rules will always be

elusive because of the great range and

Pruell v. Caritas Christi, 678 F.3d 10, 15 (1st Cir. 2012); Davis

v. Abington Mem’l Hosp., 765 F.3d 236, 242-43 (3d Cir. 2014); Hall

v. DIRECTV, LLC, 846 F.3d 757, 777-79 (4th Cir. 2017), cert.

denied, 138 S. Ct. 635 (2018); Cooley v. HMR of Ala., Inc., 747 F.

App’x 805, 807-08 (11th Cir. 2018).

Lundy v. Catholic Health Sys. of Long Island, Inc. , 711 F.3d

106, 114 (2d Cir. 2013); Busk v. Integrity Staffing Sols., Inc. (In re

Amazon.com, Inc.), 905 F.3d 387, 405-06 (6th Cir. 2018); Hirst, 910

F.3d at 966 (7th Cir. 2018), App. 8a; Landers v. Quality Communs.,

Inc., 771 F.3d 638, 645 (9th Cir. 2015).

variations in causes of action, fact-patterns

and attendant circumstances (e.g., warnings,

good faith of counsel). “Determining whether

a complaint states a plausible claim for relief

will . . . be a context-specific task that requires

the reviewing court to draw on its judicial

experience and common sense.” Iqbal, [556

U.S. at 679].

While specifics as to the named plaintiffs

here are lacking, some of the information

needed may be in the control of defendants.

Plaintiffs certainly know what sort of work

they performed and presumably know how

much they were paid as wages; but precisely

how their pay was computed and based upon

what specific number of hours for particular

time periods may depend on records they do

not have. Complaints cannot be based on

generalities, but some latitude has to be

allowed where a claim looks plausible based

on what is known.

Pruell v. Caritas Christi, 678 F.3d at 15 (1st Cir. 2012)

(remanding to allow amendment, pleading cannot be

based on “generalities”).

Third Circuit

None of the named plaintiffs has alleged a

single workweek in which he or she worked at

least forty hours and also worked

uncompensated time in excess of forty hours.

Of the four named plaintiffs who allege that

they “typically” worked at least forty hours

per week, in addition to extra hours

“frequently” worked during meal breaks or

outside of their scheduled shifts . . . none

indicates that she in fact worked extra hours

during a typical (that is, a forty-hour) week.

Their allegations are therefore insufficient.

....

In reaching this conclusion, we do not hold

that a plaintiff must identify the exact dates

and times that she worked overtime. For

instance, a plaintiff’s claim that she

“typically” worked forty hours per week,

worked extra hours during such a forty-hour

week, and was not compensated for extra

hours beyond forty hours he or she worked

during one or more of those forty-hour weeks,

would suffice. But no such allegation is

present in this case.

Davis v. Abington Mem’l Hosp., 765 F.3d at 242-43 (3d

Cir. 2014) (affirming district court’s dismissal).

Fourth Circuit

As compared to a more traditional

overtime claim based on an employee’s

standard hourly wage, Defendants’ alleged

piece-rate compensation system presents

certain additional complexity under the

FLSA. See 29 U.S.C. § 207(g) (setting out

various methods by which an employer may

comply with the statute's overtime provisions

under a piece-rate compensation scheme). At

this stage of the litigation, however, we need

not wade into these murky waters.

....

In this case, in addition to their common

allegations regarding the nature and

structure of the DIRECTV Provider Network,

Plaintiffs each describe in some detail their

regular work schedules, rates of pay, and

uncompensated work time. Specifically, each

Plaintiff provides an approximation of his

general workweek, with each Plaintiff

alleging that he typically worked in excess

(and, in some cases, well in excess) of forty

hours per week. Supplementing these initial

allegations, each Plaintiff further estimates

the number of hours he worked in any given

week, including a breakdown of the number of

compensable and noncompensable hours he

typically worked, as well as his average

weekly pay and the amount by which this

weekly compensation was typically reduced

through DIRECTV-imposed penalties and

unreimbursed business expenses.

This final level of granularity, coupled

with Plaintiffs’ common allegations regarding

the types of work DIRECTV designated as

compensable and noncompensable, ultimately

nudges Plaintiffs’ claims against Defendants

from the merely conceivable to the plausible.

At this initial stage, that is all that is required

to overcome Defendants’ motion to dismiss.

Hall v. DIRECTV, LLC, 846 F.3d at 777-79 (4th Cir.

2017) (reversing and remanding dismissal), cert.

denied, 138 S. Ct. 635 (2018).

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Eleventh Circuit

In their amended complaint, the

employees allege that they routinely worked

more than 40 hours per week without full

compensation because HMR deducted meal

breaks from their pay even when they were

not “completely relieved from duty.” They

state that during meal breaks they were

required to “care for patient needs” and

“tend[] to patients,” and they provide each

employee’s specific job title and list the weeks

each employee claims to have worked more

than 40 hours. Those allegations “plausibly

suggest” that they are entitled to relief under

the FLSA. See Ashcroft v. Iqbal, 556 U.S. 662,

680 (2009); see also Manning v. Boston Med.

Ctr. Corp., 725 F.3d 34, 45-46 (1st Cir. 2013)

(concluding that plaintiffs successfully

pleaded FLSA claims where they alleged that

they spent meal periods “complet[ing] their

regular

working

activities,”

including

“charting, performing administrative tasks,

monitoring

patients,

and

providing

treatment”).

....

[A] detailed description of the exact acts

each plaintiff performed during meal times is

not required. See [Twombly, 550 U.S.] at 555,

(“[A] complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed

factual allegations.”); Manning, 725 F.3d at

46 (“The fact that this assertion is not

accompanied by a detailed list of each and

every activity the plaintiffs and their fellows

performed without compensation does not

mandate the complaint’s dismissal.”). The

allegation that each employee was “car[ing]

for patient needs” and “tending to patients,”

when combined with each employee’s specific

job title, is more than “a formulaic recitation

of the elements” of an FLSA claim and is

enough to “give the defendant fair notice” of

the employees’ claims and the “grounds upon

which [they] rest.” Twombly, 550 U.S. at 555

(quotation marks omitted).

Because the amended complaint states

plausible claims under the FLSA, the district

court erred by dismissing with prejudice the

FLSA count.

Cooley v. HMR of Ala., Inc., 747 F. App’x at 807-08 (11th

Cir. 2018) (unreported opinion) (additional reporter

citations omitted).

D.C. District Court

In the circuits that have not weighed in on the

pleading requirements, district courts are grappling

with the same issue and are similarly divided. As the

D.C. District court explained:

In the Court’s view, there is no reason to

treat an FLSA claim in a manner different

from any garden-variety claim. Plaintiffs’

complaint must therefore “‘give the defendant

fair notice of what the . . . claim is and the

grounds upon which it rests,’” Twombly, 550

U.S. at 555 (quoting Conley, 355 U.S. at 47),

allege sufficient facts to establish that the

claim is at least plausible, id. at 570, and

avoid undue reliance on “labels and

conclusions,” id. This does not mean, however,

that a complaint must contain “detailed

factual allegations,” id., of the type

[defendant] would require—and that some

courts have required, see, e.g., Mell [v. Gnc

Corp., No. 10-945,] 2010 U.S. Dist. LEXIS

118938, 2010 WL 4668966 [(W.D. Pa. Nov. 9,

2010)], at *5-*9. Nothing in Rule 8(a) or in any

Supreme Court or D.C. Circuit precedent

imposes special pleading requirements in

FLSA cases. Neither Rule 8(a) nor any

controlling

precedent

demands,

[defendant] posits, that an FLSA plaintiff

allege who told her about her employer's

policy regarding overtime hours, when she

was told that she was required to work

without recording overtime hours, how her

employer's

policy

was

imposed,

approximately how many overtime hours she

worked each week without compensation. Cf.

Dkt. 8-1 at 6 (quoting Mell, 2010 U.S. Dist.

LEXIS 118938, 2010 WL 4668966, at *9).

That type of particularity is required to plead

fraud under Federal Rule of Civil Procedure

9(b), see, e.g., Stevens v. InPhonic, Inc., 662 F.

Supp. 2d 105, 114 (D.D.C. 2009) (explaining

that a complaint alleging fraud or mistake

must “provide a defendant with notice of the

‘who, what, when, where, and how’ with

respect to the circumstances of the fraud” to

satisfy Rule 9(b)’s heightened pleading

standard (internal quotation marks omitted)),

but not to plead a FLSA claim under Rule 8.

Galloway v. Chugach Gov’t Servs., 199 F. Supp. 3d 145,

150 (D.D.C. 2016).

Like the D.C. District Court in Galloway, other

district courts are striving to uniformly apply

competing FLSA pleading requirements, with nearly

identical cases (at times against the same employer)

being dismissed in one court while surviving dismissal

on the pleadings in another.

Four circuits require identifying a

specific workweek that was underpaid to

avoid dismissal on the pleadings.

By contrast, the following courts have adopted a

rule that any employee who cannot establish particular

weeks in which they were underpaid prior to discovery

cannot plausibly state a cause of action, regardless of

whether or not necessary schedule and payroll

information has been withheld by an employer.

Second Circuit

We conclude that in order to state a

plausible FLSA overtime claim, a plaintiff

must sufficiently allege 40 hours of work in a

given workweek as

well

some

uncompensated time in excess of the 40

hours. See 29 U.S.C. § 207(a)(1) (requiring

that, “for a workweek longer than forty

hours,” an employee who works ‘in excess of’

forty hours shall be compensated time and a

half for the excess hours).

Determining whether a plausible claim

has been pled is “a context-specific task that

requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal,

556 U.S. at 679. Reviewing Plaintiffs’

allegations, as the district court thoroughly

did, we find no plausible claim that FLSA was

violated, because Plaintiffs have not alleged a

single workweek in which they worked at

least

hours

and

also

worked

uncompensated time in excess of 40 hours.

Lundy v. Catholic Health Sys. of Long Island, Inc., 711

F.3d 106, 114 (2d Cir. 2013) (requiring pleading a

specific workweek for plausible FLSA overtime claims).

Sixth Circuit

“The FLSA mandates that ‘[e]very

employer shall pay to each of his employees

who in any workweek is engaged in commerce

or in the production of goods for commerce’ a

statutory minimum hourly wage.” Stein v.

HHGREGG, Inc., 873 F.3d 523, 530 (6th Cir.

2017) (citing 29 U.S.C. § 206(a)). “In addition,

if an employee works in excess of forty hours

a week, the employee must ‘receive[]

compensation for his employment in excess of

[forty hours] at a rate not less than one and

one-half times the regular rate at which he is

employed.’” Id. at 536 (quoting 29 U.S.C. §

207(a)). “The ‘regular rate’ is ‘the hourly rate

actually paid the employee for the normal,

nonovertime workweek for which he is

employed,’ and is ‘computed for the particular

workweek by a mathematical computation in

which hours worked are divided into straighttime earnings for such hours to obtain the

statutory regular rate.’” Id. at 536-37 (quoting

29 C.F.R. § 779.419). “Assuming a week-long

pay period, the minimum wage requirement

is generally met when an employee's total

compensation for the week divided by the

total number of hours worked equals or

exceeds the required hourly minimum wage,

and the overtime requirements are met where

total compensation for hours worked in excess

of the first forty hours equals or exceeds one

and one-half times the minimum wage.” Id. at

537 (citing Overnight Motor Transp. Co. v.

Missel, 316 U.S. 572, 580 n.16; United States

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

Cir. 1960)).

Thus, under federal law, Plaintiffs would

be required to identify a particular workweek

in which, taking the average rate, they

received less than the minimum wage per

hour.

Busk v. Integrity Staffing Sols., Inc. (In re Amazon.com,

Inc.), 905 F.3d 387, 405-06 (6th Cir. 2018) (additional

reporter citations omitted).

Seventh Circuit

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) [App.

32a-35a], 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.

Hirst v. SkyWest, Inc., 910 F.3d 961, 966 (7th Cir.

2018). App. 8a.

Ninth Circuit

We further agree with our sister circuits

that, at a minimum, a plaintiff asserting a

violation of the FLSA overtime provisions

must allege that she worked more than forty

hours in a given workweek without being

compensated for the hours worked in excess of

forty during that week. See Pruell, 678 F.3d

at 13; see also Lundy, 711 F.3d at 114; Davis,

765 F.3d at 242-43. Applying that standard to

the pleadings in this case, Landers failed to

state a claim for unpaid minimum wages and

overtime wages. The complaint did not allege

facts showing that there was a given week in

which he was entitled to but denied minimum

wages or overtime wages.

Landers v. Quality Communs., Inc., 771 F.3d at 645

(9th Cir. 2015).

Thus, in 2018 alone, four circuits entered opinions

on the pleading requirements of claims under the

FLSA. Two, including the Seventh Circuit’s decision in

Hirst and the Sixth Circuit’s decision in Busk, 905 F.3d

at 405-06, would require pleading a specific deficient

workweek to survive dismissal. And in the same year,

decisions in the Fourth and Eleventh Circuits fell on the

Iqbal context-specific side. See Hall, 846 F.3d at 777-79

(4th Cir. 2017) (reversing and remanding dismissal),

cert. denied, 138 S. Ct. 635 (2018) and Cooley, 747 F.

App’x at 807-08. The divide between the circuits is

becoming more entrenched and highlights the need for

resolution by this Court.

The likelihood of surviving a pre-discovery motion

to dismiss in a FLSA case now depends less on the facts

of the case and more on the circuit in which the case was

brought and the transparency of the employers’ payroll

system. This Court’s review and clarification of the

pleading requirements of claims brought under the

FLSA is of exceptional nationwide importance. A clear

and uniform rule would protect both employees who

must seek redress from the courts for wages due under

the FLSA and would offer employers the ability to

comply with the law on a uniform basis.

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II.

Circuits that require pleading based

on a specific workweek truncate longstanding administrative agency

guidance.

The Wage and Hour Division’s “workweek

averaging” to measure compliance with the FLSA is

frequently cited but rarely consulted. The legislative

history of the Act makes clear that that “the FLSA was

designed to give specific minimum protections to

individual workers and to ensure that each employee

covered by the Act would receive ‘[a] fair day’s pay for a

fair day’s work’ and would be protected from ‘the evil of

“overwork” as well as “underpay.”’” Barrentine v.

Arkansas-Best Freight Sys., 450 U.S. 728, 739 (1981)

(quoting Overnight Motor Transportation Co. v. Missel,

316 U.S. 572, 578 (1942), quoting 81 Cong. Rec. 4983

(1937) (message of President Roosevelt)) (emphasis in

original). As this Court recognizes, the FLSA grants

employees “broad access to the courts” with “no

exhaustion requirement or other procedural barriers.”

Id.

Section 206(a) of the Fair Labor Standards Act

requires that an employer “shall pay to each of his [nonexempt] employees who in any workweek is engaged in

commerce . . . not less than . . . $ 7.25 an hour.” 29 U.S.C.

§ 206(a). Although the “workweek” and “an hour”

terminology have been interpreted in various ways by

district and circuit courts, most accept the Wage and

Hour Division’s 1940 administrative policy suggesting

that averaging hourly wages across a workweek is

reasonable and permissible. “The workweek measuring

rod has never been promulgated as an agency

regulation; however, the Wage and Hour Division

continues to adhere to it, and the courts have agreed

that the workweek standard generally represents an

entirely reasonable reading of the statute.” Dove v.

Coupe, 759 F.2d 167, 172 (D.D.C. 1985) (Ginsburg, J.)

(citing Blankenship v. Thurston Motor Lines, 415 F.2d

1193, 1197-98 (4th Cir. 1969)) (emphasis added);

Klinghoffer, 285 F.2d at 490; McDowell v. Purolator

Courier Corp., 25 Wage & Hour Cas. (BNA) 503, 505-06

(E.D. Ky. 1982); Marshall v. Sam Dell’s Dodge Corp.,

451 F. Supp. 294, 301-03 (N.D.N.Y. 1978); Travis v. Ray,

41 F. Supp. 6, 9 (W.D. Ky. 1941). But cf. United States

v. Universal C.I.T. Credit Corp., 102 F. Supp. 179, 183

(W.D. Mo.) (dictum in criminal case), aff’d, 344 U.S. 218

(1952)). Since Dove, no circuit court has held that

weekly averaging cannot be used to measure minimum

wage compliance. Like other circuits, the Seventh

Circuit “adopt[ed] the per-workweek measure for

determining compliance with 29 U.S.C. § 206, without

industry-specific carveouts.” App. 7a.

However, “[t]he precedents on pleading specificity

are in a period of transition, and precise rules will

always be elusive because of the great range and

variations in causes of action, fact-patterns and

attendant circumstances (e.g., warnings, good faith of

counsel). ‘Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific

task that re quires the reviewing court to draw on its

judicial experience and common sense.’” Pruell, 678

F.3d at 15 (quoting Iqbal, 446 U.S. at 663-64).

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Wage averaging requires specific

information and records according to the

Wage and Hour Division’s long-standing

directives.

Returning to the original language of the Wage and

Hour Division’s 1940 opinion, the nuances of the issue

in this petition—whether employees must plead that

they were underpaid during one specific workweek to

survive dismissal—come into focus.

On February 5, 1940 the Wage and Hour Division’s

general counsel wrote:

In our opinion the longest period of time

over which wages may be averaged to

determine whether the employer has paid

wages at the rate of [the applicable FLSA

minimum wage] an hour is a workweek and

there may be no averaging of wages over two

or more workweeks.

....

There is no objection, of course, to a

biweekly, semi-monthly or monthly pay

period, but a single workweek is the longest

period which may be taken as the standard for

the purpose of computing the amount of

compensation due at each pay period.

The next question is whether the

workweek will be taken as the standard

period of time over which wages may be

averaged or whether a period less than a

workweek will be taken to determine

compliance with section 6. For enforcement

purposes, the Wage and Hour Division is at

present adopting the workweek as the

standard period of time over which wages

may be averaged . . . .

It must be remembered, however, that this

opinion is not binding upon the courts and will

not protect an employer in a civil suit brought

by his employees under the provisions of

section 16(b) of the act. [Examples given

about situations where courts may differ from

the Division’s opinion.] There may be other

cases where the courts might take a period of

less than a workweek as the standard under

section 6, but, as stated above, the Division

will take the workweek as the standard for

determining whether there has been

compliance with the law.

Portal-To-Portal Wages: Hearing Before the Subcomm.

On S. 70 of the S. Comm. On the Judiciary, 80th Cong.

329 (1947) (statement of Lee Pressman, General

Counsel, Wage and Hour Division, United States Dep’t

of Labor) (emphasis added).

By September 1941, difficulties enforcing the

FLSA’s minimum wage were becoming apparent. The

Wage and Hour Administrator, under Section 11(c),

was authorized to require every employer subject to

any provision of the Act “to make, keep, and preserve,”

but the information and data necessary for calculations

varied from section to section of the FLSA as well as by

the payroll structure of employers. Bureau of Nat’l

Affairs, Wage-Hour Records; What Records to Keep

and How to Keep Them 11 (1941) (reprinted from Wage

Hour Reporter, 4 WHR 492, Explanatory Bulletin 4

(September 15, 1941)). The Wage and Hour Division

promulgated a series of record-keeping requirements,

forewarning employers that relief from preserving

records would be granted “[o]nly where the

preservation of certain records are found unnecessary

for determining or securing compliance with any

provisions of the Act or Regulations, other than

Recordkeeping Regulations.” Id. at 10. The Wage and

Hour Division’s September 15, 1941 recordkeeping

requirements are virtually identical to those required

now. Compare id. at 12-14 to C.A. App. 182-83, 422-23

(U.S. Dep’t of Labor, Wage and Hour Division, Fact

Sheet, last revised July 2008). These requirements are

particularly important when translating piece-rate

wages into actual hourly wages, as in this case.

As detailed on Wage and Hour Division Fact

Sheet #21, revised July 2008, every employer must

maintain these basic records:

1. Employee’s full name and social security

number.

2. Address, including zip code.

3. Birth date, if younger than 19.

4. Sex3 and occupation.

5. Time and day of week when employee’s

workweek begins.

6. Hours worked each day.

7. Total hours worked each workweek.

8. Basis on which employee’s wages are paid

(e.g., “$9 per hour,” “$440 a week,”

“piecework”).

9. Regular hourly pay rate.

3 The inclusion of recordkeeping of each employee’s sex is the

lone change in requirements since 1941.

10. Total daily or weekly straight-time

earnings.

11. Total overtime earnings for the

workweek.

12. All additions to or deductions from the

employee’s wages.

13. Total wages paid each pay period.

14. Date of payment and the pay period

covered by the payment.

C.A. App. 182.

The Wage and Hour Division

intended the workweek to be the

longest period of wage averaging, not

the only acceptable period.

Unlike the Seventh Circuit (and district court) in

this matter, even in the early 1940s the Wage and Hour

Division recognized that certain identifiable facts are

necessary to calculate straight time hourly wages for

employees with piece-rate earnings or more than one

rate of pay—even if averaged based on a workweek.

“The hourly rate for all [variable wage rate] employees

. . . depends on the total hours worked in any workweek

divided into the total straight time earnings, wages or

salary of that workweek. It is necessary, therefore, for

the employer to indicate in his pay-roll records the

period covered by each employee’s workweek. . . .”

Bureau of Nat’l Affairs, Wage-Hour Records 13 (1941).

“The employer may select any time desirable to begin

and end the employee’s workweek, as for instance,

midnight Saturday or high noon Wednesday. . . . A

workweek, however, must be established and it may not

then be varied for purposes of evasion of either the

minimum wage or overtime provisions Act.” Id.

(emphasis added). “In order to determine compliance

with the Act, it is necessary for the employer to

maintain records which will establish either daily or

weekly straight-time earnings. This can be done by

showing straight-time earnings or wages by the day or

by keeping the total earnings or wages for the

individual work-week.” Id. (emphases added).

SkyWest, in the district court proceedings,

acknowledged that it does not track the “total hours”

any flight attendant works in any given workweek. C.A.

App. 114, 120, 443-44, 515-17. Nor has it selected a

specific and unvarying time to begin and end their

workweek. C.A. App. 129, 518. And there is no

indication that SkyWest regularly calculates, or is even

aware of, any flight attendants’ straight time earnings.

C.A. App. 91 n.1.

Some employers, unlike SkyWest, include

mechanisms to assure FLSA compliance on a

“workweek” basis. See, e.g., Douglas v. Xerox Bus.

Servs., Ltd. Liab. Co., 875 F.3d 884, 885 (9th Cir. 2017)

(unpublished) (“Under Xerox’s mind-numbingly

complex payment plan, employees earn different rates

depending on the task and the time spent on that task.

. . . If the resulting hourly wage equals or exceeds

minimum wage, Xerox does not pay the employee

anything more. However, if the ratio falls below

minimum wage [averaged weekly], Xerox gives the

employee subsidy pay to bump the average hourly wage

up to minimum wage.”). Meanwhile, other employers

like SkyWest, can (and certainly do) concoct unwieldy

payroll schemes that lack mechanisms to assure

“workweek” compliance to hedge accountability. Where

that is the case, a context-specific pleading standard,

like the pairing-measure suggested here, is consistent

with both the Wage and Hour Division’s “no longer than

a workweek” guidance and Iqbal’s context-specific

pleading.

III.

Workweek averaging is inappropriate

in the context of SkyWest’s scheduling

and payroll systems.

Pairing-based averaging is the

appropriate context-specific pleading

given SkyWest’s complex payroll

system.

The Seventh Circuit—and the district court before

it—erred when each held that to plead a viable Fair

Labor Standards Act claim, employees must point to a

single specific week in which they were underpaid. This

specious pleading standard is contrary to the plain

language and legislative intent of the FLSA and would

have a destructive consequence of encouraging

employers to devise payroll systems as complex and

opaque as possible rather than paying employees as

required.

In so holding, the Seventh Circuit truncated the

very administrative agency directives it cites. See

supra Section II. And instead of being consistent with

the holdings of the circuits as it claims, it creates a

wider split between the circuits such that an underpaid

employee’s access to relief under the FLSA is dependent

upon where she works in the country. See supra Section

I. Finally, and most critically, this rigid standard

ignores Ashcroft v. Iqbal ’s admonition that a plausible

claim for relief will “be a context-specific task that

requires the reviewing court to draw on its judicial

experience and common sense.” 556 U.S. at 679

(emphasis added). The rigidity of the “single workweek”

pleading standard ignores the complexity of certain

payroll schemes, and if permitted to stand, slams the

doors of the courts to low wage earners in the Seventh

and other “specific workweek” circuits whose

employers, like SkyWest, devise unnecessarily complex

pay structures.

Take, for example, a common scheduling practice

of certain manufacturing plants in which employees

work four days, then have four days off, often working

on a piece-rate pay system. A rigid 7-day workweek

pleading standard splits the employees’ schedule

irregularly. With the current circuit split, half of the

circuits that have weighed in on the FLSA pleading

standard would allow four-day averaging, while the

other half of the circuits are likely to require seven-day

averaging. This Court’s holding in Iqbal, in the

petitioners’ view, would permit four-day averaging.

For the purpose of pleading underpayment of

wages in this case, and consistent with both Iqbal and

the Wage and Hour Division’s administrative opinions,

see supra Section II, it makes the most sense to require

the flight attendant plaintiffs to plead their earnings

averaged across “pairings.” Pairings are the functional

equivalent of the workweek of other occupations,

because each pairing represents a single cohesive unit

of labor as scheduled by the airline. Each pairing

consists of a series of flights beginning and ending at

the employee’s base airport, and one to four days in

length. Thus, each pairing stands alone for scheduling

purposes, often marked by at least twenty-four hours off

before and after the pairing to meet FAA rest time

requirements.

Figure 1, Ca. App. 144, is an example of an actual

pairing worked by petitioner Hirst. It is a relatively

simple four-day pairing that the petitioners in their

complaints included for explanatory purposes. It does

not demonstrate a FLSA violation, but it demonstrates

the level of complexity of SkyWest’s scheduling system

and the pieces of time that are (and are not) included in

pay calculations.

Ignoring the complexity of SkyWest’s payroll and

scheduling, the Seventh Circuit erred when it opined

that “[t]he same principles for pleading overtime pay

violations apply to minimum wage violations.” This

assertion ignores the complexity of minimum wage

calculations in a piece-rate system. Through its overreliance on the district court’s analysis, the Seventh

Circuit created a barrier that impedes access to the

courts for employees paid according to complex and

irregular piece-rate pay schemes that result in variable

hourly wages. In holding that to survive a motion to

dismiss, flight attendants must plead “at least one

workweek in which he or she was underpaid,” the

Seventh Circuit’s result directly defeats the purpose of

the FLSA. App. 8a; see Dove, 759 F.2d at 171

(quoting Brooklyn Savings Bank v. O’Neil, 324 U.S.

697, 706 (1945) (“The purpose of the minimum wage

provisions is ‘to protect certain groups of the population

from sub-standard wages . . . due to . . . unequal

bargaining power.’”).

Here, the flight attendants pleaded far more than

“a formulaic recitation of the elements” and certainly

gave the defendant fair notice of their claims and the

grounds for those claims. Twombly, 550 U.S. at 555.

Yet, the specious pleading requirements of the Seventh

Circuit and the other “specific workweek” circuits,

discussed supra, would prefer to strip away vital

protections promised to low-wage employees through

the FLSA than to permit that the case be decided on the

merits. These circuits threaten to leave these

employees, including the flight attendants in Hirst,

with little or no legal recourse when their wages fall

below the already-paltry federal minimum wage rate,

especially when an employer can (and does) simply

refuse to provide its employees access to their own

records so they may accurately calculate straight-time

earnings.

For SkyWest flight attendants, the

specific workweek pleading requirement

is especially detrimental.

The Seventh Circuit’s pleading requirement has

an even more catastrophic impact on flight attendants

in light of SkyWest’s claim that it—and other airlines—

have a constitutional right to ignore all state and local

labor laws.4 If the Court were to constrict the

protections of the FLSA and extinguish those offered by

state and local labor laws for flight attendants, these

employees—who must pass some of the strictest

background checks in any industry and are trained to

protect airline passengers in emergencies—would be at

the mercy of the airlines’ goodwill. Yet SkyWest and

other airlines5 apparently see no reason to ensure that

See SkyWest, Inc., et al. v. Andrea Hirst, et al., U.S.

Supreme Court Case No. 18-1097, Petition for a Writ of Certiorari.

5 See SkyWest, Inc., et al. v. Andrea Hirst, et al., U.S.

Supreme Court Case No. 18-1097, Brief amicus curiae of Airlines

for America.

every flight attendant, regardless of seniority, receives

“a fair day’s pay for a fair day’s work.”

CONCLUSION

The Court should grant certiorari to reign in the

circuits’ varying pleading requirements under the

FLSA, maintaining consistency with the Wage and

Hour Division’s opinion that the “longest period” (not

“only period”) of wage averaging is a workweek, with

the requirements of Twombly and Iqbal, and especially

with the plain language of Federal Rule of Civil

Procedure 8(a).

Respectfully submitted,

/s/ Gregory F. Coleman

Gregory F. Coleman

Counsel of Record

Lisa A. White

Arthur Stock

William A. Ladnier

Ryan P. McMillan

GREG COLEMAN LAW PC

800 S. Gay Street, Suite 1100

Knoxville, TN 37929

T: (865) 247-0080

greg@gregcolemanlaw.com

Attorneys for Petitioners

APPENDIX

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_____________________

Nos. 17-3643 & 17-3660

ANDREA HIRST, et al.,

Plaintiffs-Appellants,

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

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.

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).

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).

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

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

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

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

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.

10a

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

11a

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.

12a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREA HIRST, et al.,

Plaintiffs,

SKYWEST, INC., et al.

Defendants.

CHERYL TAPP, et al.,

Plaintiffs,

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

13a

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.

14a

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).

15a

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.

16a

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.

17a

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

18a

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.

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

19a

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.

20a

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

not

sufficiently

allege

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

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

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

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

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

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.

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

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,

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

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

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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

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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

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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

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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

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“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,

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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”).

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

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