Petition for Writ of Certiorari — Robin Brindle, et al., Petitioners v. Delta Airlines, Inc., et al.

Supreme Court briefSep 13, 2019

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APPENDIX A

Supreme Court of Rhode Island

Robin BRINDLE et al.

v.

RHODE ISLAND DEPARTMENT OF LABOR AND

TRAINING, by and through its Director, et al.

No. 2016-324-M.P. (PC 12-3075)

No. 2016-325-M.P. (PC 12-3076)

No. 2016-326-M.P. (PC 12-3073)

No. 2016-328-M.P. (PC 12-3072)

No. 2016-329-M.P. (PC 12-3071)

June 18, 2019

Justice Goldberg, for the Court.

These consolidated cases came before the Supreme Court on November 27, 2018. The petitioners,

Robin Brindle, Kathleen Brown, Sandra Carter,

Marcie LaPorte, and Kelvin Ramirez (a/k/a Kevin

Ramirez) (collectively petitioners), filed petitions for

writ of certiorari to this Court pursuant to the Administrative Procedures Act, G.L. 1956 § 42-35-16,

seeking review of a Superior Court judgment affirming a decision of the Rhode Island Department of

Labor and Training (the DLT) that denied the petitioners’ wage and hour claims against Delta Airlines,

Inc. (Delta). Before this Court, the petitioners argue

that the Superior Court erred in affirming the DLT’s

finding that G.L. 1956 § 25-3-3 is preempted by federal law, specifically, 49 U.S.C. § 41713(b)(1) of the

Airline Deregulation Act (ADA). For the reasons set

forth herein, we affirm the judgment of the Superior

Court.

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Facts and Travel

Between September 6, 2011, and September 13,

2011, petitioners, who were customer service agents

for Delta at its facility at the T.F. Green Airport in

Warwick, Rhode Island, filed five separate individual

“nonpayment of wages” complaints with DLT. Each

complaint alleged that Delta violated the provisions

of § 25-3-3 by failing to pay petitioners time-and-ahalf for hours worked on Sundays and holidays. Delta filed a response with DLT on November 16, 2011,

arguing that the complaints should be dismissed because § 25-3-3, which mandates the payment of timeand-a-half for work performed on Sundays and holidays, is preempted by the ADA. Section 25-3-3(a)

provides, in part, that:

“Work performed by employees on Sundays and

holidays must be paid for at least one and onehalf (1 1/2) times the normal rate of pay for the

work performed; provided: (1) that it is not

grounds for discharge or other penalty upon

any employee for refusing to work upon any

Sunday or holiday enumerated in this chapter[.]”

The petitioners’ complaints and Delta’s letter

were addressed at a hearing before a DLT hearing

officer on May 8, 2012. At the hearing, the hearing

officer did not take testimony or receive other evidence. Instead, the hearing officer indicated that she

was “inclined to agree with” Delta that § 25-3-3 is

preempted by the ADA; but she allowed petitioners

to raise any arguments that their wage complaints

were not preempted. The petitioners elected not to

raise any argument before the hearing officer on the

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issue of preemption. In a written decision, 1 the hearing officer concluded that the DLT was “preempted

from enforcing wage laws for airline employees” because requiring Delta to pay petitioners time-and-ahalf for hours worked on Sundays and holidays relates to Delta’s prices, routes, or services, which, in

turn, triggers preemption in accordance with the

ADA. The hearing officer declared that DLT has no

authority to adjudicate the claims, and therefore

dismissed all five complaints. The petitioners timely

appealed to the Superior Court, in accordance with

§ 42-35-15. 2

On appeal before the Superior Court, petitioners

argued that the hearing officer’s decision to dismiss

the complaints was affected by an error of law because the ADA does not preempt § 25-3-3. The Superior Court subsequently concluded that the hearing

officer erred in dismissing petitioners’ complaints

because she failed to hear, review, or weigh evidence

demonstrating that petitioners’ wage complaints had

a sufficient connection to Delta’s prices, routes, or

services to warrant preemption. In accordance with

§ 42-35-15, the Superior Court remanded the case to

the DLT for a further hearing and a finding of fact

on the issue of the effect of employee wages on Delta’s prices, routes, and services.

The remand hearing was conducted by the DLT

on May 4, 2015, before the same hearing officer. At

1 Because petitioners filed separate individual complaints with

the DLT, the DLT issued five separate decisions, indistinguishable in substance.

2 The petitioners originally filed separate appeals with the Superior Court on June 15, 2012; however, because each case presented identical legal issues, petitioners’ appeals were consolidated by the Superior Court on October 5, 2012.

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that hearing, Kelly Fredericks, President and CEO

of the Rhode Island Airport Corporation (RIAC), testified to his experience in the aviation and transportation industry, which spanned more than thirty

years. Mr. Fredericks explained that a critical component of his job at RIAC was to attract and maintain air-carrier service at T.F. Green Airport, which

services eight airline carriers and approximately

10,000 travelers per day. He testified that cost and

demand, including labor costs, are factors that air

carriers take into consideration when deciding

whether to do business in Rhode Island. Mr. Fredericks agreed that higher labor costs in Rhode Island

would make RIAC “less competitive in the market

for air services” and therefore that a statute that requires Sunday and holiday premium pay could have

a significant negative impact on air carriers conducting business in Rhode Island; could alter flights into

and out of the airport; or could affect the number of

employees scheduled for Sundays or holidays.

Sandra LaPlante, the station manager for Delta

at T.F. Green Airport, testified next that she had

worked for Delta for twenty years and that her duties include oversight of Delta’s day-to-day operations, including managing and scheduling a team of

twenty-five customer service agents and ensuring

that Delta’s T.F. Green location is sufficiently staffed

for operations. Ms. LaPlante testified that service on

Sundays and holidays is important to Delta, as its

T.F. Green Airport location operates seven days per

week. She next explained that, if Delta were forced

to pay Sunday premium time to its Rhode Island

workers, it could affect the customer service that is

provided at T.F. Green Airport and cause Delta to

modify the services that it provides on those particu-

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lar days because it could lead to a reduction of staff.

After considering the testimony and weighing the

credibility of the witnesses, the hearing officer, for

the second time, concluded that petitioners’ wage

claims were preempted by the ADA, and she dismissed the complaints. In a written decision, the

hearing officer found that Ms. LaPlante’s testimony

was persuasive because of her twenty years with

Delta, in various positions, including station manager charged with overseeing customer service. In

reaching her conclusion, the hearing officer pointed

to Ms. LaPlante’s testimony that an increase in employees’ wages would affect Delta’s services. The

hearing officer also found that, although not specific

to Delta, the testimony of Mr. Fredericks about the

factors that an air carrier considers when determining whether to locate or remain at a particular airport applied to air carriers such as Delta and was

supported by the testimony of Ms. LaPlante. Therefore, because the testimony demonstrated “that increased pay on Sundays and holidays could impact

staffing which would impact the level of service[,]”

the hearing officer found that § 25-3-3’s time-and-ahalf requirement is preempted from application at

T.F. Green Airport by the ADA.

The petitioners appealed the second decision to

the Superior Court and argued that the hearing officer committed an error of law in finding that § 253-3 was preempted because the potential for an increase in labor costs posed by compliance with § 253-3 is, petitioners opined, insufficient to trigger

preemption. The petitioners also argued that the decision of the hearing officer is flawed because Delta

failed to prove that increased labor costs would have

a significant impact on prices, routes, or services. In

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turn, it was Delta’s contention that § 25-3-3 is a

“blue law” designed to regulate work and wages on

Sundays and holidays. Delta argued that, if made

applicable to airlines, § 25-3-3 would dictate how airline carriers can employ employees, which is sufficient to trigger preemption. 3 Delta also claimed that

the decision of the hearing officer was supported by

substantial evidence in the record to demonstrate

that requiring Delta to comply with § 25-3-3 would

significantly impact its prices, routes, and services.

In a written decision, the Superior Court affirmed

the decision of the hearing officer. The Superior

Court justice found that, as a matter of law, § 25-3-3

is preempted by the ADA because the statute attempts to regulate the work force on Sundays and

holidays, which “affects the competitive market force

of airlines.” The Superior Court justice explained

that requiring air carriers in Rhode Island to comply

with § 25-3-3’s premium pay provision would have a

direct impact on the prices, routes, and services of

Delta because it would influence their decisionmaking process regarding discretionary services,

customer interaction, and staffing. In addition, the

Superior Court justice concluded that the decision of

the hearing officer was not clearly erroneous, but it

was supported by adequate and legally competent

evidence. Specifically, the Superior Court justice explained that the hearing officer accepted Mr. Fredericks and Ms. LaPlante’s testimony concerning the

effect that § 25-3-3 would have on Delta’s prices,

routes, and services as credible, and she favorably

3 Although not raised by

the parties, we note that G.L. 1956

§ 25-3-3 allows an employee to refuse “to work upon any Sunday or holiday[.]”

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noted their demeanor and forthright answers. The

Superior Court thus concluded that the decision of

the hearing officer was “neither affected by error of

law nor clearly erroneous.”

Standard of Review

On certiorari, this Court does not weigh the evidence; instead, “we limit the scope of our review to

the record as a whole to determine whether any legally competent evidence exists therein to support

the trial court’s decision or whether the trial court

committed error of law in reaching its decision.”

Rhode Island Temps, Inc. v. Department of Labor

and Training, Board of Review, 749 A.2d 1121, 1124

(R.I. 2000). Legally competent evidence is defined as

“such relevant evidence that a reasonable mind

might accept as adequate to support a conclusion,

and means an amount more than a scintilla but less

than a preponderance.” Id. at 1125 (quoting Center

for Behavioral Health, Rhode Island, Inc. v. Barros,

710 A.2d 680, 684 (R.I. 1998)). This Court engages in

a de novo review of determinations of law made in

the course of an administrative proceeding. See

Johnston Ambulatory Surgical Associates, Ltd. v.

Nolan, 755 A.2d 799, 805 (R.I. 2000). We will reverse

a decision of the Superior Court in this context only

if we find that the decision has “no reliable, probative, [or] substantial evidence” to support it. State v.

Rhode Island State Labor Relations Board, 694 A.2d

24, 28 (R.I. 1997) (quoting Barrington School Committee v. Rhode Island State Labor Relations Board,

608 A.2d 1126, 1138 (R.I. 1992)).

Discussion

The sole issue before the Court is whether the Su-

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perior Court erred in affirming DLT’s finding that

§ 25-3-3 is preempted by 49 U.S.C. § 41713(b)(1) of

the ADA. Specifically, we are tasked with considering whether the Superior Court justice committed an

error of law in upholding the decision of the DLT

that compliance with the requirements of § 25-3-3

will significantly impact the prices, routes, and services of airline carriers and, thus, is preempted by

the ADA. We perceive no error.

The ADA was enacted in 1978 to promote “efficiency, innovation, and low prices” in the air transportation industry through “maximum reliance on

competitive market forces and on actual and potential competition[.]”49 U.S.C. §§ 40101(a)(6), 12(A);

Northwest, Inc. v. Ginsberg, 572 U.S. 273, 280, 134

S.Ct. 1422, 188 L.Ed.2d 538 (2014). By enacting the

ADA, Congress largely deregulated domestic air

transportation. See American Airlines, Inc. v.

Wolens, 513 U.S. 219, 222, 115 S.Ct. 817, 130

L.Ed.2d 715 (1995). “To ensure that the States would

not undo federal deregulation with regulation of

their own,” Congress included a preemption clause

as part of the ADA. Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d

157 (1992). Under the preemption clause, the party

claiming that preemption applies must establish

that “a State, political subdivision of a State, or political authority of at least [two] States * * * enact[ed] or [is] enforc[ing] a law, regulation, or other

provision having the force and effect of law related to

a price, route, or service of an air carrier[.]” See 49

U.S.C. § 41713(b)(1). A law “relates to” a price, route,

or service of an air carrier if it has “a connection

with, or reference to” an air carrier’s prices, routes,

or services. Morales, 504 U.S. at 384, 112 S.Ct. 2031.

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Thus, where a state law has “the forbidden significant effect” on the prices, routes, or services of an air

carrier, the ADA preempts that law. See id. at 388,

112 S.Ct. 2031; see also United Parcel Service, Inc. v.

Flores-Galarza, 318 F.3d 323, 335 (1st Cir. 2003).

It is clear that federal preemption of state law is a

matter of federal constitutional law. The Supremacy

Clause, in Article VI of the United States Constitution, directs that federal law “shall be the supreme

law of the land; and the judges in every state shall

be bound thereby * * *.” U.S. Const. Art. VI, cl. 2.

Under the Supremacy Clause, if Congress so intends, state laws may be preempted by federal law

and will be considered to be “without effect.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112

S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114,

68 L.Ed.2d 576 (1981)). The intention to preempt

state law may arise explicitly from the language employed in the statute or implicitly from the statute’s

structure and purpose. Morales, 504 U.S. at 383, 112

S.Ct. 2031. In the case at bar, Delta relies upon the

express language of the ADA in asserting that petitioners’ state law claims are preempted.

The United States Supreme Court has offered important guidance as to how the ADA’s preemption

clause is to be interpreted. Notably, the Supreme

Court has recognized that the term “related to” in

the phrase “related to a price, route, or service” expresses “a broad pre-emptive purpose.” See Ginsberg,

572 U.S. at 281, 134 S.Ct. 1422 (noting that the

phrase “other provision having the force and effect of

law” is much more broadly worded than other legislation that expressly applies only to a law or regulation; therefore, ADA preemption includes suits at

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common law); see also Wolens, 513 U.S. at 225, 115

S.Ct. 817; Morales, 504 U.S. at 383, 384, 112 S.Ct.

2031. For example, in Morales, the United States

Supreme Court held that the ADA expressly

preempted the application of state deceptive business practice statutes to airline fare advertisements

because such regulation related to the content and

format of air carrier fare advertising and had a “significant impact upon the airlines’ ability to market

their product, and hence a significant impact upon

the fares they charge.” Morales, 504 U.S. at 390, 112

S.Ct. 2031. The Court explained that the ADA’s

broad preemption clause meant state laws and regulations “having a connection with or reference to airline ‘rates, routes, or services,’ are pre-empted” by

the ADA. Id. at 384, 112 S.Ct. 2031. Thus, even an

indirect effect by a state law of general applicability

is sufficient to meet the “related to” language in the

preemption clause. Id. at 386-87, 112 S.Ct. 2031. On

the other hand, the Supreme Court has recognized

that, in some cases in which the preemption bar is

raised, the challenged enactment may have “‘too

tenuous, remote, or peripheral a manner’ to have

pre-emptive effect.” Id. at 390, 112 S.Ct. 2031 (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 100

n.21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)).

Next, in Wolens, the Supreme Court reaffirmed

the breadth of the ADA’s preemption clause; in that

case, the plaintiffs were participants in American

Airlines’ frequent-flyer program who claimed to be

injured by modifications to the program and brought

suit claiming breach of contract and violation of the

Illinois Consumer Fraud Act. Wolens, 513 U.S. at

224-25, 115 S.Ct. 817. The Supreme Court held that

claims under the Illinois Consumer Fraud Act were

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preempted by the ADA, but that the breach-ofcontract claims were not. Id. at 226, 115 S.Ct. 817.

The Supreme Court explained that the frequent-flyer

program in question related to the air carrier’s rates

because the airline gave mileage credits for free tickets, upgrades, and services, and because the program provided access to flights and service class upgrades regardless of capacity controls and blackout

dates. Id. In contrast, the breach-of-contract claims

were not preempted because they did not allege a violation of a state-imposed obligation, but rather alleged a violation of a self-imposed (contractual) obligation. Id. at 229, 115 S.Ct. 817. The Supreme Court

stressed that the purpose of the ADA was to promote

market efficiency and that the ability to enforce private contracts through a breach-of-contract action

was fundamental to a stable and efficient market.

Id. at 230, 115 S.Ct. 817.

Most recently, in Ginsberg, the Supreme Court

held that an airline customer’s claim for breach of

the implied covenant of good faith and fair dealing

was preempted by the ADA. Ginsberg, 572 U.S. at

288, 134 S.Ct. 1422. The airline had terminated the

customer’s membership in the airline’s frequent flyer

program based on alleged abuse of the program. Id.

at 277, 134 S.Ct. 1422. The customer sued, alleging,

among other things, that the termination of his

membership violated the implied covenant of good

faith and fair dealing. Id. at 278, 134 S.Ct. 1422. The

Supreme Court explained that even state commonlaw rules such as the implied covenant of good faith

and fair dealing are preempted by the broad sweep

of the ADA such that an exemption for common-law

claims would be contrary to the ADA’s central purpose. Id. at 281-82, 134 S.Ct. 1422. The Supreme

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Court went on to explain that what was important

was the effect of the challenged provision on prices,

routes, or services, because state common-law rules

can undermine the purpose of the ADA as much as a

statute or regulation can. Id. at 282, 283, 134 S.Ct.

1422. The Supreme Court further explained that the

claim in question was clearly related to “rates,

routes, or services” because the plaintiff sought reinstatement in the airline’s frequent-flyer program so

that he could accrue mileage credits that could be

redeemed for tickets and upgrades. Id. at 284-85,

134 S.Ct. 1422.

Accordingly, federal preemption under the ADA

extends to claims related to state consumerprotection statutes, frequent-flyer programs, common-law implied covenants, and advertising guidelines, because of a connection to the core “services”

that an airline provides. With these principles in

mind, we turn to the merits of whether petitioners’

claims are preempted by the ADA.

As a preliminary matter, the fact that § 25-3-3

may impose costs on airlines and therefore adversely

affect fares is inconsequential. As the First Circuit

noted, were preemption to apply to a state law solely

in that circumstance, preemption “would effectively

exempt airlines from state taxes, state lawsuits of

many kinds, and perhaps most other state regulation

of any consequence.” DiFiore v. American Airlines,

Inc., 646 F.3d 81, 89 (1st Cir. 2011). Because “countless state laws have some relation to the operations

of airlines and thus some potential effect on the prices charged or services provided[,]” we recognize that

there is a limit to the ADA’s preemptive scope. Id. at

86 (emphasis in original). Nevertheless, on certiorari, petitioners argue that Delta failed to satisfy its

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burden of proof of demonstrating that compliance

with § 25-3-3 would have a “significant impact” on

its prices, routes, and services because, petitioners

contend, the record is devoid of any facts upon which

one could reasonably conclude that an increase in

labor costs alone would have any impact on rates,

routes, and services, “much less a significant impact.” Contrary to petitioners’ contention, however,

Delta has demonstrated that compliance with § 25-33 goes far beyond a mere increase in labor costs.

The First Circuit has emphasized that evidence of

“a statute’s ‘potential’ impact on carriers’ prices,

routes, and services can be sufficient if it is significant, rather than tenuous, remote, or peripheral.”

Massachusetts Delivery Association v. Coakley, 769

F.3d 11, 21 (1st Cir. 2014); see Dilts v. Penske Logistics, LLC, 769 F.3d 637, 647 (9th Cir. 2014) (stating

that even a statute’s potential impact on carrier’s

prices, routes, and services can be sufficient). Empirical evidence in this regard is not necessary, and

courts may “look to the logical effect that a particular scheme has on the delivery of services or the setting of rates.” Coakley, 769 F.3d at 21 (brackets

omitted) (quoting New Hampshire Motor Transport

Association v. Rowe, 448 F.3d 66, 82 n.14 (1st Cir.

2006)). Such “logical effect can be sufficient even if

indirect.” Id.

The petitioners take issue with the fact that Delta’s evidence at the remand hearing was limited to

two witnesses who failed to provide “a single fact upon which it could base a prediction of such baleful

effects.” Specifically, petitioners assert that Delta

failed to satisfy its burden of demonstrating how

compliance with § 25-3-3 would affect labor costs and

how compliance with § 25-3-3 would be so onerous as

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to drive airlines away from Rhode Island, because

Delta’s witnesses were not experts, their opinions

were speculative, and their conclusions were unsupported by facts or quantifiable evidence. However,

we are hard-pressed to agree because, as elucidated

above, conclusive evidence of the potential impact is

not required to trigger preemption. The First Circuit

in Coakley did not announce a categorical rule that

an airline always needs to provide analytical data on

the effect of a petitioner’s claim on its prices or services in order to demonstrate preemption under the

ADA. Rather, in deciding the preemption question,

the First Circuit explicitly “allowed courts to ‘look to

the logical effect that a particular scheme has on the

delivery of services or the setting of rates.’” Coakley,

769 F.3d at 21 (brackets omitted) (quoting Rowe, 448

F.3d at 82 n.14).

During the remand hearing before the hearing officer, Delta offered the sworn testimony of Ms.

LaPlante, the station manager for Delta at T.F.

Green Airport, and Mr. Fredericks, President and

CEO of RIAC. They testified that forcing Delta, and

other airlines, to comply with the requirements of §

25-3-3 could impact the services that Delta and other

airlines provide on Sundays and holidays. 4 Mr.

Fredericks testified that, in his experience, forcing

compliance with § 25-3-3’s time-and-a-half pay

would have a direct impact on an airline’s decisionmaking process concerning discretionary services,

customer interaction, and staffing. He testified that

Sundays and holidays are some of the most im4 As relevant here, “service” includes “steps that occur before *

* * the airplane is actually taxiing or in flight.” DiFiore v.

American Airlines, Inc., 646 F.3d 81, 87-88 (1st Cir. 2011).

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portant days to RIAC and stated that increased labor costs “could lead to reduction in service from a

flight frequency opportunity[.]” In addition, Ms.

LaPlante testified that one of her main duties is to

ensure that Delta provides superior customer service, and that forcing Delta to pay premium pay to

its Rhode Island employees could impact or modify

staffing and services; this, according to Ms.

LaPlante, would likely cause airlines like Delta to

reduce staff on Sundays and holidays and would

make Delta less competitive in the Rhode Island

market. With this testimony in hand, the conclusion

that requiring airlines such as Delta to provide oneand-one-half-times the normal rate of pay for work

on Sundays and holidays does in fact “relate to” the

services provided by Delta. Thus, the “logical effect”

of § 25-3-3 on Delta’s delivery of services is sufficient

to bring it within the preemptive scope of the ADA.

Accordingly, we are satisfied that there was sufficient evidence in the record for the Superior Court to

conclude that DLT’s decision was supported by adequate and legally competent evidence.

Conclusion

For the reasons set forth herein, we affirm the

judgment of the Superior Court. The record may be

remanded to the Superior Court with our decision

endorsed thereon.

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APPENDIX B

Superior Court of Rhode Island

Providence County

Kathleen BROWN, Robin Brindle, Sandra Carter,

Kimberly Clayman, Marcie Laporte, and Kelvin

Ramirez, aka Kevin Ramirez, Plaintiffs,

v.

DELTA AIRLINES, INC., Defendants.

No. PC 12-3075.

October 3, 2016.

Decision

MCGUIRL, J. The Plaintiffs—Kathleen Brown,

Robin Brindle, Sandra Carter, Kimberly Clayman,

Marcie Laporte, and Kevin Ramirez (Plaintiffs)—

seek judicial review of a decision of the Board of Review of the Department of Labor and Training

(Board of Review or DLT). In its decision, the Board

of Review rejected the Plaintiffs’ claims for wages

and found that requiring Delta Airlines, Inc. (Delta)

to pay its employees one and one-half times the

normal rate of pay for hours worked on Sundays and

holidays, as required by G.L. 1956 § 25-3-3, is related to the rates, routes, or services of airline carriers

and therefore is preempted by the Airline Deregulation Act (ADA), 49 USC § 40101(a)(12). The Court

exercises jurisdiction pursuant to G.L. 1956 §§ 4235-15, et seq. For the reasons set forth herein, this

Court affirms the DLT’s decision.

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I

Facts and Travel

The Plaintiffs were employees of Delta at Delta’s

facility in the T.F. Green Airport in Warwick, Rhode

Island (TF Green). Between September 6 and September 13 of 2011, the Plaintiffs filed complaints

with the DLT, alleging that Delta violated provisions

of §§ 25-3-1, et seq., entitled “Work on Sundays or

holidays.” Specifically, the Plaintiffs claimed that

Delta violated § 25-3-3 1 by failing to pay them one

and one-half times their normal rate of pay (premium pay) for the hours they worked on Sundays and

holidays.

On May 9, 2012, Mary Ellen McQueeney Lally, a

DLT hearing officer (Hearing Officer), conducted a

hearing on the Plaintiffs’ claims against Delta. See

Ramirez v. R.I. Dep’t of Labor and Training, 2014

WL 4412618 (R.I. Super. Sept. 3, 2014). During such

hearing, Delta moved to dismiss the case as a matter

of law and asserted that requiring Delta to provide

its employees with premium pay for the hours that

they worked on Sundays and holidays is related to

Delta’s rates, routes, or services, and therefore triggers preemption under the ADA. 2 See id. The DLT

1 Section 25-3-3(a) requires that “[w]ork performed by employ-

ees on Sundays and holidays must be paid for at least one and

one-half (1 1/2) times the normal rate of pay for the work performed; provided: (1) that it is not grounds for discharge or other penalty upon any employee for refusing to work upon any

Sunday or holiday enumerated in this chapter[.]”Sec. 25-3-3(a).

2 The ADA was enacted by Congress “to encourage, develop,

and attain an air transportation system which relies on competitive market forces to determine the quality, variety, and

price of air services, and for other purposes.” See 49 USC §§

40101, et seq.

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issued six decisions 3 and found that requiring Delta

to provide the Plaintiffs with premium pay relates to

its prices, routes, and services. See id. The DLT explained that as a result, the ADA preempted the

Plaintiffs’ claims under § 25-3-3, and therefore, the

statute could not be applied against Delta. See id.

Accordingly, the DLT ruled that it was “preempted

from enforcing wage laws for airlines employees” and

that it had no jurisdiction to adjudicate the Plaintiffs’ claims. Id.

Thereafter, on June 15, 2012, the Plaintiffs timely

appealed 4 to the Superior Court. See id. at *2; see also § 42-35-15. In their appeal, the Plaintiffs asserted

that the DLT’s decision was affected by error of law

because it misconstrued the breadth of the ADA. See

Ramirez, 2014 WL 4412618 at *4. The Plaintiffs further claimed that Delta failed to produce any evidence to support the DLT’s conclusion that requiring

Delta to compensate its employees with premium

pay for hours worked on Sundays and holidays

would have a significant impact on its rates, routes,

and services, and therefore, such statutory require3 The DLT issued six separate decisions because, at that point

in time, the Plaintiffs each had filed a separate complaint with

the DLT; however, each of the Plaintiffs’ claims were indistinguishable in substance.

4 Plaintiffs originally filed separate appeals with the Superior

Court on June 15, 2012. Id. at *2. On September 18, 2012,

Plaintiffs filed a motion to consolidate their appeal because

each case presented identical legal issues. Id.; see Super. R.

Civ. P. 7(b)(3)(ii) (allowing for parties to submit a motion to

consolidate cases for trial). Both the DLT and Delta did not object to such request. On or about October 3, 2012, the Plaintiffs’

motion to consolidate PC-2012-3071, PC-2012-3072, PC-20123073, PC-2012-3074, and PC-2012-3076 was granted. See

Ramirez, 2014 WL 4412618 at *2.

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ment was not preempted by the ADA. See id. at *7.

In response, Delta asserted that the DLT properly

found that the Plaintiffs’ claims for premium pay

were preempted by the ADA. See id. As a result, Delta moved to dismiss the Plaintiffs’ claims. See id. at

*4.

On September 3, 2014, this Court issued a decision concluding that the DLT erred in dismissing the

Plaintiffs’ claims without the presentation of factual

evidence on the preemption issue. See id. at *8-9.

This Court remanded the matter to the DLT for a

further hearing and a finding of fact on the issue of

the effect of employee wages on Delta’s rates, routes,

and services. See id. at *9.

Consequently, on May 4, 2015, the parties went

before the DLT for the remanded hearing that was

ordered on this matter. See Department of Labor and

Training, Division of Labor Standards Claim No. LS

2011-396, September 1, 2015 decision at 2 (Decision).

During the hearing, Kelly Fredericks (Mr. Fredericks), President and CEO of the Rhode Island Airport Corporation (RIAC), and Sandra LaPlante (Ms.

LaPlante), station manager for Delta at TF Green,

testified on behalf of Delta. See id. Neither witness

qualified as an expert.

Mr. Fredericks testified that he was President and

CEO of the RIAC for two years, but had experience

in the aviation and transportation industry as a civil

engineer and as the chief operating officer of an international airport for approximately thirty-five

years. Tr. at 19-20, 21-22. Mr. Fredericks stated that

as President and CEO of RIAC, a critical component

of his job is attracting and maintaining air carrier

services at TF Green. Id. at 22-23. Mr. Fredericks

20a

testified that TF Green services eight airline carriers

and approximately 10,000 travelers per day, with

Sundays and holidays being some of its most important days. Id. at 20-21, 32-33. Mr. Fredericks further stated a statute that allows employees to either

refuse to work on Sundays and holidays without repercussions or receive premium pay for such hours,

could significantly impact the air carriers that service RIAC. Id. at 32-33. In addition, Mr. Fredericks

stated that the two main factors that influence

whether a carrier will locate in Rhode Island are cost

and demand. Id. at 24, 37, 40-45. When asked if additional labor costs in Rhode Island would make

RIAC less competitive in the market for air services,

Mr. Fredericks answered affirmatively. Tr. at 25-26.

Mr. Fredericks further claimed that increased costs

could make Rhode Island a less attractive site to airlines in general. Id. at 26-27. Specifically, Mr. Fredericks testified that increased labor costs “could lead

to reduction in service from a flight frequency opportunity,” and could “diminish[] [RIAC’s] competitive

advantage.” Id. at 31.

Ms. LaPlante testified that she has been Delta’s

station manager at TF Green for three years but has

worked for Delta for twenty years. Id. at 47-48. Ms.

LaPlante explained that as a station manager, her

job is to oversee day-to-day operations, perform administrative work, provide superior customer service, manage schedules, and lead a team of twentyfive employees. Id. at 49-50. Ms. LaPlante testified

that Sundays and holidays are extremely important

to Delta because it is open seven days per week and

operates approximately four to five flights on Sundays. Id. at 53-54. Ms. LaPlante also claimed that,

21a

as a station manager, she is responsible5 for managing the employee schedule to ensure that minimum

staff is available to operate Delta’s flights at TF

Green and is in charge of ensuring counter, gates,

and baggage staffing. Id. at 57, 59, 71-73. In addition, Ms. LaPlante explained that she is also responsible for allocating money for employee salaries and

benefits from the budget that she obtains from Delta’s corporate headquarters. Id. at 63. Ms. LaPlante

asserted that if Delta is required to pay premium

pay to its Rhode Island employees for the hours

worked on Sundays and holidays, that requirement

could impact or modify the services that Delta provides on such days. Id. at 61-63, 64. Additionally,

Ms. LaPlante stated that the increased cost could

likely cause airlines to reduce staff on Sundays and

holidays, making Delta less competitive. Id. at 63.

Based on the testimony given and the evidence

submitted, the DLT reasoned that “[a]n increase in

salaries would change [Delta’s] budget with the possibility that an adjustment in services or staffing

would have to be made.” See Decision at 4. In reaching its conclusion, the DLT reasoned that “the logical

effect[s] that … [§ 25-3-3] has on [Delta’s] delivery of

services or the setting of rates” is “sufficient even if

indirect.” Id. at 5 (internal citations omitted). The

DLT explained that Ms. LaPlante’s testimony, which

indicated that an increase in employees’ wages

would, in fact, affect Delta’s services, was both “persuasive” and from “a unique perspective.” Id. at 4.

5 Ms. LaPlante did acknowledge that she is not involved in the

following: deciding how many Delta flights arrive to, and depart from, TF Green; Delta’s minimum staffing levels; the rates

Delta charges for flights; the routes Delta flies; or the services

offered by Delta. Tr. at 57, 71-73.

22a

The DLT also noted that, although Mr. Fredericks’

testimony was not particular to Delta, it was “credible as pertaining to air carriers and supportive of the

points made by Ms. LaPlante.” Id. Therefore, the

DLT found that compensating employees with the

premium pay is related to Delta’s rates, routes, and

services, and, as a result, the ADA preempts § 25-33’s application against Delta. Id. at 5, 6.

Thereafter, on November 18, 2015, the Plaintiffs

again timely appealed the DLT’s Decision to this

Court. See Pls.’ Brief; see also § 42-35-15. In their

appeal, the Plaintiffs assert that the DLT committed

an error of law in finding that § 25-3-3 was preempted by the ADA because the possible increase in labor

costs posed by the Sunday and holiday premium pay

requirement is insufficient to trigger preemption.

See Pls.’ Brief at 7, 21. The Plaintiffs also assert that

even if the DLT did not commit error of law, the

DLT’s Decision is clearly erroneous because Delta

failed to prove, by reliable and substantial evidence,

that increased labor costs would have a significant

impact on its rates, routes, or services. See id. As a

result, the Plaintiffs contend that the Court should

reverse the DLT’s Decision and remand the case

solely for the purpose of calculating wages, penalties,

and attorney fees. See id. Conversely, Delta asserts

that the DLT did not commit an error of law because

§ 25-3-3 is a “blue law” that dictates how airline carriers, like DLT, can employ and, in and of itself, is

sufficient to trigger preemption. See Defs.’ Brief at 1,

5, 14. Delta further asserts that the DLT’s Decision

is not clearly erroneous because reliable and substantial evidence in the record proves that requiring

Delta to abide by § 25-3-3 would significantly impact

its rates, routes, and services. Id. at 10.

23a

II

Standard of Review

The Superior Court exercises jurisdiction over appeals from the DLT pursuant to § 42-35-15(g) of the

Rhode Island Administrative Procedures Act, which

provides as follows:

“The court shall not substitute its judgment for that

of the agency as to the weight of the evidence on

questions of fact. The court may affirm the decision

of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced

because the administrative findings, inferences, conclusions, or decisions are:

“(1) In violation of constitutional or statutory provisions;

“(2) In excess of the statutory authority of the agency;

“(3) Made upon unlawful procedure;

“(4) Affected by other error or law;

“(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;

or

“(6) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of discretion.” Sec. 42-35-15(g).

As a general rule, “[a]dministrative agencies retain broad enforcement discretion” and, thus, considerable deference is accorded to an agency’s decision. Arnold v. Lebel, 941 A.2d 813, 820 (R.I. 2007).

Such deference is additionally given to an agency’s

interpretation of a statute, whose administration

and enforcement has been entrusted to that agency.

24a

See In re Lallo, 768 A.2d 921, 926 (R.I. 2001) (stating

that an agency’s interpretation of its own statute or

regulations should be accorded “weight and deference as long as that construction is not clearly erroneous or unauthorized”) (internal citations omitted).

When considering questions of law, however, the

Court is not bound by the determination of the agency, but instead may be “freely reviewed to determine

the relevant law and its applicability to the facts

presented in the record.” State, Dep’t of Envtl. Mgmt.

v. State Labor Relations Bd., 799 A.2d 274, 277 (R.I.

2002). Therefore, “questions of law—including statutory interpretation—are reviewed de novo.” Iselin v.

Ret. Bd. of Emps’ Ret. Sys. of R.I., 943 A.2d 1045,

1049 (R.I. 2008).

Conversely, when considering questions of fact,

the Court “may not substitute its judgment for that

of the agency and must affirm the decision of the

agency unless its findings are ‘clearly erroneous.”’

Guarino v. Dep’t of Soc. Welfare, 410 A.2d 425, 428

(R.I. 1980) (citing § 42-35-15(g)(5)). Further, the

Court cannot “weigh the evidence [or] pass upon the

credibility of witnesses [or] substitute its findings of

fact for those made at the administrative level.” E.

Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 285,

373 A.2d 496, 501 (1977). Rather, § 42-35-15(g) limits the Court to an examination of the record in order

to ascertain whether the agency’s decision is supported by legally competent and substantial evidence. See Ctr. for Behavioral Health, R.I., Inc. v.

Barros, 710 A.2d 680, 684 (R.I. 1998); Kirby v. Planning Bd. of Review of Middletown, 634 A.2d 285, 290

(R.I. 1993). Legally competent evidence is such “relevant evidence that a reasonable mind might accept

as adequate to support a conclusion [and] means an

25a

amount more than a scintilla but less than a preponderance.” Town of Burrillville v. R.I. State Labor

Relations Bd., 921 A.2d 113, 118 (R.I. 2007).

III

Analysis

A

In their memorandum, the Plaintiffs argue that

the DLT’s Decision is affected by error of law, as the

ADA does not preempt § 25-3-3 because costs

alone—such as the costs imposed by § 25-3-3’s premium pay requirement—are insufficient to trigger

preemption. The Plaintiffs contend that the connection between a state law and an airline’s rates,

routes, or services cannot be de minimis, but instead,

must have a forbidden and significant impact on

rates, routes, or services. The Plaintiffs further assert that although the ADA may preempt some state

laws governing employer and employee relationships, it may not do so on the grounds of increased

labor costs alone. The Plaintiffs also allege that § 253-3 only affects labor costs because it merely dictates

how much money Delta is required to pay its workers—not how Delta is required to employ its workers. The Plaintiffs claim that, as a result, § 25-3-3

presents no significant impact on Delta’s rates,

routes, or services, and therefore, there is no justification to preempt its application. In addition, the

Plaintiffs suggest that if airlines, like Delta, were

permitted to invoke preemption based on costs alone,

such a finding would effectively exempt airlines from

state taxes, state lawsuits, and most other state regulations. The Plaintiffs conclude that § 25-3-3 is

therefore not preempted by the ADA, and thus, Del-

26a

ta is required to pay the Plaintiffs premium pay for

the hours they have worked, and continue to work,

on Sundays and holidays.

In its response brief, Delta avers that the DLT’s

Decision is not affected by error of law, as the Hearing Officer properly determined that § 25-3-3 is

preempted by the ADA. Delta insists that § 25-3-3 is

not a wage statute dictating the amount of money

employers are required to pay employees, but instead, is a “blue law” that dictates how employers

can employ. Specifically, Delta asserts that—unlike

wage laws that are intended to ensure a competitive

wage, encourage hiring, protect workers from harm,

and enforce suitable working hours—§ 25-3-3 is intended to only manage the days a business is open,

the number of employees it staffs and, thus, the services it provides. Delta claims that § 25-3-3 is therefore fundamentally different from the type of overtime and minimum wage laws that were found to be

precluded from ADA preemption. Delta additionally

contends that a law with the express purpose of discouraging employers from remaining open and, consequently, staffing employees on Sundays and holidays in order to promote a common day of rest and

relaxation for Rhode Island citizens works to unravel

the ADA’s objective, because it substitutes the competitive market forces proscribed by Congress for

those proscribed by the Rhode Island Legislature.

Delta asserts that this fact alone is sufficient to warrant ADA preemption because § 25-3-3, by its very

nature, regulates air carrier services rather than

permitting those services to be directed by market

forces, as the ADA requires. Delta concludes that §

25-3-3 is therefore undoubtedly related to the rates,

routes, and services of the airline, and is consequent-

27a

ly preempted by the ADA.

In 1978, Congress enacted the ADA in order to

promote the competitive market forces of air carriers

by guaranteeing the efficiency, innovation, low prices, variety, and quality of transportation. See 49

U.S.C. App. §§ 1302(a)(4), 1302(a)(9). By enacting

this federal regulation, Congress essentially deregulated domestic air transport. See id. To ensure that

both its purpose was achieved and “that the States

would not undo federal deregulation with regulation

of their own,” Congress included a preemption 6

clause within the ADA. Morales v. Trans World AirArticle VI, clause 2 of the United States Constitution, also

known as the Supremacy Clause, is the foundation of the federal preemption doctrine. See Verizon New England Inc. v. R.I.

Pub. Utils. Comm’n, 822 A.2d 187, 192 (R.I. 2003). Preemption

requires that “[w]here a state statute conflicts with, or frustrates, federal law, the former must give way.” CSX Transp.,

Inc. v. Easterwood, 507 U.S. 658, 663 (1993) (citing U.S. Const.,

art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 746 (1981)).

Therefore, in a preemption case, state law is displaced “to the

extent that it actually conflicts with federal law.” Pacific Gas &

Elec. Co. v. State Energy Res. Conservation and Dev. Comm’n,

461 U.S. 190, 204 (1983). To determine whether a federal regulation, such as the ADA, preempts a state statute, such as § 253-3, the Court must ascertain whether the ADA “expressly provide[s] that it shall supersede related state law[.]” Verizon New

England, 822 A.2d at 192. In making this determination, courts

are required to assume that a federal statute is not to supersede the police powers of a state unless it was Congress’ “clear

and manifest purpose” to do so. California v. ARC Am. Corp.,

490 U.S. 93, 101 (1989). As previously stated, the ADA expressly preempts states from enacting any law that relates to the

rates, routes, or services of an airline carrier. See 49 U.S.C.

App. § 1305(a)(1). Therefore, the ADA would preempt § 25-3-3

if this Court finds that § 25-3-3 relates to the rates, routes, or

services of an airline carrier. See id.; see also Verizon New England, 822 A.2d at 192; Pacific Gas & Elec. Co., 461 U.S. at 204.

6

28a

lines, Inc., 504 U.S. 374, 378 (1992). This preemption

clause 7 “prohibit[s] the States from enforcing any

law ‘relating to rates, routes, or services’ of any air

carrier.”’ Id. at 378-79 (citing 49 U.S.C. App. §

1305(a)(1); see Mass. Delivery Ass’n v. Coakley, 769

F.3d 11, 21-22 (1st Cir. 2014) (stating that the purpose of this preemption doctrine is to ensure that

states do not unravel Congress’ purposeful deregulation in this area). In Morales, the United States Supreme Court made it clear that the ADA’s preemption clause would have an expansive and broad interpretation. See 504 U.S. at 384. The Court went on

to explain, for instance, that a state law will be

found to relate to the rates, routes, or services of any

air carrier, and thus in violation of the ADA, if the

state law has any connection or reference thereto,

whether directly or indirectly. See id. at 385-86. In

addition, such relation can be found to be present

when the logical effects of a statute relates to the

rates, routes, or services of an air carrier. See id.; see

also Coakley, 769 F.3d at 22 (stating that the phrase

“related to” is purposefully expansive, and further

explaining that such a determination does not require a factual inquiry into the empirical effect of a

statute on a single employer in a particular situation, but instead, a reviewing court need only look at

the real and logical effects of the state statute); N.H.

Motor Transp. Ass’n v. Rowe, 448 F.3d 66, 82 n.14

(1st Cir. 2006) (agreeing with the district court that

“there is no such quantification requirement[,]” but

instead, “[t]he cases in this area have looked to the

7 Specifically, § 1305(a)(1) expressly preempts states from “en-

act[ing] or enforce[ing] any law, rule, regulation, standard or

other provision having force and effect of law relating to rates,

routes, or services of any carrier.” 49 U.S.C. App. § 1305(a)(1).

29a

logical effect that a particular scheme has on the delivery of services or the setting of rates and have not

required the presentation of empirical evidence”);

Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir.

2014) (stating that even a statute’s potential impact

on carrier’s prices, routes, and services can be sufficient). In applying this logic, the First Circuit found

that any state law which attempts to unravel Congress’ purposeful deregulation in the area of air

transport will also be preempted. Coakley, 769 F.3d

at 21-22. Therefore, a state law that tries to substitute its own policies for the competitive market forces explicitly protected by the ADA will be preempted.

Tobin v. Fed. Express Corp., 775 F.3d 448, 455 (1st

Cir. 2014).

Sunday closing laws were enacted to “set one day

apart from all others” in order to encourage “a day of

rest, repose, recreation and tranquility—a day which

all members of the family and community have the

opportunity to spend and enjoy together[.]”McGowan

v. Maryland, 366 U.S. 420, 450 (1961). 8 Therefore, in

order to embrace and effectuate the promotion of “a

common day of rest and recreation,” the Rhode Island Legislature enacted § 25-3-3, entitled Work on

8 Sunday restrictions were first called “blue laws”

during the

colonial period. Lesley Lawrence-Hammer, Red, White, but

Mostly Blue: The Validity of Modern Sunday Closing Laws (citing Under the Establishment Clause, 60 Vand. L. Rev. 1273,

1306 (2007); David N. Laband & Deborah Hendry Heinbuch,

Blue Laws: The History, Economics, and Politics of SundayClosing Laws 8 (1987)). Rhode Island’s “blue laws” were designed to promote a common day of rest and recreation for

Rhode Island citizens by discouraging employers from requiring

employment on Sundays and holidays. See Ramirez v. R.I. Dep’t

of Labor and Training, 2014 WL 4412618 at *6-7 (R.I. Super.

Sept. 3, 2014).

30a

Holidays and Sundays. City of Warwick v. Almac’s,

Inc., 442 A.2d 1265, 1270 (R.I. 1982); see Ramirez,

2014 WL 4412618 at *3 (stating that the purpose of §

25-3-3 is “to preserve the health, safety and welfare

of [Rhode Island] citizens”) (citing Dilloff, Never on

Sunday: The Blue Laws Controversy, 39 Md. L. Rev.

679 (1980)); see also Opinion Letter of the Rhode Island Office of the Attorney General, 1984 WL 62942

(R.I.A.G.) (recognizing that Rhode Island’s Sunday

closing law, § 25-3-3, was enacted to preserve the

health, safety, and welfare of citizens). To accomplish this purpose, § 25-3-3 encourages businesses to

remain closed on Sundays and holidays by forcing

employers to compensate their employees with premium pay for work performed on those days. See

Almac’s, 442 A.2d 1265; see also §§ 25-3-3(a), 25-33(a)(1). The statute does not offer employers any sort

of recourse, and, in fact, further provides that an

employee cannot be discharged, or otherwise penalized, for refusing to work on Sundays or holidays.

See § 25-3-3(a)(1).

Here, § 25-3-3’s clear and unambiguous statutory

purpose is to promote a common day of rest and recreation by regulating the workforce and incentivizing businesses to remain closed on Sundays and holidays. See Almac’s, 442 A.2d at 1270. Specifically, §

25-3-3 forces employers to pay a penalty if they

choose to remain open on Sundays and holidays, by

requiring them to compensate employees with premium pay for the hours worked on such days. See §

25-3-3. In dictating how employers can employ

workers, § 25-3-3 attempts to regulate the work force

on Sundays and holidays, which undoubtedly affects

the competitive market force of airlines. See Almac’s,

442 A.2d at 1270; see also Tobin, 775 F.3d 448 (ex-

31a

plaining that a state statute that tries to substitute

its own policies regarding the market place will be

preempted by the ADA in light of the protection provided by its preemption clause). As the United States

Supreme Court has made clear, a state law is

preempted by the ADA when it directly substitutes

the state’s own policies for competitive market forces. Tobin, 775 F.3d at 455. That effect is no different

if the state law provides an incentive to employers, a

penalty, or an absolute prohibition. See Tobin, 775

F.3d 448. On this basis alone, this Court finds that §

25-3-3 is preempted by the ADA and cannot be applied to air carriers like Delta. Furthermore, given

the expansive interpretation of the ADA, the logical

effects of § 25-3-3 would affect Delta’s rates, routes,

and services, as well as other air carriers servicing

RIAC. See DiFiore v. Am. Airlines, 646 F.3d 81, 88

(1st Cir. 2011) (considering the implementation of a

local statute on the industry as a whole, not just on

the individual defendant). For instance, requiring

Rhode Island air carriers to comply with § 25-3-3’s

premium pay provision would have a direct influence

on their decision-making process regarding discretionary services, customer interaction, and staffing.

See Tr. at 30-31; see also Morales, 504 U.S. at 384.

As a consequence, § 25-3-3 has a direct impact on,

and therefore relates to, the rates, routes, and services of Delta. See Morales, 504 U.S. at 385-86 (stating that a state law will be found to relate to the services of any air carrier if the law has any connection

or reference thereto, whether that connection be direct or indirect).

Consequently, in order to ensure that § 25-3-3

does not unravel Congress’ purposeful deregulation

of the airline industry, the statute must be found to

32a

be preempted by the ADA. See Coakley, 769 F.3d at

21-22 (to ensure that states do not unravel Congress’

purposeful deregulation in the airline industry, state

statutes that relate to the routes, rates, or services of

airlines are preempted by the ADA). Accordingly, the

Court finds that the DLT’s Decision is not controlled

by error of law because, as a matter of law, § 25-3-3

is preempted by the ADA. See § 42-35-15(g); see also

State, Dep’t of Envtl. Mgmt., 799 A.2d 274.

B

Substantial Impact on Rates, Routes, or Services

Even assuming, arguendo, that § 25-3-3 is a wage

law that solely dictates how much money employers

are required to pay employees, the statute would

still be preempted by the ADA if it has a substantial

impact on the rates, routes, or services of the airline

industry.

In their brief, the Plaintiffs seemingly contend

that the DLT’s Decision is clearly erroneous because

the record is devoid of competent evidence demonstrating that § 25-3-3’s premium pay requirement

has a substantial impact on Delta’s rates, routes, or

services. The Plaintiffs state that in order to be entitled to ADA preemption, Delta had to prove that the

increased costs required by § 25-3-3 has, or will

have, a substantial impact on its rates, routes, and

services—a burden which the Plaintiffs assert Delta

failed to meet. In order to meet this burden, the

Plaintiffs claim that Delta had to offer far more supporting facts and evidence than merely pointing to

the potential increased labor costs that § 25-3-3

would impose. The Plaintiffs claim that Delta could

33a

have demonstrated this supposed impact by providing adequate and specific facts showing the actual

amount that § 25-3-3 would have on Delta’s costs.

Instead of doing so, the Plaintiffs submit that Delta

tried to invoke preemption on its “own say so” by

simply presenting witnesses to testify that § 25-3-3

may lead to increased costs. The Plaintiffs assert

that Delta’s attempt ultimately failed because its

witnesses were not experts; did not point to exact,

conclusive evidence of the potential cost impact; did

not have firsthand knowledge of the potential impact; and, ultimately, made broad, generalized conclusions based on their opinions. The Plaintiffs further contend that, although the Hearing Officer

found Mr. Fredericks and Ms. LaPlante’s testimony

to be credible, credibility does not substitute for the

substantial evidence that was required for the DLT

to come to its Decision. Finally, although the Plaintiffs acknowledge that a statute’s potential impact on

a carrier’s costs may, at some point, be sufficient to

trigger preemption, without the requisite underlying

facts or data, there is no support for such a conclusion here. As a result, the Plaintiffs insist that the

DLT’s Decision is clearly erroneous as the record is

devoid of substantial, reliable, and probative evidence demonstrating the impact that § 25-3-3 would

have on Delta’s rates, routes, and services.

Conversely, Delta responds by claiming that the

record reflects that it did, in fact, produce ample,

credible evidence to demonstrate that compliance,

even with just the premium pay provision of § 25-33, logically relates to, and has a substantial impact

on, Delta’s services. Delta contends that empirical or

quantifying evidence is not needed in order to determine whether a law, rule, or regulation is related

34a

to the rates, routes, and services of an airline, but

instead, the reviewing court need only look at the

logical effects that a statute would have on the rates,

routes, or services of air carriers. Delta further asserts that such analysis “cannot be applied on a

piecemeal basis” to some, based on the potential effects on those specific employers, but not to others,

but must be “preempted as to all carriers or to none.”

Consequently, Delta claims that this Court may not

“engage in a case by case analysis” of each individual

airline and the specific effect that § 25-3-3 would

have on its operations, but instead, must ask whether compliance with § 25-3-3 would logically affect the

rates, routes, or services of any airline carrier. Delta

further argues that the record provides an abundance of legally competent evidence demonstrating

the resulting impact. In particular, Delta asserts

that both Mr. Fredericks and Ms. LaPlante testified

that Sundays and holidays are some of the busiest

times for airports, and maintaining adequate levels

of employees on these days is necessary to ensure

competitiveness in the marketplace. Delta further

argues that the testimony of Mr. Fredericks and Ms.

LaPlante demonstrates that Delta would be motivated to change its staffing decisions and, as a result,

alter the customer service it provides to passengers

at TF Green as a direct result of compliance with §

25-3-3. Delta explains that the record additionally

shows that the premium pay requirement could motivate Delta to utilize less staff on Sundays or altogether cease operating on Sundays—“exactly the result that the statute envisions.” As a result, Delta

asserts that since reducing staffing would logically

affect its routes and services, the DLT properly

found that the ADA preempts the application of § 25-

35a

3-3. Delta concludes that the DLT’s Decision was

based on witness testimony and the evidence before

it, which must be entitled deference and may not be

overturned by this Court unless clearly erroneous.

Here, the DLT accepted Mr. Fredericks and Ms.

LaPlante’s predictions regarding the effects that §

25-3-3 would have on Delta’s rates, routes, and services as credible, and favorably noted their demeanor and forthright answers. The DLT further explained that Ms. LaPlante’s testimony—which indicated that an increase in employees’ wages would, in

fact, affect Delta’s services—was both “persuasive”

and from “a unique perspective.” Id. In addition, the

DLT noted that although Mr. Fredericks’ testimony

was not particular to Delta, it was “credible as pertaining to air carriers and supportive of the points

made by Ms. LaPlante.” Id. In deciding issues of fact,

the Court may not weigh the evidence of the administrative record, pass upon the credibility of witnesses, or substitute its findings of fact for those made by

the DLT. See E. Grossman & Sons, Inc., 118 R.I. at

285, 373 A.2d at 501. Rather, the Court’s review is

limited “to an examination of the certified record” in

order to ascertain whether the DLT’s Decision is

supported by substantial evidence. See Ctr. for Behavioral Health, R.I., Inc., 710 A.2d at 684. The record shows that Mr. Fredericks had personal

knowledge regarding the factors involved in attracting and maintaining air carrier services in Rhode Island and explained that the two main considerations

are cost and demand. Tr. at 22-23, 24, 37, 40-45. Mr.

Fredericks further emphasized that Sundays and

holidays are important days for RIAC and claimed

that a statute which allows employees to either refuse to work on Sundays and holidays or receive

36a

premium pay, could significantly impact the air carriers servicing RIAC. Tr. at 30-33. Mr. Fredericks

also asserted that additional labor costs in Rhode Island would make RIAC less competitive in the market for air services. Tr. at 25-26. Specifically, Mr.

Fredericks testified that increased labor costs “could

lead to reduction in service from a flight frequency

opportunity,” and could “diminish[] [RIAC’s] competitive advantage.” Tr. at 31. The record demonstrates

that, similarly, Ms. LaPlante had personal, more

specific, knowledge regarding Delta’s day-to-day operations at TF Green. Tr. at 49-50. Similar to Mr.

Fredericks, Ms. LaPlante claimed that Sundays and

holidays are extremely important to Delta. Tr. at 53.

Ms. LaPlante asserted that— as someone who is responsible for allocating money for employee salaries—if Delta is required to provide premium pay to

its Rhode Island employees for the hours worked on

Sundays and holidays, that requirement could impact the services that Delta provides on such days.

Tr. at 57, 61-63, 64. Ms. LaPlante also stated that

the increased costs might cause Delta to reduce staff

on Sundays and holidays and, as a result, become

less competitive. Tr. at 63-64.

Based on the record before it, the Court finds that

the DLT’s Decision is not clearly erroneous, but is

supported by adequate and legally competent evidence. Accordingly, the Court affirms the DLT’s Decision. See Ctr. for Behavioral Health, R.I., Inc., 710

A.2d at 684.

IV

Conclusion

After review of the entire record, this Court finds

37a

that the DLT’s Decision was neither affected by error

of law nor clearly erroneous. See § 42-35-15(g)(4) and

(5). The Plaintiffs’ substantial rights were not prejudiced. Accordingly, the Court affirms the DLT’s Decision.

Counsel shall submit the appropriate judgment

for entry.

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APPENDIX C

Superior Court of Rhode Island

Providence County

Kelvin RAMIREZ,

v.

RHODE ISLAND DEPARTMENT OF LABOR

AND TRAINING.

No. PC20123071.

September 3, 2014.

Decision

MCGUIRL, J. Before this Court are six consolidated appeals from decisions of the Rhode Island

Department of Labor and Training 1 (DLT), in which

the DLT issued decisions determining that the Director of the DLT could not exercise jurisdiction over

the disputes due to federal preemption under the

Airline Deregulation Act of 1978 (ADA). 49 U.S.C.

app. §§ 1301, et seq. Jurisdiction is pursuant to G.L.

1956 § 42-35-15. For the reasons set forth in this Decision, this Court reverses the decisions of the DLT

and remands them to the DLT for findings of fact.

I

Facts and Travel

The Petitioners in this matter were employees of

Delta Airlines, Inc. (Delta), at Delta’s facility at the

1 Plaintiffs filed a motion to consolidate on September 18, 2012

and Defendant did not object. Thereafter, Judge Matos granted

Plaintiffs’ motion to consolidate matters PC-2012-3071, PC2012-3072, PC-2012-3073, PC-2012-3074, PC-2012-3075, and

PC-2012-3076.

39a

T.F. Green Airport in Warwick, Rhode Island. The

Petitioners filed Complaints with the DLT between

September 6 and September 13, 2011, alleging that

Delta had violated the provisions of G.L. 1956 § 25-33, “Work on Sundays or holidays.” Specifically, the

Petitioners assert that Delta violated § 25-3-3 by

failing to pay Petitioners one and one-half times

their normal rate of pay for work performed on Sundays and holidays.

The DLT held a hearing on these matters before

Hearing Officer Ellen McQueeney Lally (Hearing Officer) on May 9, 2012. During that hearing, Delta asserted that all complaints should be dismissed because § 25-3-3 was preempted by the ADA, 49 U.S.C.

§ 40101(a)(12). 2 On May 18, 2012, the Hearing Officer issued decisions for each Petitioner’s claim. 3

The Hearing Officer, DLT Director’s designee, declared that § 25-3-3 could not be applied against Delta. (Hearing Officer’s Decision at 3.) Specifically, the

Hearing Officer explained that the wages of airline

employees are related to prices, routes, and services

within the meaning of the ADA. Id. Accordingly, the

Hearing Officer held that the DLT was “preempted

from enforcing wage laws for airline employees” and

that the DLT had no jurisdiction to adjudicate the

Petitioners’ claims. Id.

Thereafter, Petitioners filed timely appeals pur2 At the hearing, the Hearing Officer addressed the Petitioners

and stated that “[Delta’s Counsel] [had] submitted to the DLT,

a letter along with some case law alleging or indicating that he

believes that this matter is something that state law cannot

impact.” (Hr’g Tr. at 3.)

3 The DLT issued six separate decisions; however, the decisions

were indistinguishable in substance—the only difference being

the date that each complaint was originally filed.

40a

suant to § 42-35-15. The Petitioners moved to consolidate their appeals into one action because each case

presented identical legal issues. See Super. R. Civ. P.

7(b)(3)(ii). The DLT and Delta did not object to consolidation, and the motion was granted by this Court

on or about October 3, 2012. The parties submitted

memoranda. Following a chamber pretrial conference on July 30, 2013, this Court requested briefing

from both parties regarding Petitioners’ demand that

the Court disregard an Affidavit submitted by Delta

as an exhibit to its Memorandum of Law filed February 25, 2013. 4 Thereafter, Delta requested that

this Court allow it to withdraw the Affidavit as an

exhibit on August 7, 2013. The Petitioners filed a response to Delta’s Motion to Withdraw Exhibit on

August 16, 2013. 5

II

Standard of Review

This Court’s review on appeal from a decision of

an administrative agency is governed by the Rhode

Island Administrative Procedure Act, §§ 42-35-1, et

seq. See Rossi v. Employees’ Retirement Sys. of R.I.,

895 A.2d 106, 109 (R.I. 2006). This Court may reverse, modify, or remand an agency’s decision if

“substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

Affiant is Vincent Joshua Maxwell, the Airport Customer

Service Time and Attendance Manager for Delta.

5 Substantively, Petitioners assert that this Court cannot consider the Affidavit because the Affidavit was not submitted at

the hearing before the DLT, was not part of the certified administrative record, and constitutes inadmissible hearsay.

4

41a

“(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error or law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;

or

(6) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of discretion.” Sec. § 42-35-15(g).

This Court’s review of an agency decision is, in essence, “an extension of the administrative process.”

R.I. Pub. Telecomms. Auth. v. R.I. State Labor Relations Bd., 650 A.2d 479, 484 (R.I. 1994).

In reviewing an agency decision, this Court “shall

not substitute its judgment for that of the agency as

to the weight of the evidence on questions of fact.”

Sec. 42-35-15(g). This Court will defer to an agency’s

factual determinations so long as they are supported

by legally competent evidence. Town of Burrillville v.

R.I. State Labor Relations Bd., 921 A.2d 113, 118

(R.I. 2007). Our Supreme Court has defined legally

competent evidence as “some or any evidence supporting the agency’s findings.” Auto Body Ass’n of

R.I. v. State of R.I. Dep’t of Bus. Regulation, 996 A.2d

91, 95 (R.I. 2010) (citation omitted). “[I]f ‘competent

evidence exists in the record, [this] Court is required

to uphold the agency’s conclusions.”’ Auto Body

Ass’n, 996 A.2d at 95 (quoting R.I. Pub. Telecomms.

Auth., 650 A.2d at 485).

However, a judicial officer may reverse such find-

42a

ings in instances wherein the conclusions and the

findings of fact are “totally devoid of competent evidentiary support in the record,” Milardo v. Coastal

Res. Mgmt. Council, 434 A.2d 266, 272 (R.I. 1981), or

from the reasonable inferences that might be drawn

from such evidence. Guarino v. Dep’t of Soc. Welfare,

122 R.I. 583, 588–89, 410 A.2d 425, 428 (1980). “An

administrative decision which fails to include findings of fact required by statute cannot be upheld.

Sakonnet Rogers, Inc. v. Coastal Res. Mgmt. Council,

536 A.2d 893 (1988). A Superior Court justice has

some discretion in fashioning a remedy when hearing an appeal from agency decision. Birchwood Realty, Inc. v. Grant, 627 A.2d 827 (1993). A reviewing

court will neither search record for supporting evidence nor will it decide for itself what is proper in

the circumstances, but will either order hearing de

novo or remand in order to afford agency an opportunity to clarify and complete its decision. Hooper v.

Goldstein, 104 R.I. 32, 241 A.2d 809 (1968). Under

the Administrative Procedure Act, the Superior

Court has authority to remand for taking of further

evidence. Lemoine v. Dep’t of Mental Health, Retardation and Hospitals, 113 R.I. 285, 320 A.2d 611

(1974).

In contrast to its review of findings of facts, this

Court reviews agency determinations of law de novo.

Arnold v. R.I. Dep’t of Labor and Training Bd. of Review, 822 A.2d 164, 167 (R.I. 2003). In general, this

Court will accord deference to an agency’s interpretation of ”’a statute whose administration and enforcement have been entrusted to the agency.”’ Town

of Richmond v. R.I. Dep’t of Envtl. Mgmt., 941 A.2d

151, 157 (R.I. 2008) (quoting Murray v. McWalters,

868 A.2d 659, 662 (R.I. 2005)). However, “[d]eference

43a

is not owed when the agency has completely failed to

address some factor [,] consideration of which[,] was

essential to [making an] informed decision.” See

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,

422 F.3d 782, 798 (9th Cir. 2005).

III

Background of § 25-3-3

Section 25-3-3, like other Sunday closing laws6,

was enacted pursuant to the “police power to preserve the health, safety and welfare of its citizens.”

Dilloff, Never on Sunday: The Blue Laws Controversy, 39 Md. L. Rev. 679 (1980). 7 In City of Warwick v.

Almacs, 442 A.2d 1265, 1270 (R.I. 1982), the Rhode

Island Supreme Court concluded that “the clear objective of Rhode Island’s closing law is to promote a

common day of rest and recreation.” This decision

embraces the United States Supreme Court’s view

that Sunday closing laws serve clearly secular purposes: “set[ting] one day apart from all others as a

day of rest, repose, recreation and tranquility—a day

which all members of the family and community

have the opportunity to spend and enjoy together.”

McGowan v. Maryland, 366 U.S. 420 (1961). The

6 Sunday restrictions were first called “blue laws”

during the

colonial period. Lesley Lawrence-Hammer, Red, White, but

Mostly Blue: The Validity of Modern Sunday Closing Laws (citing Under the Establishment Clause, 60 Vand. L. Rev. 1273,

1306 (2007); David N. Laband & Deborah Hendry Heinbuch,

Blue Laws: The History, Economics, and Politics of SundayClosing Laws 8 (1987)).

7 “These statutes are an ancient institution in American law …

[;] [however,] they are embattled by widespread efforts to repeal or invalidate them or to avoid their application, often initiated by large retail corporations.” 10 ALR 4th 246 (originally

published in 1981).

44a

Rhode Island legislature effectuated this purpose, in

part, by drafting § 25-3-3(a) 8, which requires employers to pay their employees at least one and onehalf times their normal rate of pay for work conducted on Sundays and holidays. The legislature further

realized their goal of promoting a common day of

rest and recreation by drafting and passing § 25-33(a)(1) 9, which provides that an employee cannot be

discharged or otherwise penalized for refusing to

work on Sundays or holidays enumerated within

Chapter 25. 10

IV

DLT’s Decisions

In 1978, Congress enacted the ADA. 49 U.S.C.

app. §§ 1302(a)(4), 1302(a)(9). The ADA essentially

deregulated domestic air transport in order “[t]o ensure that the States would not undo federal deregulation with regulations of their own.” Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 378 (1992).

In addition, the ADA included a preemption clause

which read in relevant part: “[N]o State … shall enact or enforce any law, rule, regulation, standard, or

other provision having the force and effect of law relating to rates, routes, or services of any air carrier

8 “Work performed by employees on Sundays and holidays must

be paid for at least one and one-half (1 1/2) times the normal

rate of pay for the work performed ....” Sec. 25-3-3(a).

9 “… [I]t is not grounds for discharge or other penalty upon any

employee for refusing to work upon any Sunday or holiday

enumerated in this chapter… .” Sec. 25-3-3(a)(1).

10 Holidays include Sunday, New Year’s Day, Dr. Martin Luther King, Jr.’s Birthday, Memorial Day, Fourth of July, Victory Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving, and Christmas.

45a

… .” 49 U.S.C. app. § 1305(a)(1). Reenacting Title 49

of the U.S. Code in 1994, Congress revised this

clause to read: “[A] State … may not enact or enforce

a law, regulation, or other provision having the force

and effect of law related to a price, route, or service

of an air carrier ....” Sec. 41713(b)(1). 11 In the instant

matter, the DLT found that the wages of airline employees were related to prices, routes, and services

as contemplated by the language of the ADA. (Hearing Officer’s Decision at 3.) The Hearing Officer determined that it was unnecessary to take testimony

or receive evidence because the issue was a question

of law. 12 The DLT, therefore, declared that it was

without jurisdiction to adjudicate the claims and

dismissed each claim.

VI

Preemption

On appeal, Petitioners assert that the DLT’s decisions were affected by error of law. Specifically, the

Petitioners maintain that the ADA does not preempt

§ 25-3-3. In response, Delta and the DLT aver that

the Hearing Officer properly determined that § 25-33 is preempted by the ADA. The Hearing Officer’s

decisions were based on the federal preemption doctrine.

The foundation of the federal preemption doctrine

Congress intended the revision to make no substantive

change. Pub. L. No. 103-272, § 1(a), 108 Stat. 745.

12 This Court must determine whether the instant matter involves a question of pure law or mixed questions of law and

fact. Specifically, this Court must examine whether the record

from the DLT’s May 9, 2012 hearing is sufficient to determine

the issues presented by this controversy.

11

46a

is Article VI, Clause 2 of the United States Constitution, the Supremacy Clause. Verizon New England

Inc. V. Rhode Island Pub. Utils. Comm’n, 822 A.2d

187, 192 (R.I. 2003). Preemption means that

“[w]here a state status conflicts with, or frustrates,

federal law, the former must give way.” CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993)

(citing U.S. CONST., art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). There are three

main categories of federal preemption. Verizon New

England Inc., 822 A.2d 187 at 192 (citing Shaw v.

Delta Airlines, Inc., 463 U.S. 85, 95-96 (1983)). The

first, “express preemption,” exists when a federal

statute “expressly provide[s] that it shall supersede

related state law,” and that the state law in question

“falls within the class of law that Congress intended

to preempt.” Id. (citing Gade v. Nat’l Solid Wastes

Mgmt. Ass’n, 505 U.S. 88, 95-97 (1992)). The second,

“conflict preemption,” exists “when compliance with

both federal and state regulations is a physical impossibility [and] when under the circumstances of a

particular case, [the state law] stands as an obstacle

to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 142-43 (1963); Crosby v. Nat’l Foreign Trade

Council, 530 U.S. 363, 373 (2000) (internal quotations omitted)). The third, “field preemption,” exists

if Congress implemented a comprehensive regulatory framework, thereby indicating that its intention

to reserve the area solely for federal control. Id.

Field preemption renders any state regulation in

that same field invalid. Id.

This Court finds that express preemption applies

to these particular circumstances. To determine

47a

whether the ADA expressly preempts § 25-3-3, the

Court must ascertain whether the ADA “expressly

provide[s] that it shall supersede related state law”

in the first place. Verizon New England Inc., 822

A.2d at 192. In preemption cases, courts “start with

the assumption that the historic police powers of the

States were not to be superseded” by a federal statute unless it was the “clear and manifest purpose of

Congress” to do so. California v. ARC Am. Corp., 490

U.S. 93, 101 (1989). The Court presumes that “Congress does not cavalierly pre-empt” state law, Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996), particularly when Congress passes a statute “in a field

which the States have traditionally occupied.” Id.

(quoting Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947) (internal quotations omitted)). “If the

statute contains an express pre-emption clause, the

task of statutory construction must in the first instance focus on the plain wording of the clause,

which necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc., 507

U.S. at 664.

In 1978, Congress determined that “maximum reliance on competitive market forces” would best further “efficiency, innovation, and low prices” as well

as “variety [and] quality … of air transportation services,” and enacted the ADA. 49 U.S.C. app. §§

1302(a)(4), 1302(a)(9). “To ensure that the States

would not undo federal deregulation with regulation

of their own, the ADA included a pre-emption provision, prohibiting the States from enforcing any law

‘relating to rates, routes, or services’ of any air carrier.” Morales, 504 U.S. at 378-79 (citing 49 U.S.C.

app. § 1305(a)(1)). Section 1305(a)(1) expressly

preempts the States from “enact[ing] or enforce[ing]

48a

any law, rule, regulation, standard, or other provision having force and effect of law relating to rates,

routes, or services of any carrier ....” “For purposes of

the present case[s], the key phrase, obviously, is ‘relating to.”’ Id. at 383; see Black’s Law Dictionary

1158 (5th ed. 1979) (“[T]o stand in some relation; to

have bearing or concern; to pertain; refer; to bring

into association with or connection with”). “The ordinary meaning of these words is a broad one … and

the words thus express a broad pre-emptive purpose.” See Morales, 504 U.S. at 383-84; see also Am.

Airlines, Inc. v. Wolens, 513 U.S. 219 (1995); Rowe v.

New Hampshire Motor Transport Ass’n, 552 U.S. 364

(2008).

In Morales, the United States Supreme Court likened the language of § 1305(a)(1)’s express preemption clause to a similar express preemption provision

contained in the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1144(a), which

preempts all state laws “insofar as they … relate to

any employee benefit plan.” 504 U.S. at 384. 13 (Emphasis added.) For example, the United State Supreme Court held that the “breadth of [ERISA’s express preemption clause’s] reach is apparent from

[its] language.” See id. at 384 (quoting Shaw, 463

U.S. at 95-96); see also Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 739 (1985) (commenting on the “broad scope” of ERISA’s express preemption provision); Pilot Life Ins. Co. v. Dedeaux, 481

U.S. 41, 47 (1987) (finding that the language of

13 In the FAAA Act’s legislative history, Congress endorsed the

“broad preemption interpretation” adopted by the Court in Morales. See H.R. Conf. Rep. 103-677, at 83 (1994), reprinted in

1994 U.S.C.C.A.N. at 1755.

49a

ERISA’s express preemption clause gives the clause

an “expansive sweep” and was “deliberately expansive”). Accordingly, the United State Supreme Court

adopted an expansive interpretation of the ADA’s

express preemption clause because the relevant language of ERISA’s express preemption clause was

identical: “[S]tate enforcement actions having a connection or reference to airline ‘rates, routes, or services’ are pre-empted under 49 U.S.C. app. §

1305(a)(1).” Morales, 504 U.S. at 384. Specifically,

the Court held that a state law may “relate to the

ADA, and therefore run afoul of the ADA’s preemption clause, even though such law has only an indirect effect on the rates, routes, or services of an air

carrier.” See id. at 385-86. However, the Court

acknowledged that some state action that may affect

an air carrier’s fares is “too tenuous, remote, or peripheral a manner” to have preemptive effect. Id. at

390. Moreover, Morales, “express[ed] no views about

where it would be appropriate to draw the line.” Id.

The United States Supreme Court revisited the

issue of where to draw the line in interpreting the

ADA’s preemptive scope in Wolens. The majority

held that state action was preempted to the extent

that it imposed its substantive standards on the

prices, routes, or services of an air carrier and rejected an interpretation of the ADA’s preemption language, limiting preemption to state enactments focusing solely on airlines. Wolens, 513 U.S. at 227232; see also Morales, 504 U.S. at 386; Rowe, 552

U.S. at 373-76 (rejecting confining preemption to

state laws that are aimed at economic regulation as

opposed to other state interests). The state laws

preempted in Morales, Wolens, and Rowe involved,

respectively, deceptive advertising, alleged consumer

50a

abuse, and protection of health. Specifically, “[t]he

state regimes at issue in Morales and Wolens, although based on generally applicable statutes, involved detailed guidelines crafted by state authorities directed against airlines; the statute in Rowe directly targeted carriers.” DiFiore v. Am. Airlines,

Inc., 646 F.3d 81, 87 (2011).

With respect to a wage-related state law facing

preemption by the ADA, the First Circuit held that

the ADA preempted a Massachusetts tips law, which

set forth that no employer or other person shall demand or accept from any service employee any payment or deduction from a tip or service charge given

to such service employee by a patron. DiFiore, 646

F.3d at 87; 49 U.S.C.A. § 41713(b)(1); M.G.L.A. ch.

149, § 152A(b)(f). In doing so, the Court explained

that the State law directly “related to” how airline

services were performed because it attempted to

prohibit airlines from instituting a two dollar service

charge for bags checked at the airport’s curb. However, the First Circuit also referred to a case “declining to preempt [a] state prevailing wage law.” Id.

(citing Californians for Safe and Competitive Dump

Truck Transp. v. Mendonca, 152 F.3d 1184, 1189

(9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999))

(holding that California’s Prevailing Wage Law

(CPWL) was not “related to” motor carrier enterprises’ prices, routes, and services within meaning of

preemption clause of Federal Aviation Administration Authorization Act, and thus the prevailing wage

law was not preempted). The First Circuit stated

that “the Supreme Court would be unlikely—with

some possible qualifications—to free airlines … from

prevailing wage laws ....” DiFiore, 646 F.3d at 87.

However, “such measures must impact airline opera-

51a

tions—and so, indirectly, may affect fares and services.” Id.

The tips law can be distinguished from the prevailing wage laws because “the tips law does more

than simply regulate the employment relationship …

[;] the tips law had a direct connection to air carrier

prices and services and can fairly be said to regulate

both.” Id. Specifically, “the airline’s ‘price’ includes

charges for such ancillary services as well as the

flight itself.” Id. For example, “[t]o avoid having a

state law deem the curbside check-in fee a ‘service

charge’ would require changes in the way the service

is provided or advertised.” Id. at 88. However, the

court did not find that state regulation is preempted

wherever it imposes costs on airlines and therefore

affects fares because costs “must be made up elsewhere, i.e., other prices raised or charges imposed.”

Id. at 89.

In particular, 49 U.S.C.A. § 41713(b)(1), in pertinent part, provides that “a State … may not enact or

enforce a law, regulation, or other provision having

the force and effect of law related to a price, route, or

service of an air carrier ....” (Emphasis added.). However, the ADA does not preempt any state regulation

that affects fares, regardless of the remoteness of the

state regulation to the transportation functions protected by the ADA. See Thompson v. U.S. Airways,

Inc., 717 F. Supp. 2d 468, 477-79 (E.D. Pa. 2010) (the

ADA does not preempt all state employment claims

against airlines). 14

14 In Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 85 (2d

Cir. 1997), Delta argued that the ADA preempted plaintiffs’

claims because “there [was] a direct relationship between the

relief sought and Delta’s prices.” The Court discussed that air

52a

Whether a law is related to prices, routes, or services includes questions of fact; namely, the degree

to which wages relate to an air carrier’s prices,

routes, and services. In reviewing the administrative

record, however, this Court finds no determination

was made as to what effect enforcing § 25-3-3(a)

would have on Delta’s prices or how implementing §

25-3-3(a) relates to an air carrier’s ability to control

its prices, routes, and services. See Sakonnet Rogers,

Inc., 536 A.2d at 896 (an administrative decision

that fails to include findings of fact required by statute cannot be upheld). Here, the Hearing Officer

viewed the question of preemption to be a question of

pure law. (Hr’g Tr. at 3); (Hearing Officer’s Decision

at 3.) However, to ascertain whether or not § 25-33(a) is preempted by the ADA, the Hearing Officer

would have had to adduce some evidence that Delta

employees’ wages were related to Delta’s rates,

routes, or services. See Hooper, 104 R.I. at 44-45, 241

A.2d at 815-16 (holding that a Rhode Island court

will not search the record for supporting evidence or

decide for itself what is proper, but instead either

carriers are not sensitive to ordinary pricing structures; rather

than being propelled by cost-plus bases, air transportation

prices are pushed principally by “yield management systems.”

Id. “Yield management systems are designed to schedule flights

at the maximum capacity possible.” Aubrey B. Colvard, Trying

to Squeeze into the Middle Seat: Application of the Airline Deregulation Act’s Preemption Provision to Internet Travel Agencies, 75 J. Air L. & Com. 705, 725 (2010). Essentially, a yield

management system is a unique formula that is mainly controlled by forces of demand and competition, rather than costs.

See id. “Thus, because air carrier prices are not driven by common cost bases, things that may appear to affect air carrier

prices for the purpose of ADA preemption may in fact only have

an insignificant effect.” Id.

53a

order a hearing de novo or remand in order to afford

the board an opportunity to clarify or complete its

decision).

The Hearing Officer’s decisions effectively found

that every state statute that can be tied to an air

carrier’s prices, routes, or services through the use of

logic is preempted. See Hearing Officer’s Decision at

3 (“[t]hese cases convince me that the wages of airline employees come within the sweep of the ‘related

to price, route, or service of an air carrier’ language

of the ADA”). However, the United States Supreme

Court has never explicitly held that a state’s employee compensation statute is preempted by the

ADA. See Gennell v. FedEx Ground Package Sys.,

Inc., 05-CV-145-PB, 2013 WL 4854362 (D.N.H. Sept.

10, 2013). More recent decisions from the Massachusetts Federal District Court have “expressed skepticism at preemption claims that seek to invalidate …

[state] wage and hour laws.” Massachusetts Delivery

Ass’n v. Coakley, CIV-A 10-11521-DJC, 2013 WL

5441726 (D. Mass. Sept. 26, 2013) (citing Martins v.

3PD, Inc., No. 11–11313, 2013 WL 1320454, at 12

(D. Mass. Apr. 4, 2013)); see also Schwann v. FedEx

Ground Package Sys., Inc., CIV-A 11-11094-RGS,

2013 WL 3353776 (D. Mass. July 3, 2013) (stating

that wage laws may affect price, routes, and services, but that their effect is too “remote”).

The indirect economic impact of a state law of

general applicability is exactly the tenuous causeand-effect relationship that the First Circuit held

would not trigger preemption. See DiFiore, 646 F.3d

at 87. This Court agrees that such a categorical approach is inappropriate and that Delta has failed to

demonstrate the effect of § 25-3-3(a) on its prices,

routes, or services. See Schwann, 2013 WL 3353776,

54a

at *4; see also McGuire v. Reilly, 386 F.3d 45, 57 (1st

Cir. 2004) (discussing standard for facial invalidity).

The ADA’s preemption provision does not have “infinite reach.” Martins, 2013 WL1320454, at *12. That

a regulation on wages has the potential to impact

costs and therefore prices is insufficient to implicate

preemption. See DiFiore, 646 F.3d at 89; see also

S.C. Johnson & Son, Inc. v. Transp. Corp. of Am.,

Inc., 697 F.3d 544, 559 (7th Cir. 2012) (“It is important in this connection to consider whether enforcement of a state law has a generalized effect on

transactions in the economy as a whole, or if it affects only particular arrangements.”). Those courts

that have found that the ADA preempts state and

local regulation of the employment relationship have

done so on an “as-applied” basis. See, e.g., Sanchez,

2013 WL 1395733, at *13 (considering statute’s effect on defendant in isolation).

The Petitioners, Delta, and the DLT heavily rely

on DiFiore. However, unlike the Massachusetts tips

law that was at issue in DiFiore, the “Work on Sundays and holidays” statute, in relevant part § 25-33(a), a direct connection to Delta’s prices, routes, or

services has not been shown by Delta. Delta produced no evidence to establish the required relationship between its prices, routes, or services and the

Plaintiffs’ claims. Thus, the Hearing Officer needed

to hear, review, and weigh evidence that Plaintiffs’

claims have a sufficient connection to its prices,

routes, or services to warrant their preemption.

With respect to the effect an employees’ right to

refuse work on Sundays and holidays would have on

Delta’s ability to control its prices, routes, and services, Petitioners’ have asked this Court to disregard

an Affidavit submitted by Delta. (Delta’s Aff.). Delta

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requested that this Court allow it to withdraw the

Affidavit as an exhibit on August 7, 2013. Petitioners

filed a response to Delta’s motion to withdraw on

August 16, 2013, asserting that this Court could not

consider the material because the Affidavit was not

submitted at the hearing before the DLT, was not

part of the certified administrative record, and constitutes inadmissible hearsay. 15

15 Section 42-35-15, in pertinent part, provides that review is

limited to the record before the agency. However, § 42-35-15

provides two instances when the review may include evidence

not in the record. Section (e) of said provision notes that:

(e) If, before the date set for the hearing, application is made

to the court for leave to present additional evidence, and it is

shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure

to present it in the proceeding before the agency, the court may

order that the additional evidence be taken before the agency

upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new

findings, or decisions with the reviewing court.

Section (f) of § 42-35-15 permits:

[i]n cases of alleged irregularities in procedure before the

agency, not shown in the record, proof thereon may be taken in

the court. The court, upon request, shall hear oral argument

and receive written briefs.

Also, under the Federal Administrative Procedures Act

(APA), other courts have allowed supplementation of the record

where there is a failure to explain administrative action. See

Sierra Club v. Marsh, 976 F.2d 763, 772 (1st Cir. 1992) (citation omitted). Thus, though § 42-35-15 states that this Court’s

review of an administrative decision is “confined to the record”

— see Nickerson v. Reitsma, 853 A.2d 1202, 1206 (R.I. 2004)

(trial justice exceeded his authority under the APA by considering evidence outside the certified agency record including testimony about events that took place after the administrative

hearing)—this rule is not an absolute bar on this Court’s ability

to take notice of certain relevant materials. But see 73A C.J.S.

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Delta’s Affidavit is immaterial to the present controversy. The instant case does not involve Delta

employees’ right to refuse work on Sundays and holidays, but whether Delta employees are entitled to

receive time-and-one-half rate of pay for Sunday and

holiday work. The Affidavit at issue concerns the

negative consequences that Delta would experience

as a result of its employees being able to refuse work

on Sundays and holidays. It does not provide this

Court with any facts relevant to the effect a wage increase for Delta employees on Sundays and holidays

would have on Delta’s “price[s], route[s], or service

[s].” See 49 U.S.C.A. § 41713.

Here, whether the wage of an employee is related

to an air carrier’s prices, routes, and services is at

issue. The establishment of such a connection includes questions of fact. See Le Blanc v. Balon, 104

R.I. 517, 247 A.2d 92, 93 (1968) (finding in the context of a workmen’s compensation case that the determination of who is a motor vehicle “helper” within

the meaning of the Fair Labor Standards Act is a

question of fact). For example, in making her decision, the Hearing Officer stated, “[t]hese cases convince me that the wages of airline employees come

within the sweep of the ‘related to a price, route or

service of an air carrier’ language of the ADA.”

(Hearing Officer’s Decision at 3.) The Hearing Officer’s decision makes clear that she considered only

relevant case law when she made her decision. See

Sakonnet Rogers, Inc., 536 A.2d at 893 (an adminisPublic Administrative Law And Procedure § 407 (2012) (“Usually, a court trying the issues de novo may receive and consider

evidence other than that offered before the administrative

body.”).

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trative decision which fails to include findings of fact

required by statute cannot be upheld, § 42-3515(g)(6)). Whether the wages of air carrier employees

come “within the sweep” of the ADA must be measured, and that measurement must be based on facts

within the record.

Our Supreme Court has stated that “[t]he underlying philosophy of the administrative process for

settling disputes is to give finality to findings of fact

made by administrative agencies, when such findings are supported by competent evidence and are

procedurally proper.” Lemoine, 113 R.I. at 291, 320

A.2d at 614. After reviewing the record, the Court

finds that the Hearing Officer failed to sufficiently

develop the administrative record on the relationship between wages and “rates, routes, and services.”

See Cullen v. Town Council of Town of Lincoln, 850

A.2d 900 (R.I. 2004) (if an agency fails to disclose the

basic findings upon which its ultimate findings are

premised, the court will neither search the record for

supporting evidence nor will it decide for itself what

is proper in the circumstances).

Therefore, this Court finds the Hearing Officer did

not clearly develop the record on whether the wage

of an employee is related to an air carrier’s prices,

routes, and services. The purpose of requiring sufficient findings of fact is to prevent reviewing courts

from having to speculate as to the basis for the agency’s conclusions. See Autobody Ass’n, 996 A.2d at 95;

see also Milardo, 434 A.2d at 272. The deficiency in

the administrative record warrants remand to the

agency for development of the record pertaining to

whether the effect of wages on “rates, routes, and

services” is proximate or remote. See Hooper, 104

R.I. at 44-45, 241 A.2d at 815-16 (proper procedure is

58a

for court to order a hearing de novo or remand in order to afford the administrative agency an opportunity to clarify or complete its decision). The question of law at issue in the instant matter cannot be

reached without the Hearing Officer receiving testimony, affidavits, or some other admissible evidence

that concerns the relatedness between an increase in

wages and disruption of Delta’s ability to control its

“rates, routes, or services.”

IX

Conclusion

After review of the entire record, this Court

grants Delta’s motion to withdraw its Affidavit and

remands this matter to the Department of Labor and

Training for a hearing on the issue of the effect of

employee wages on Delta’s rates, routes, and services. This Court will retain jurisdiction. Counsel

shall submit the appropriate judgment for entry.

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APPENDIX D

State of Rhode Island and Providence Plantations

Department of Labor and Training

Division of Labor Standards

Kathleen Brown

Robin Brindle

Sandra Carter

Kimberly Clayman

Marcie LaPorte

Kelvin Ramirez

a/k/a Kevin Ramirez

vs.

Delta Airlines, Inc.

LS# 11-396

DECISION

These matters were originally heard on May 9,

2012 by the undersigned as the authorized representative of the Director of the Department of Labor

and Training (DLT). The hearings were conducted in

compliance with R.I.G.L. §28-14-19 as a result of

claims filed by several petitioners, against Delta Airlines, Inc., (Delta) alleging failure to pay premium

wages.

Decisions were rendered by the undersigned on

May 18, 2012 stating that the state law the petitioners were proceeding under was preempted by the

Airline Deregulation Act of 1978 (ADA) and DLT had

no jurisdiction in the cases. Timely appeals were

taken of those decisions to the Superior Court. The

cases were consolidated in the Superior Court. A decision by Judge Susan McGuirl of the Rhode Island

Superior Court was filed on September 3, 2014 remanding the matter back to the Department of La-

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bor & Training for further hearing and findings of

fact on the issue of the effect of employee wages on

Delta’s rates, routes or services. If the employee

wages were related to Delta’s rates, routes or services the preemption of the ADA be applicable.

Remand Hearing

The remand hearing was held on May 4, 2015.

The petitioners were represented by Vicki J. Bejma,

Esq. Delta Airlines was represented by Thomas R.

Gonnella, Esq and Ira G. Rosenstein, Esq. Kelly

Fredericks, President and CEO of the Rhode Island

Airport Corporation, and Sandra LaPlante, station

manager for Delta at TF Green Airport, testified on

behalf of Delta.

Mr. Fredericks testified that he has held his current position for approximately two years. He testified he had experience in the aviation and transportation industry for 30 to 35 years including as a civil

engineer and the chief operating officer of an international airport. He stated he oversaw a $2.5 million

expansion at an international airport. Mr. Fredericks testified that eight airline carriers operate at TF

Green Airport, Rhode Island’s primary airport, and

the airport services approximately 10,000 travelers

per day.

Mr. Fredericks testified that attracting and maintaining air carrier services at Green is a critical

component of his job. To aid him in this function he

meets with the air carriers serving Green two times

per year. Mr. Fredericks testified that the two main

considerations of airlines when thinking of coming to

Green or continuing there is demand and cost.

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Mr. Fredericks was asked if additional labor cost

in Rhode Island made the Rhode Island Airport Corporation less competitive in the market for air services. He answered affirmatively. Mr. Fredericks

testified that Sundays and holidays are important

days in the airline industry. He testified the airline

industry operates 365 days per year, 24 hours per

day and 7 days per week.

Under cross examination Mr. Fredericks acknowledged that a number of factors influence whether a

carrier will locate in Rhode Island. He testified those

factors include considerations such as airport location, lease terms, other transportation services,

technology, regulatory climate, workforce skill set,

tax breaks and local opposition to expansion.

Sandra LaPlante testified that she has been station manager for Delta for three years and worked

for Delta for twenty years. She has held the positions

of performance leader, customer service agent and

reservation agent for Delta. As station manager she

oversees the day to day operation, performs administrative work and leads a team of 25 employees.

Ms. LaPlante testified that Delta expects to deliver superior customer service to its customers and her

job is to carry out customer service at Green Airport.

She testified that service on Sunday and holidays is

important to Delta because they operate seven days

per week. She testified that currently Delta operates

four to five flights on Sundays at Green. They have

operated as many as 16 flights on Sundays. Ms.

LaPlante testified that she is not involved in deciding how many flights fly. Corporate networking

makes those decisions.

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Ms. LaPlante described the process used by Delta

to schedule employees at Green Airport. She testified

that she reviews the schedule to ensure that minimum staff is available to operate flights. She determines that the counter is staffed, the gates are

staffed and baggage service is staffed.

Ms. LaPlante testified that if Delta paid Sunday

and holiday premium pay to its Rhode Island workers it could impact or modify services the airline provided on those days. She gave the example that a

lobby agent is part of Delta’s ticket counter services.

If premium pay were required it could modify

whether Delta had a lobby agent on schedule to service customers.

Ms. LaPlante testified that she receives a budget

from corporate and a certain percentage of the budget is allocated for employees’ salaries and benefits.

She testified that if a cost was increased it would

disturb the budget and could result in Delta staffing

fewer employees or modifying services offered.

On cross examination Ms. LaPlante testified that

corporate determines minimum staffing levels. She

testified that they base it on analysis of the number

of flights and passengers served. She testified that

corporate sets the rates charged for flights, the

routes flown and the services offered by Delta.

Two of the complainants, Kathleen Brown and

Marcie LaPorte, testified. Ms. Brown submitted a

document (Complainant’s 2) that she prepared listing the Sundays and holidays worked by the individual complainants and their rates of pay. Ms.

LaPorte testified that she regularly works on Sundays and that the flight volume on Sundays fluctuated depending on the time of year. She testified

63a

that staffing levels fluctuate depending on flight volume.

Findings of Fact and Analysis

Ms. LaPlante testified that if Delta was required

to pay premium pay on Sunday or holidays it could

impact the level of services provided. She stated that

Delta could decide not to have certain employees,

who provided customer service, on the schedule for

those days. She also testified that she receives a

budget from corporate headquarters, with a certain

amount dedicated to employee salaries and benefits.

An increase in salaries would change the budget

with the possibility that an adjustment in services or

staffing would have to be made. I find this testimony

to be persuasive. Her twenty years with Delta, in

various positions, and particularly as a station manager overseeing customer service, gives her a unique

perspective. I find her testimony indicates that an

increase in employees’ wages would affect Delta’s

services.

Mr. Fredericks testified about the factors that an

air carrier looks at when determining whether to locate or continue at a particular airport. A number of

factors were mentioned by Mr. Fredericks including

cost. Although this information was not particular to

Delta I find it credible as pertaining to air carriers

and supportive of the point made by Ms. LaPlante.

The complainants argue that to determine if the

Rhode Island premium pay law affects Delta’s rates,

routes or services quantitative information must be

presented and Delta failed to do that. They further

argue that Ms. LaPlante and Mr. Fredericks cannot

provide the necessary information because each of

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them lacks specific knowledge of how Delta sets its

rates, routes and services. They argue Ms. LaPlante

lacks the knowledge because these decisions are

made above her level in the corporate structure and

Mr. Fredericks lacks the knowledge because he is

not employed by Delta nor involved in Delta’s decisions.

I find the holding in Massachusetts Delivery Association v. Coakley, 769 F.3d 11 (1st Cir. 2014) allows

for a determination even if quantitative information

is not presented. “We have previously rejected the

contention that empirical evidence is necessary to

warrant FAAAA preemption, and allowed courts to

“look to the logical effect that a particular scheme

has on the delivery of services or the setting of

rates.” N.H. Motor Transp. Ass’n v. Rowe, 448 F3d

66, 82 n.14. Second, this logical effect can be sufficient even if indirect, as described above.” Coakley at

21.

The claimants’ attorney has provided a case decided August 20, 2015, by the Washington Supreme

Court, Filo Foods, LLC v. The City of Sea-Tac, 2015

WL 494396 (2015). In that case the Court ruled on a

number of issues including whether a city ordinance,

setting a minimum wage, was preempted by the

ADA from being applied to the SeaTac Airport. The

Washington Court acknowledged that the United

States Supreme Court has given a broad interpretation to preemption language. However, it found the

ordinance (Proposition 1) was not preempted, … “because Proposition 1 regulates employer-employee relationships and its affect on airline prices and services is only indirect and tenuous.” Id. at *16.

65a

I find Filo Foods, LLC v. The City of Sea-Tac can

be distinguished from the case under consideration.

The Washington ordinance set a minimum wage of

$15.00 per hour. There is no indication of the previous minimum wage. The present case deals with

premium pay of time and one half on Sundays and

holidays. Testimony in this case was presented that

increased pay on Sundays and holidays could impact

staffing which would impact the level of service.

Based on that analysis I find that RIGL 25-3-3 is

preempted from application at TF Green Airport by

the ADA.

September 1, 2015 /s/ Mary Ellen McQueeney-Lally

Mary Ellen McQueeney-Lally

Representative of the Director

Department of Labor & Training

1511 Pontiac Avenue

Cranston, RI 02920

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APPENDIX E

State of Rhode Island and Providence Plantations

Department of Labor and Training

Division of Labor Standards

Kathleen Brown

vs.

Delta Airlines, Inc.

LS# 11-396

DECISION

Pursuant to Chapter 14 of Title 28 of the Rhode

Island General Laws, entitled “Payment of Wages,” a

hearing was conducted on May 9, 2012 by the undersigned, as the authorized representative of the Director of the Department of Labor and Training. The

hearing was conducted in compliance with R.I.G.L.

§28-14-19 as a result of a claim filed by the complainant, Kathleen Brown, against respondent, Delta

Airlines, Inc.

The complainant filed a complaint with the Department’s Division of Labor Standards on or about

September 6, 2011 alleging non payment of premium

pay for Sundays and holidays. Rhode Island’s statutes on this issue are found in Rhode Island General

Laws § 25-3-et seq. These statutes, with some exemptions, require that employers pay one and onehalf (1 ½) times the normal rate of pay to employees

who work on Sundays and holidays.

Complainant was one of twelve (12) Delta Airlines

employees who filed similar complaints. Ten (10) of

the employees who filed complaints appeared at the

May 9, 2012 hearing. One (1) of the complaining em-

67a

ployees did not appear at the hearing but submitted

an affidavit with information relative to the hours

she worked on Sundays and holidays.

Counsel for Delta Airlines, Inc., William O’Gara,

objected to the jurisdiction of the Department of Labor & Training in this matter. He based his objection

on the Airline Deregulation Act of 1978, 49 U.S.C.A.

§ 1301 et seq. He claimed the Act preempted states

from enacting and enforcing wage laws for airline

employees (letter dated November 16, 2011, copy enclosed).

ANALYSIS

The Airline Deregulation Act of 1978 (ADA) contains what is known as a preemption clause or provision. This preemption clause prohibits states from

enacting or enforcing a law or regulation related to a

price, route or service of an air carrier. The United

States Supreme Court has interpreted this section of

the Airline Deregulation Act in two cases, Morales v.

Transworld Airlines, Inc., 504 U.S. 374, 112 S. Ct.

2031, 119 L. Ed. 2d 157 (1992) and, American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S. Ct. 817,

130 L. Ed. 2d 715 (1995). It has interpreted a similar

preemption section found in the Federal Aviation

Administration Authorization Act of 1994 in the case

of Rowe v. New Hampshire Motor Transport Ass’n,

552 U.S. 364, 128 S. Ct. 989, 169 L. Ed. 2d 953

(2008). Additionally, the United States Court of Appeals for the First Circuit has rendered a recent decision on this issue, DiFiore v. American Airlines,

Inc., 646 F.3d 81 (1st Cir. 2011).

The Morales case determined whether the ADA

preempted states from prohibiting what they consid-

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ered deceptive airline advertisements on fares. The

National Association of Attorneys General had issue

guidelines on the content and format of airline fare

advertising. The United States Supreme Court found

that this was impermissible under the preemption

clause of the ADA. “All in all, the obligations imposed by the guidelines would have a significant impact upon the airlines’ ability to market their product, and hence a significant impact upon the fares

they charge.” Morales 504 U.S. at 390. The impact

that advertising had on fares charged made the

guidelines a regulation that was related to a price,

route or service of an air carrier and therefore impermissible.

At issue in Wolens was American Airline’s frequent flyer program. Plaintiffs were participants of

the program and complained that changes in the

program instituted by American Airlines devalued

frequent flyer credits that participants had already

earned. Plaintiffs alleged the changes violated the

Illinois Consumer Fraud and Deceptive Business

Practices Act and was a breach of contract. The Supreme Court held that the preemption clause prohibited American Airlines from being sued under the

Illinois Consumer Fraud Act. “… the Consumer

Fraud Act serves as a means to guide and police the

marketing practices of the airlines; the Act does not

simply give effect to bargains offered by the airlines

and accepted by the airline customers. In light of the

full text of the preemption clause, and of the ADA’s

purpose to leave largely to the airlines themselves

and not at all to States, the selection and design of

marketing mechanisms appropriate to the furnishing of air transportation services, we conclude that §

1305(a)(1) preempts plaintiffs’ claims under the Con-

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sumer Fraud Act.” Wolens, 513 U.S. at 228. The

Court found that Plaintiffs could proceed in that case

under a breach of contract theory. A breach of contract, however, has no application in the present

matter.

In Rowe the United States Supreme Court held

that preemption language found in the Federal Aviation Administration Authorization Act prohibited

Maine from passing laws that regulated the delivery

of tobacco to customers within the State.

In DiFiore American Airlines was sued by several

of its employees. These employees, known as

skycaps, provided curbside luggage service to passengers. In addition to being paid wages by American Airlines these skycaps collected tips from passengers for the baggage they handled. In 2005 American Airlines began charging passengers a $2 fee for

each bag checked with the skycaps. Many passengers mistook this for a gratuity that was passed on

to the skycaps and stopped tipping them. The

skycaps sued American Airlines alleging the $2 fee

violated a Massachusetts statute governing tips.

The First Circuit Court of Appeals found that the

Massachusetts “tips law has a direct connection to

air carrier prices and services and can fairly be said

to regulate both.” DiFiore, 646 F.3d at 87. The court

held the preemption provision of the ADA did not allow the Massachusetts law to be applied to the

skycaps.

These cases convince me that the wages of airline

employees come within the seep of the “related to a

price, route or service of an air carrier” language of

the ADA. Consequently, I find the state of Rhode Island and the Department of Labor & Training is

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preempted from enforcing wage laws for airline employees. Therefore, I have no jurisdiction to adjudicate this claim and I dismiss it.

May 18, 2012

/s/ Mary Ellen McQueeney-Lally

Mary Ellen McQueeny-Lally, Esq.

Representative of the Director

Department of Labor & Training

1511 Pontiac Avenue

Cranston, RI 02920

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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