Opinion
17-CV-1343 (ILG) (RML)
2021-09-30
DELTA AIR LINES, INC., Plaintiff, v. The NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS and Lorelei Salas, in her official capacity as Commissioner of the New York City Department of Consumer Affairs, Defendants.
Brendan Thomas Killeen, Nicole M. Zito, Ira Gregg Rosenstein, Morgan, Lewis & Bockius LLP, New York, NY, for Plaintiff. Max R. Sarinsky, Annette Marie Lalic, Nicholas R. Ciappetta, Sheryl R. Neufeld, The City of New York Law Department Office of Corporation Counsel, New York, NY, for Defendants.
Brendan Thomas Killeen, Nicole M. Zito, Ira Gregg Rosenstein, Morgan, Lewis & Bockius LLP, New York, NY, for Plaintiff.
Max R. Sarinsky, Annette Marie Lalic, Nicholas R. Ciappetta, Sheryl R. Neufeld, The City of New York Law Department Office of Corporation Counsel, New York, NY, for Defendants.
MEMORANDUM & ORDER
GLASSER, Senior United States District Judge:
In 2014, the New York City Council enacted the New York City Earned Sick Time Act ("Act") to require and regulate the provision of paid sick leave by private employers to private employees who work within New York City. Plaintiff Delta Air Lines ("Delta") challenges the application of the Act to Delta's in-flight crew, and brings this action against the New York City Department of Consumer Affairs ("DCA") and its Commissioner, Lorelei Salas (together with DCA, "Defendants"). Pursuant to 28 U.S.C. §§ 2201 and 2202, Delta seeks (i) a declaratory judgment that the Act is preempted by federal law, and (ii) a declaratory judgment that the Act is unconstitutional because it violates the federal Constitution's Commerce Clause, the New York State Constitution's prohibition against extraterritoriality, and is vague. Delta also seeks an injunction to preclude Defendants from enforcing the Act against it. The parties have each moved for summary judgment on the same grounds.
Delta is not challenging the application of the Act with respect to its ground-based crew.
United States federal courts have long debated the proper balance between an individual employee's right to contract with an employer regarding what labor practices the employee will be subjected to, and a state or local government's right to regulate those conditions. See, e.g., Lochner v. N.Y. , 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). This case could be another entry in that long deliberation, where a local government is requiring an employer to provide certain specific paid sick leave benefits to its employees. However, because it is clear that federal law expressly preempts the challenged local rule as applied to Delta's flight attendants, the Court need not engage in the weighing exercise that has long challenged jurists. For the reasons that follow, Delta's motion for summary judgment [ECF No. 30] is GRANTED , and Defendants’ motion for summary judgment [ECF No. 40] is DENIED . Additionally, Delta's motion to strike [ECF No. 57] is DENIED .
Unless otherwise noted, the following facts are taken from the undisputed statements in the parties’ Rule 56.1 statements.
I. Delta Air Lines
Delta is a U.S. airline that provides scheduled air transportation for passengers and cargo throughout the United States. It brands itself as the U.S. global airline leader in services, reliability, and customer experience. Delta provides service to more than 2,950 mainline flights daily, over 180 of which are from the New York City area. Delta's flight network is predicated on integrated routes to facilitate flight connections and transfers. While the vast majority of Delta's flights are interstate or international, none begin and end in New York City.
As of August 2017, Delta employed 22,613 active flight attendants, 4,354 of whom were "based" in New York City. Delta does not require flight attendants to reside in the location where they are based. In fact, as of August 2017, only 816 of the 4,354 New York City-based flight attendants lived in New York City. Flight attendants work a fluctuating schedule each month that is dependent upon the available rotations, their personal preferences, the bid process results, and their subsequent actions; their work locations vary from day-to-day, week-to-week, and month-to-month. It is possible that a New York City-based flight attendant may not fly into or out of New York City in a given month; in 2017, 19 New York City-based flight attendants did not spend any time working in New York City. On the other hand, since Delta does not operate any flights that both begin and end within New York City, every single flight attendant that flies into or out of one of New York City's airports must also work outside of New York City during that same duty period.
Delta considers a flight attendant's "base" to be the geographical city served by Delta where the flight attendant's rotations typically begin and end. A "rotation" is a preplanned sequence of flights that may consist of one or more flight segments (i.e., a single flight) or one or more duty periods. A "duty period" begins at the flight attendant's scheduled report time for his or her initial flight of the day and ends upon the flight attendant's release from duty following the final flight of the day. It does not appear that a flight attendant's "base" is related in any way to a flight attendant's residence or primary work location; rather, a flight attendant's "base" seems to be nothing more than an internal administrative designation used for scheduling purposes.
Because of the interstate nature of Delta's route network, flight attendants spend most of their duty time flying over multiple cities and states and working in federally (or internationally) regulated airspace. Since 2017, Delta's New York City-based flight attendants spent on average 63% of their duty time in federally (or internationally) regulated airspace, 25% of their duty time on the ground in jurisdictions outside of New York City, and only 12% of their duty time on the ground in New York City.
Flight attendants’ reliability is critical to Delta's service and operational success, and Delta considers flight attendants’ reliability, including their unscheduled absences and tardiness, when evaluating their performance and development. Flight attendants who use unscheduled Paid Personal Time ("PPT") more than four times within a twelve-month period may be subject to "informal coaching," the first step in Delta's five-step Performance Development Program.
When a flight attendant uses unscheduled PPT, Delta needs to find a replacement flight attendant so that the flight can take off as scheduled. In doing so, Delta must be mindful of federal and international regulations regarding flight attendants, as well as operational needs. Delta must ensure that any replacement flight attendant is qualified to work the flight and that, by doing so, he or she will not be violating the Federal Aviation Administration's duty period limitations. Delta likewise needs to confirm that the replacement flight attendant satisfies any additional legal requirements in order to work that flight (e.g., certain foreign countries and cities require flight attendants to have specific visas). Given this need, flight attendants are expected to notify Delta of their need to use unscheduled Paid Personal Time no less than three hours prior to their scheduled report time in New York City; failure to do so may result in disciplinary action.
In order to cover unexpected absences, Delta has a number of flight attendants who work so-called "Access Days." A flight attendant on an Access Day may be either (i) "on-call" or (ii) on airport standby duty. Flight attendants who are "on-call" are free to be wherever they want, doing whatever they want, as long as they can report to duty within a specified timeframe (within three hours in New York City) when called by Delta's Crew Scheduling Department.
Flight attendants who are on airport standby duty are required to be present at one of the three New York City-area airports and must remain accessible to Delta's Crew Scheduling Department throughout their Access Day assignment. For Federal Aviation Administration-purposes, flight attendants on airport standby are considered to be on duty throughout their Access Day assignment, even if they are never assigned a rotation, with their duty period beginning when they report to the airport. II. New York City's Earned Sick Time Act
The Act, which took effect in 2014, is codified in Chapter 8 of Title 20 of the New York City Administrative Code. Rules promulgated by DCA pursuant to the Act are contained in Title 6 of Chapter 7 of the Rules of the City of New York ("RCNY").
Under the Act,
[a]ll employers that employ five or more employees, all employers of one or more domestic workers, and any employer of four or fewer employees that had a net income of one million dollars or more during the previous tax year, shall provide paid safe/sick time to their employees in accordance with the provisions of th[e Act].
N.Y.C. Admin. Code § 20-913(a)(1). Although the Act initially only applied to employees who worked 80 hours or more per calendar year in New York City, the minimum hour threshold was removed in September 2020 in order to bring the Act into compliance with state law. See N.Y.C. Local L. No. 97 Int. No. 2032-A (2020). In its present form, the Act applies to "any ‘employee’ as defined in subdivision 2 of section 190 of the labor law who is employed for hire within the city of New York who performs work on a full-time or part-time basis ...." N.Y.C. Admin. Code § 20-912. Section 190 of the New York Labor Law defines "employee" as "any person employed for hire by an employer in any employment." N.Y. Lab. Law § 190.
Employees who are covered by the Act are entitled to earn
a minimum of one hour of safe/sick time for every thirty hours worked by an employee, provided that ... employers with one hundred or more employees shall not be required under this chapter to provide more than a total of fifty-six hours of safe/sick time for an employee in a calendar year.
N.Y.C. Admin. Code § 20-913(b). This leave can be used as it is accrued – which must start with the commencement of employment – and, for employers with more than 100 employees, up to 56 hours of leave time can be carried over into the following calendar year. Id. at §§ 20-913(d), (h). Leave can be used in any amount, though employers can set a minimum that is no higher than four hours. Id. at § 20-913(g).
The accrued leave can be used for absence from work due to
(a) ... mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care; or
(b) care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care; or
(c) closure of such employee's place of business by order of a public official due to a public health emergency or such employee's need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.
Id. at § 20-914(a)(1). The accrued time can also be used when an employee or a member of the employee's family has been the victim of domestic violence, a family offense matter, a sexual offense, stalking, or human trafficking. Id. at § 20-914(b)(1). Where the employee uses sick leave for more than three consecutive workdays, an employer may require reasonable documentation that the use of sick time was for a reason permitted under the Act. Id. at §§ 20-914(a)(2), (b)(2). The Act permits an employer to require reasonable notice – not to exceed seven days – of the need to use sick time where the need to use the time is foreseeable; where the need to use sick time is not foreseeable, an employer may require an employee to provide notice of the need as soon as practicable. Id. at § 20-914(c). An employer may also require employees to submit written verification that their sick time was for a purpose authorized under the Act and to take disciplinary action against an employee who uses sick time for an unauthorized purpose. Id. at §§ 20-914(d), (f). On the other hand, employers may not engage in any adverse action against employees for exercising their rights under the Act, including discipline, discharge, demotion, suspension, and maintenance or application of an absence control policy that counts protected leave for sick time as an absence that may lead to or result in an adverse action. Id. at §§ 20-918(b)-(c).
Finally, the Act requires that employers provide a notice of rights to employees and retain certain records concerning an employee's entitlement to and use of sick time. Specifically, an employer is required to distribute its written sick time policy upon commencement of employment, within fourteen days of the effective date of any changes to the policy, and upon request by the employee. Id. at § 20-919(a). An employer's written policy must include, at a minimum, the information required pursuant to 6 RCNY § 7-211(c), which includes the employer's method of calculating sick time, the employer's policy regarding the use of sick time, any requirement that an employee provide notice of a need to use sick time and the procedures for doing so, any requirement for written documentation or verification of the use of sick time in accordance with the law, any reasonable minimum increment for use of sick time, and any policy on discipline for misuse of sick time. Employers must retain records demonstrating compliance with the requirements and policies of the Act for a period of three years; records must include, among other requirements, hours worked each week by an employee, the date and time of each instance of sick time used by the employee, the date that the notice of rights was provided to the employee, and proof that the notice of rights was received by the employee. 6 RCNY § 7-212.
III. DCA's 2018 Enforcement Policy
In May 2018, the DCA publicized an Enforcement Policy to clarify the Act's accrual, use, and retaliation provisions as they relate to airline flight crew. Originally, the Enforcement Policy provided for a rebuttable presumption that all New York City-based flight attendants satisfied the 80-hour threshold, and thus were covered by the Act. Following the Act's amendment, in which the 80-hour threshold was removed from the Act, the DCA changed its policy such that it now presumes that all New York City-based flight attendants are covered by the Act and are entitled to the Act's protections "for any flight originating or ending in New York City," regardless of the number of hours actually worked in New York City. Supp. Br. in Further Support of Defs.’ Mot. for Summ. J. [ECF No. 74], at 3.
Prior to the Act's amendment, employers could rebut the presumption by providing documents showing that New York City-based flight attendants did not, in fact, work 80 hours in New York City. However, with the 80-hour threshold removed and a blanket presumption being put in place, it is not clear whether the new presumption – that the law applies to all New York City-based flight attendants who work on any flight that operates to or from New York City – is still rebuttable. Defendants failed to address this issue in their briefing, and the publicly available guidance document has not been updated to reflect the Act's change. See N.Y.C. Dep't of Consumer Affairs, Enforcement Policy: Airline Flight Crew under the New York City Earned Safe and Sick Time Act (May 2018), available at https://www1.nyc.gov/assets/dca/downloads/pdf/businesses/DCAEnforcementPolicyMemo-PaidSickLeave-FlightCrew.pdf (last visited Sept. 30, 2021).
ANALYSIS
I. Delta's Motion to Strike
Delta has moved to strike a large number of Defendants’ responses to its Rule 56.1 statement on the ground that Defendants’ objections "are replete with statements that fail to convert [sic ] properly the facts" in Delta's 56.1 Statement. Pl.’s Partial Mot. to Strike [ECF No. 58], at 2. Delta contends that because Defendants’ objections do not "controvert specifically" the facts that it has set forward with admissible evidence, the objections are improper and should be ignored. Delta further argues that Defendants’ objections are "replete with extraneous, argumentative statements that are apparently designed for tactical advantage and to spin the impact of Defendants’ admissions," and that in the instances where Defendants do provide evidence, the evidence does not support Defendants’ contentions. Id. at 4-6.
"A party seeking to strike a Rule 56.1 statement bears a heavy burden, as courts generally disfavor motions to strike." Bennett v. Target Corp. , No. 16-cv-5816 (ADS)(SIL), 2018 WL 5784354, at *9 (E.D.N.Y. Nov. 5, 2018) (quoting Christians of Cal., Inc. v. Clive Christian N.Y., LLP , No. 13-cv-275, 2014 WL 3407108, at *2 (S.D.N.Y. July 7, 2014) ) (citation and internal quotation marks omitted). "Whether to grant or deny a motion to strike is vested in the trial court's sound discretion." Peters v. Molloy Coll. of Rockville Ctr. , No. 07-cv-2553, 2010 WL 3170528, at *1 (E.D.N.Y. Aug. 10, 2010) (citation and internal quotation marks omitted). Instead of granting such a motion, "courts in this Circuit frequently deny motions to strike paragraphs in Rule 56.1 statements, and simply disregard any improper assertions." Ross Univ. Sch. of Med., Ltd. v. Brooklyn-Queens Health Care, Inc. , No. 09-cv-1410 (KAM), 2012 WL 6091570, at *6 (E.D.N.Y. Dec. 7, 2012), report and recommendation adopted in part , No. 09-cv-1410 (KAM)(RLM), 2013 WL 1334271 (E.D.N.Y. Mar. 28, 2013) (collecting cases); see also Morris v. Northrop Grumman Corp. , 37 F. Supp. 2d 556, 569 (E.D.N.Y. 1999) (denying motion to strike "with the understanding that in the Court's analysis of the motions for summary judgment it will only consider facts that have been properly set-forth in accordance with the Federal Rules of Civil Procedure as well as the Local Rules").
The detailed background provided above is drawn from undisputed statements of fact. The plethora of paragraphs about which the parties are arguing are simply unnecessary to consider in order to resolve the cross-motions for summary judgment. Thus, the Court denies Delta's motion and will simply ignore the challenged assertions – there is ample evidence in the record to resolve the parties’ motions without needing to conduct a line-by-line analysis of the disputed statements.
II. Motions for Summary Judgment
A. Standard of Review
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is material if it might affect the outcome of the case under governing law." Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of N.Y. , 822 F.3d 620, 631 n. 12 (2d Cir. 2016) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Id. (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). "In making this determination, the Court ‘must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ " Id. (quoting Beyer v. Cnty. of Nassau , 524 F.3d 160, 163 (2d Cir. 2008) ); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson , 477 U.S. at 255, 106 S.Ct. 2505. " ‘The evidence of the non-movant is to be believed’ to the extent that a jury could reasonably believe it." Grant v. City of N.Y. , No. 15-cv-3635 (ILG)(ST), 2019 WL 1099945, at *4 (E.D.N.Y. Mar. 8, 2019) (quoting Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ). "Conversely, ‘the court ... must disregard all evidence favorable to the moving party that the jury is not required to believe.’ " Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).
B. Preemption under The Airline Deregulation Act
The first argument the parties make concerns preemption by The Airline Deregulation Act, 49 U.S.C. § 40101, et seq. ("ADA"). The ADA prohibits any state or political subdivision thereof from "enact[ing] or enforce[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 ...." 49 U.S.C. § 41713(b)(1).
1. Delta's Argument
Delta begins with a dubious argument that the Act necessarily impacts the airline's "services" because its "unambiguous purpose is to encourage employees to take time off from work," and to do so by providing only as much notice "as is practicable." Mem. of Law in Supp. of Pl. Delta Air Lines, Inc.’s Mot. for Summ. J. [ECF No. 31], at 18. Since the Act prohibits employers from enforcing its disciplinary policies to hold employees accountable for their absences, Delta continues, the Act will result in more flight attendants calling out unexpectedly and upon short notice. This increase in unscheduled and short-notice absences will impact Delta's ability to adequately staff its flights (the level of which is set by federal law) and thus provide its services. Moreover, Delta argues, the Act impacts its "routes" because the increase in unexpected and short-notice absences will create disincentives for Delta to expand its services or create new routes in a market where it cannot maintain its standards for service quality.
In support of its position, Delta points to the example of Virgin Airlines, which, Delta says, experienced a significant increase in sick leave usage after it began attempting to comply with the Act's provisions. As a result of the increase in absences, Virgin experienced a significant increase in delays and cancellations for flights at John F. Kennedy International Airport. Virgin ultimately closed its flight attendant base in New York, impacting the services and routes that it could provide from New York. Delta contends that its experience would likely be similar, creating a clear impact on its services and routes.
2. Defendants’ Argument
In opposition, Defendants argue that the ADA's preemption provision does not apply to the Act because it does not directly or indirectly mandate, prohibit, or otherwise regulate certain prices, routes, or services. They contend that a state law is "related to" an airline's rates, routes, or services only if it has a "connection with" the carrier's routes, rates, or services that causes a "significant impact." Moreover, Defendants argue that this definition does not extend to generally applicable laws that regulate how the airline behaves as an employer, even if there is an indirect impact on the airline's services. In support of their position, Defendants rely largely on authority from outside of the Second Circuit and an incorrect reading of Supreme Court precedent. Specifically, Defendants write that in order for a law to be "related to" an airline's routes, rates, or services, it must have a connection that causes a significant impact, and that generally applicable employment regulations are only preempted if they "dictate" an airline's choices with respect to prices, routes, or services. Defs.’ Mem. of Law in Opp. to Pl.’s Mot. for Summ. J. [ECF 47], at 20-22.
With respect to the Act's purported impact on Delta, Defendants argue that Delta's claims are speculative and unsupported by the evidence. They point out that the Act permits employers to require reasonable notice of an absence, and that since flight attendants need to show up at least an hour ahead of a flight, the flight attendant's failure to report for duty still leaves the airline with an hour of notice to find a replacement. Moreover, the Act permits employers to discipline employees for absences above forty hours. Defendants also reject Delta's reliance on Virgin Airlines’ experience, objecting to the conclusions drawn by Delta's expert witness that there is a connection between the Act and a significant increase in absences. Finally, Defendants say that Delta fails to quantify its cost of compliance, so even if the Act does have an impact on its services, there is no analysis of how great an impact that would be, and negligible impacts are not sufficient to trigger preemption.
3. Recent Ninth Circuit Precedent
Before turning to the legal analysis, it is necessary to acknowledge that the Ninth Circuit recently decided a case that appears to be directly on point with this one. In Air Transport Ass'n of Am. v. The Wash. Dep't of Labor & Industries , 859 Fed.Appx. 181 (9th Cir. 2021), the court addressed whether or not Washington State's paid sick leave law was preempted by the ADA. While noting that the state law "regulates the airline-employee relationship in a way that may ultimately affect the airlines’ competitive decisions in the free market," the court found that the state law was not preempted because it did not "bind" airlines to particular prices, routes, or services. Wash. Dep't of Labor & Industries , 859 Fed.Appx. at 184. Rather, because the Washington law was a "generally applicable labor regulation[ ]" it was "too tenuously related to airlines’ services to be preempted." Id . at 184.
The Court declines to follow the Ninth Circuit's decision. The Court disagrees with the Ninth Circuit that a state or local law is preempted only when it "binds" an airline to a particular price, route, or service. No other circuit, including the Second Circuit, has adopted such a narrow standard. Rather, as explained below, the Court finds that the proper test is whether the state or local rule frustrates the ADA's deregulatory purpose.
Furthermore, the Ninth Circuit's opinion is completely silent on and indifferent to the "services" that are potentially impacted by the Washington state law, including the actual impact the state law will have on services. The circuit instead applies a blanket rule that "generally applicable labor regulations" are not preempted under the ADA. The Court believes such a uniform approach, which is indifferent to the case-specific impacts of a local law on an airline's services, is antithetical to the Second Circuit's approach, which recognizes that the ADA's preemption provision must be applied on a case-by-case basis. Abdu-Brisson v. Delta Airlines, Inc. , 128 F.3d 77, 84-86 (2d Cir. 1997) (noting the difficulties in applying the ADA preemption provision and explaining that "sometimes even a jurisdictional issue may even require a lengthy trial"). The Court also does not find the Ninth Circuit's approach to be consistent with the Supreme Court's holding in Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Specifically, in Morales , the Court rejected the argument "that only state laws specifically addressed to the airline industry are pre-empted ... [while] the ADA imposes no constraints on laws of general applicability." 504 U.S. at 386, 112 S.Ct. 2031. The Court explained that such an interpretation would "creat[e] an utterly irrational loophole (there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute)" and "this notion similarly ignores the sweep of the ‘relating to’ language." Id.
4. The ADA Preemption Test
"Congress enacted the ADA in 1978, loosening its economic regulation of the airline industry after determining that maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety and quality of air transportation." Air Transp. Ass'n of Am., Inc. v. Cuomo , 520 F.3d 218, 222 (2d Cir. 2008) (internal quotations omitted). "To ensure that the States would not undo this deregulation with regulation of their own, Congress included an express preemption provision." Id. (internal quotations omitted). As noted above, this provision prohibits any non-federal laws or rules that are "related to a price, route, or service of" an airline covered by the statute. 49 U.S.C. § 41713(b)(1). "[T]he key phrase ‘related to’ expresses a ‘broad pre-emptive purpose.’ " Nw., Inc. v. Ginsberg , 572 U.S. 273, 280, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014) (quoting Morales , 504 U.S. at 383, 112 S.Ct. 2031 ); see also Altria Grp., Inc. v. Good , 555 U.S. 70, 85, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (noting the "unusual breadth of the ADA's pre-emption provision"). Thus, part one of the preemption test is to determine if the state or local law has "a connection with, or reference to," carrier rates, routes, or services, even if the state or local law's effect on rates, routes, or services "is only indirect." Rowe v. New Hampshire Motor Transp. Ass'n , 552 U.S. 364, 370, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008).
After determining that a state or local law is "related to" a carrier's rates, routes, or services, part two of the preemption test is to determine whether or not the relation is substantial enough to trigger preemption. The Supreme Court has not drawn an exact line with respect to how significant the relation must be in order to trigger preemption; rather, the Court has only marked an upper bound, noting that preemption "occurs at least where state laws have a ‘significant impact’ related to Congress’ deregulatory and pre-emption-related objectives." Id. at 371, 128 S.Ct. 989 (citing Morales , 504 U.S. at 390, 112 S.Ct. 2031 ). On the other hand, "[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner to have a preemptive effect." Abdu-Brisson , 128 F.3d at 81 (quoting Morales , 504 U.S. at 390, 112 S.Ct. 2031 ). To determine where on this spectrum a specific state or local law is, and whether its impact on an airline's routes, prices, or services triggers preemption, the Court evaluates whether the local law "would frustrate the purpose of the ADA," which was to promote competition and efficiency through a deregulated industry. Id. at 82-84. If so, the state or local law should be found to be preempted.
5. Application of the ADA Preemption Test
First, the question of whether the Act relates to a covered service is a question of law that the Court can resolve on summary judgment. Here, the Court finds that the Act does relate to a covered service.
In addressing the New York State Passenger Bill of Rights, which required "airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays," the Second Circuit held that the law did relate to the service of an air carrier and therefore fell within the express terms of the ADA's preemption provision. Cuomo , 520 F.3d at 223. In Cuomo , the court joined the "majority of the circuits to have construed ‘service’ [to hold] that the term refers to the provision or anticipated provision of labor from the airline to its passengers." Id. If state or local laws that impact the provision of labor to passengers are "related to" a service for ADA purposes, then so too must state or local laws that impact the availability of the labor itself, because if the labor is not available, no services can be provided.
Here, in addition to the services identified in Cuomo , the Court adds to the list the operation of the scheduled flight itself. In order to provide this service – along with all others provided on the flight – federal law mandates that the airline staff each flight with a specific crew complement, which includes a minimum number of flight attendants. Without that minimum number, the flight cannot operate, and the airline cannot provide any of its services. Because the Act relates to flight attendants and their availability at the time they are scheduled to work, the Court finds that the Act relates to a covered service under the ADA.
An alternative approach to resolving this first question focuses on the contractual relationship between the airline and passenger: some courts have found that the term "service" only extends to those aspects of the flight experience that are part of the contractual bargain between the airline and the customer. See, e.g., Tobin v. Fed. Exp. Corp. , 775 F.3d 448, 453 (1st Cir. 2014) ("Matters appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline, such as ticketing, boarding procedures, provision of food and drink, and baggage handling are all included under the mantle of ‘service.’ "); Mennella v. Am. Airlines, Inc. , 824 F. App'x 696, 703 (11th Cir. 2020) ("the phrase related to the ... services of an air carrier means having a connection with or reference to the elements of air travel that are bargained for by passengers with air carriers") (quoting Branche v. Airtran Airways, Inc. , 342 F.3d 1248, 1258-59 (11th Cir. 2003) ); Hodges v. Delta Airlines, Inc. , 44 F.3d 334, 336 (5th Cir. 1995) (en banc ) (" ‘Services’ generally represent a bargained-for or anticipated provision of labor from one party to another.").
Under this approach, the relevant "service" in this case is that the flight reliably departs on schedule. Indeed, the ability to "provid[e] high quality service to its customers, such as on time performance and low cancellation rates," is something that Delta "prides itself on" as a "global leader." Defs.’ Responses & Objections to Pl.’s Local R. 56.1 Statement of Undisputed Material Facts [ECF No. 46], at 11, 22. By bearing on Delta's ability to reliably provide on-time flights to its passengers, the Act relates to one of the bargained-for services the airline is supposed to provide. Thus, even under this alternative approach, the Act is still found to relate to a covered service for purposes of the ADA.
Second, the question of whether the Act's impact on the airline's service is significant enough to trigger preemption is a mixed question of law and fact. Although questions of fact cannot be resolved at this stage, it is not necessary to do so in order to reach an answer on this second part of the test. Rather, as a matter of law, the Act must be preempted because the Act threatens to subject Delta to a patchwork of state laws that will undermine its ability to compete in a deregulated marketplace, the purpose for which the ADA was enacted to achieve.
In addition to New York City, Washington State has passed its own paid sick time law that, given the Ninth Circuit's recent ruling, is applicable to airline flight attendants. See Wash. Dep't of Labor & Industries , 859 Fed.Appx. at 184-85. Many other jurisdictions have also passed their own laws regulating the provision and use of paid time off. See Defs.’ Responses & Objections to Pl.’s Local R. 56.1 Statement of Undisputed Material Facts [ECF No. 46], at 5-7 (conceding existence of laws regulating paid time off in other states and cities). Because flight attendants necessarily work in multiple cities, they may become subject to multiple state and city laws regulating their rights to paid sick time. At best, this patchwork would only impose an additional administrative burden on an airline such as Delta, ensuring compliance with the different rules; at worst, if the different laws are not compatible, airlines will be forced to create new, separate networks to isolate flight attendants from jurisdictions with conflicting laws. Such an outcome would certainly undermine the congressional goals of efficiency and competition that underlie the ADA. See Cuomo , 520 F.3d at 223-24 (New York State Passenger Bill of Rights was preempted because "[i]t substitutes New York's commands for competitive market forces, requiring airlines to provide the services that New York specifies ... and threatening the same patchwork of state service-determining laws, rules, and regulations that concerned the Court in Rowe ").
Moreover, Defendants concede that flight attendants understand policy changes related to their paid time off and modify their behavior in response. See Defs.’ Responses & Objections to Pl.’s Local R. 56.1 Statement of Undisputed Material Facts [ECF No. 46], at 39. For example, after Virgin Airlines attempted to comply with the Act, it observed flight attendants requesting base transfers into the airline's New York City base; once granted, a meaningful number of Virgin flight attendants were found to have exhausted their paid sick leave entitlement and then sought an immediate transfer back to their original base. Id. at 45. These transfers strongly suggest that flight attendants were transferring to a New York City base solely to take advantage of the Act. Id. at 46. A flight attendant's base has at least some impact on the airline's scheduling, so if flight attendants begin to forum shop in order to take advantage of local laws, the airline's scheduling – and thus services – will be impacted to some extent. This again counsels in favor of finding preemption. That the Act is a law of general application that targets airlines as employers, rather than what is generally understood by the term "service providers," does not undermine this conclusion. Defendants are correct that such laws are frequently found to not be preempted. Defs.’ Mem. of Law in Opp. to Pl.’s Mot. for Summ. J. [ECF 47], at 22. In support of this point, Defendants point to cases involving anti-discrimination laws, minimum wage laws, and whistleblower laws. Each of these situations is distinguishable.
With respect to anti-discrimination laws, they concern initial hiring practices and equal treatment of employees with respect to non-service-related features (such as race or gender). Such laws do not threaten the operation of an airline's existing operational network or flight-staffing systems. The minimum wage and prevailing wage law decisions that Defendants cite did not risk creating the "patchwork" problem that Congress sought to avoid because they all concerned individuals who work in a single jurisdiction. And the whistleblower cases that Defendants cite either concern post-hoc reports of safety issues, and thus could not impact an airline's services (as the courts found), or were found to not be precluded because "services" were found to only include bargained-for aspects of a flight, of which safety is not one. See, e.g. , Branche v. Airtran Airways, Inc. , 342 F.3d 1248, 1258 (11th Cir. 2003) ("Unsurprisingly, airlines do not compete on the basis of likelihood of personal injury, i.e., onboard safety, and as such it does not undermine the pro-competitive purpose of the ADA, as set forth in Wolens , 513 U.S. at 230, 115 S.Ct. at 824, to permit states to regulate this aspect of air carrier operations.").
In contrast, here, the relevant impact is flight delays, which certainly are something upon which airlines compete. Indeed, in cases where whistleblower complaints could have potentially grounded or did ground a flight, courts found that a "service" was impermissibly impacted and thus the claim was preempted. See Watson v. Air Methods Corp. , 870 F.3d 812, 816-20 (8th Cir. 2017) (en banc ) (distinguishing between a flight attendant's refusal of a work assignment, which created a significant likelihood that the carrier would have to cancel the flight, and a post-hoc complaint of a safety violation, finding the first to be preempted while the second was not); Flashman v. Jet Aviation Flight Servs., Inc. , No. 14-cv-1287 (FSH)(JBC), 2014 WL 4930909, at *4-5 (D.N.J. Oct. 1, 2014) (contrasting cases where courts found claims to be preempted because employee objections threatened the ability of the airline to conduct its flight and cases where courts found claims not to be preempted because they involved post-hoc complaints that could not have any impact an airline's service). Such cases suggest that the Act, which threatens the ability of Delta to operate its flights as scheduled, should be preempted.
The unresolved factual question is the extent to which the Act will impact Delta's services. The parties do not agree as to how much the Act will lead to an increase in flight attendant absences, and thus flight delays. Delta contends that the impact will be significant, and points to Virgin Airlines’ decision to ultimately close its New York City base in large part, according to Delta, because of the Act. However, the Ninth Circuit previously addressed this argument in the context of the Act's impact on the dormant Commerce Clause and found that the purported impact on that clause that Virgin experienced was not significant. Wash. Dep't of Labor & Industries , 859 Fed.Appx. at 185 ("A 1.2 percentage point increase in flight delays—with many of those delays lasting fewer than fourteen minutes—is not a substantial burden on interstate commerce for dormant Commerce Clause purposes, particularly for an industry that anticipates delays at much higher rates under ordinary circumstances.").
On the other hand, Defendants say that Delta is speculating about the impact. Additionally, Defendants argue that because the Act permits employers to require reasonable notice of an absence, and flight attendants have to be at the airport at least an hour before the flight, a flight attendant's taking of unscheduled leave will leave Delta with ample time to find a replacement and avoid delays. Defendants’ argument is not sound.
Defendants contend that "[a] flight attendant's failure to check in prior to a flight puts the airline on notice an hour in advance of takeoff that a reserve may be needed." Defs.’ Mem. of Law in Opp. to Pl.’s Mot. for Summ. J. [ECF 47], at 24. Given this hour of notice, Defendants say that Delta can easily replace the absent flight attendant with another one of its 23,613 active flight attendants, who can be "sent to wherever they are needed." Id. at 12. But Defendants ignore the fact that the pre-flight responsibilities require more than one-hours’ worth of work, and the flight attendants cannot be instantly transported to where they are needed. Starting with scheduling, Delta must identify a suitable replacement who meets all legal requirements, including having sufficient duty time left under Federal Aviation Administration regulations to complete the scheduled rotation. If that flight attendant is not at the airport, the replacement must get to the airport, possibly involving transportation from another city. Once at the airport, the flight attendant must complete all pre-flight work, which includes attending a pre-flight briefing, reporting to the gate, preparing the aircraft, and assisting with boarding. This last step usually starts a half hour prior to the scheduled departure time. The Federal Aviation Administration prohibits boarding any passengers until the necessary crew complement is onboard the aircraft, so if all of the foregoing steps cannot be completed within an hour, then the flight will be delayed. The Court can insinuate that, given Delta's requirement for flight attendants to give no less than three hours of notice if they need to use unscheduled PPT, in Delta's experience the above-listed steps take more than one hour to complete.
Moreover, one must presume that if Delta experiences an increase in unscheduled absences, then so too will other airlines. While Defendants suggest that Delta will be able to manage all of these steps in the required time frame because of its large size and abundant resources, Defendants do not explain how smaller airlines without the same resources will be able to deal with the increase in absences, exposing a second fatal flaw in their argument.
That said, the quantification of the Act's impact on delays is a factual question that cannot be resolved on summary judgment. Fortunately, it is not necessary to answer the question in order to grant Delta's motion for summary judgment because it does not appear to be necessary to determine the exact impact of a state or local law in quantitative terms for determining whether preemption is triggered. Although the Supreme Court's "significant impact" holding in Rowe sounds in quantifiable terms, its "tenuous, remote, or peripheral" language in Morales is more about the directness of the impact, or centrality of the impact to a service, regardless of the impact level. Finding that the directness of the impact on the congressional intent underlying the ADA is more important than the size of the impact makes sense: if it were size that were more important, states and cities could pass all the laws they wanted to, as long as the laws did not require airlines to change any of their behaviors (thereby having no sizeable impact). But such a system would not be the deregulated system that Congress desired in enacting the ADA. Likewise, if it were the size of the impact that mattered, then generally applicable state obscenity laws should be preempted given that they have a significant impact on what materials airlines can include with in-flight services. But the Supreme Court has found such laws not to be preempted. See Morales , 504 U.S. at 390, 112 S.Ct. 2031.
The Court notes that the Second Circuit addressed similar reasoning in Abdu-Brisson , where the issue was the preemption of age discrimination claims brought under state and city law. In that case, the Second Circuit explained that
[t]he district court saw the issue not as whether the state laws would have a significant effect on price, but whether the state laws would interfere with the congressional scheme of airline deregulation intended to promote competition so as to achieve "efficiency, innovation and low prices." The district court reached this conclusion on the basis of the sound assumption that the states could not be permitted to undo federal deregulation with their own regulations. The district court therefore determined that it was the potential impact of state law that had to be considered, not any actual liability exposure. Otherwise, the district court observed, it would inappropriately involve itself in the merits of the case, not just the initial preemption issue.
Abdu-Brisson , 128 F.3d at 81 (internal citations omitted). The circuit court ultimately reversed the district court because, given the specific facts of the case, the district court's approach "would sweep too many state regulatory statutes under the rug of ADA preemption" and thus was improper "as applied." Id. at 82. However, the circuit found that "[t]he district court's approach and analysis is not unreasonable considering the difficulties inherent in applying the imprecise ADA preemption standard." Id.
The Act – and its relation to airline services – are different from the age discrimination laws at issue in Abdu-Brisson . Although the Act is a law of general applicability and is a law aimed at Delta as an employer, the Act's potential impact goes directly to the availability of flight attendants, and thus on-time flights, a core service of the airline. If flight attendants fail to report to work as scheduled, that directly precludes Delta from being able to operate its core service as scheduled. This impact is on-going and operates in real time: at any point or multiple points throughout a day, the Act's provisions may impact Delta's services. Because, as explained below, the law now applies to any flight attendant who, at any point during the year works on a flight that lands in or takes off from a New York City airport, the Act's impact is not limited to flights taking off from New York City. Rather, the Act's impact could occur anywhere in Delta's international route network, including locations where there is not a ready reserve of flight attendants to replace one who takes an unscheduled absence without notice. Such a situation is different from that faced by the court in Abdu-Brisson , where the claims dealt with internal administrative issues such as the awarding of seniority. Those types of claims could have no impact in the real time operation of Delta's services. The Court therefore finds it appropriate to follow the reasoning that the Second Circuit found to be based on a "sound assumption" and "not unreasonable," and, without having to quantity the Act's impact, holds that the Act's relation to Delta's services is significant enough to trigger preemption.
In reaching this conclusion the Court is not opining on the policy embodied within the Act or making any other pronouncement regarding the wisdom or merits of the Act's provisions.
In addition to the foregoing, the application of the Act to flight attendants is troubling because it would exert jurisdiction over employees who may only have a de minimis connection to New York City. The Act applies to all employees who are "employed for hire within the city of New York who perform[ ] work on a full-time or part-time basis." N.Y.C. Admin. Code § 20-912. It is not clear from this definition whether the Act applies to employees who are hired in New York City and work entirely elsewhere, or who perform work within New York City but live elsewhere. Given the Act's prior iteration, in which it only applied to employees who performed at least 80 hours of work within New York City, the Court presumes that the Act is intended to apply to individuals who perform work in New York City. The Act does not contain any qualification on its application to employees with respect to where an employee was hired, where the employee's principal place of business is, or where the employee maintains residency. If this understanding is correct, and since the 80-hour threshold was removed, then the Act now appears to apply to all individuals, regardless of where they live, who are hired to perform a job, any part of which – no matter how small – is performed within New York City.
Delta flight attendants work on routes that take them throughout Delta's flight network; that network includes more than 180 daily flights into and out of New York City. Thus, a hypothetical flight attendant may begin his or her day in Los Angeles, work a flight that lands in New York City, and then take off from New York City on another flight bound for Houston. From the point at which the flight attendant's first flight lands to the time when the flight attendant's second flight leaves, the flight attendant is working within New York City. Even though this time may only amount to one hour, and the flight attendant may not have another flight that passes through New York City all year, the Act by its terms applies to that flight attendant's use of paid sick time for the remainder of the year, regardless of where the flight attendant is when he or she uses it. In such a situation, it is not clear why or how New York City has the right to dictate the terms of the employee's contractual employment.
Delta makes this argument in addressing the Act's impact on the dormant Commerce Clause and emphasizes the point in its letter responding to Defendants’ Supplemental Brief in Further Support of their Motion for Summary Judgment [ECF No. 74]. See Mem. of Law in Supp. of Pl. Delta Air Lines, Inc.’s Mot for Summ. J. [ECF No. 31], at 25-31; Nov. 17, 2020 Letter to Hon. I. Leo Gasser [ECF No. 75], at 1-2. Defendants’ response is premised on the 80-hour threshold that the Act used to require, and the DCA's expressed enforcement policy. See Defs.’ Mem. of Law in Opp. to Pl.’s Mot. for Summ. J. [ECF No. 47], at 33-34; Supp. Br. in Further Support of Defs.’ Mot. for Summ. J. [ECF No. 74], at 3. Because the 80-hour threshold was removed from the Act, Defendants can no longer rely on that provision to create a nexus between the Act's application and New York City. Moreover, DCA's enforcement policy is not the law – the Act is – and regardless of what exceptions DCA wants to make, the Act's plain language indicates that it would apply to a flight attendant with only a single, minimal connection to New York City.
It is axiomatic that the Court must address and rule on statutory grounds prior to constitutional arguments. Escambia Cnty., Fla. v. McMillan , 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984) ; Fed. Defs. of N.Y., Inc. v. Fed. Bureau of Prisons , 954 F.3d 118, 134 (2d Cir. 2020). Because the Court can resolve the pending motions on statutory preemption grounds, it refrains from ruling on Delta's contention that the Act violates the dormant Commerce Clause. However, the Court does find that the extra-territoriality analysis applicable to the dormant Commerce Clause analysis is also relevant for the ADA preemption analysis and considers it within that framework to bolster its conclusion that the Act impermissibly relates to a covered airline service.
CONCLUSION
For the foregoing reasons, Delta's motion to strike is DENIED . Delta's motion for summary judgment is GRANTED on the ground that the Act, as applied to Delta's flight attendants, is preempted under the ADA. Defendants’ cross-motion for summary judgment on the same ground is DENIED . Because the Court resolves the parties’ motions on preemption under the ADA, it makes no ruling on any of the parties’ alternative arguments.
SO ORDERED.