Following the Supreme Court of the United States’ decision not to hear Alaska Airlines’ appeal to a February 2021 ruling in which Virgin America flight attendants were awarded damages for not receiving California-mandated rest and meal breaks, overtime pay, and accurate wage statements the case is almost closed. Almost.
On August 18, 2022, Berstein v. Virgin America returns to the same Court and Judge that issued the original summary judgment, and the Plaintiffs, former Virgin America flight attendants, are asking the Court to reinstate the award a later appellate court removed/denied or amended.
As detailed above, Virgin made no argument on appeal that it complied with California’s protections for overtime, the provision of meal and rest periods, the provision of compliant wage statements, or the payment of waiting time penalties. Accordingly, there is nothing more for this Court to do with respect to those claims but to affirm its prior judgment.
The Plaintiffs lawyers are also seeking reinstatement of penalties that were removed on appeal citing that Virgin America (now Alaska Airlines) knowingly committed some offenses, and therefore, should still be liable. One such example is described in a filing made for August 18 under the wage statement section:
Whenever a flight attendant worked more than 37.5 hours in the first half of a month, Virgin did not pay for this time worked until the 15th of the following month—almost three weeks later than permitted. Dkt. 225 p. 19. As this Court has already found, Virgin’s failure to issue compliant wages and wage statements “are part of a centralized policy,” further underscoring the intentional and knowing nature of the violation.
These filings, along with the fact that a hearing date is currently set for August 18, 2022, makes Alaska Airlines’ statements during their live Q&A sessions that only “$500,000” was to be paid out to former Virgin America Flight Attendants and 75% of which is to be paid to the State of California simply untrue. A ruling on this hasn’t yet been made. Further, the suit as it stands today awards much more than $500,000 to Virgin crews.
Failure to Pay Overtime. The total damages and restitution for the Class and Subclass for Virgin’s overtime violations remains $6,324,592, as in the original judgment. For August 18, Plaintiffs lawyers argue interest should be paid on this amount, as it is still unpaid to crews. The new prejudgment interest on this amount, calculated at 10% through July 28, 2022 (the scheduled hearing date of this motion), totals $4,829,000.
Failure to Provide Meal Periods. The total damages and restitution for the Class for Virgin’s meal period violations remains $190,525, as in the original judgment. The new prejudgment interest on this amount, calculated at 7% through July 28, 2022, totals $92,723.
Failure to Provide Rest Periods. The total damages and restitution for the Class for Virgin’s meal period violations remains $410,841, as in the original judgment. The new prejudgment interest on this amount, calculated at 7% through July 28, 2022, totals $199,941.
Failure to Provide Accurate Wage Statements. The total statutory penalties for wage statement violations for the Class and Subclass remains $4,398,600, as in the original judgment.
Waiting Time Penalties. The total statutory penalties for waiting time violations remains $2,306,210, as in the original judgment.
It’s important to note that when payment is finally calculated and made to the “Class” of crews, there are actually three classes of flight attendants:
Class: All individuals who have worked as California-based flight attendants of Virgin America, Inc. at any time during the period from March 18, 2011 (four years from the filing of the Original Complaint) through the date established by the Court for notice of certification of the Class (the “Class Period”).
California Resident Subclass: All individuals who have worked as California- based flight attendants of Virgin America, Inc. while residing in California at any time during the Class Period.
Waiting Time Penalties Subclass: All individuals who have worked as California-based flight attendants of Virgin America, Inc. and separated from
their employment at any time since March 18, 2012.
A single flight attendant may find themselves in more than one class based on their career with the company, ongoing employment, termination or resignation date, and state of residency during the given period of time. For example: A flight attendant who worked at Virgin America from 2011 through 2015 (the class was certified in 2016) who was a California resident, but also quit in 2015 is in all three classes. Another example: A flight attendant still employed with Alaska Airlines who does NOT reside in California (but is California based) would fall in only the first class.
In regards to payment, those still employed by Alaska Airlines wouldn’t be eligible for Waiting Time Penalties. This penalty payment is issued to those who are no longer with the company because under California law the penalty is assessed only when an employer willfully fails to pay in accordance with Labor Code Sections 201, 201.5, 202, or 202.5, any wages of an employee who quits or is discharged. Since those who have quit or resigned never received an accurate final paycheck, they will receive the money set aside for waiting time penalties, and those still employed by Alaska will not.
Any “official” indication that the case is “closed,” is simply untrue. We’ll know more after August 18, 2022. All of the filings on behalf of the Plaintiffs and the Defendant on the docket for August 18, 2022 can be read here:
2022 Supplemental Expert Report of David Breshears | Plaintiffs’ Notice of Motion to Amend the Judgment_ Memorandum of Points and Authorities in Support Thereof | Plaintiffs’ Reply Brief ISO Mtn to Amend the Judgment | Decl. of V. Estevez ISO Defs’ Opp. to Motion to Amend Judgment | Defendants’ Opp. to Pltfs’ Motion to Amend Judgment
