Bernstein v. Virgin Am., Inc., 2021 WL 686281 (9th Cir. 2021)

Approximately 25% of Virgin’s flights were between airports in California, and approximately 75% of Virgin’s flight took off or landed at a non-California airport, but the vast majority of those flights retained some connection to California (i.e., arrived in or departed from an airport in California); members of the class spent approximately 31.5% of their time working within California’s borders.  Virgin disputed that it is subject to California law, but did not contend that any other state’s labor laws ought to apply to it either.  The district court certified the class action and granted summary judgment to the flight attendants as to most of their wage/hour claims against Virgin.  The Ninth Circuit held that the dormant Commerce Clause permits application of California labor law in the context of this case.

The Court reversed the district court’s summary judgment in favor of the flight attendants on their claims for minimum wage and payment for all hours worked, but held that California overtime rules did apply to the class and that the class’ meal and rest claims were properly adjudicated in favor of the flight attendants, as were their clams for wage statement violations and waiting time penalties.  Finally, the Ninth Circuit held that Virgin was not subject to the “heightened penalties” of the Private Attorneys General Act (PAGA) because it was not notified by the Labor Commissioner or any court that it was subject to the California Labor Code until the district court partially granted plaintiffs’ summary judgment motion in this case.  See also Ward v. United Airlines, Inc., 986 F.3d 1234 (9th Cir. 2021) (federal law does not preclude California from applying its wage statement law to airline pilots and flight attendants); International Bhd. of Teamsters v. Federal Motor Carrier Safety Admin., 986 F.3d 841 (9th Cir. 2021) (federal law preempts California meal and rest break rules as applied to property-carrying commercial motor vehicles).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the Co-Chair Emeritus of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law…

Anthony J. Oncidi is the Co-Chair Emeritus of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.