Aviation-Related Employment Law

AVIATION-RELATED EMPLOYMENT LAW   Lawyer Pilot Bar Association, March 2, 2011   Stephen F. Danz[1]                  Practicing aviation employment law is strikingly similar to any other type of employment law, but with two major differences. First, removal of a state-court complaint is a real possibility and both defense and plaintiff’s counsel must be intimately familiar with the various forms of federal preemption. Secondly, numerous federal statutes are available for pleading.  These statutes provide specific rights and private causes of action for aerospace-related and aviation-based employees. Fully representing your client’s interests requires a comprehensive understanding of these specialized statutes. Plaintiff’s counsel should consider pleading the fewest number of claims possible to avoid removal. At the same time, diversity of citizenship should be questioned by defense counsel with an eye toward alleging fraudulent joinder of non-diverse defendants.  Given the complex nature of United States employment and labor law and the frequency of which these topics intersect in the aviation world, this article provides a working frame of reference for the aforementioned topics in addition to other relevant litigation issues, including but not limited to privacy concerns, employment offers, employment status and discrimination in the aviation and aerospace workplace.                                                                                                          I.      Employment Law-Based Removal and Preemption   A.    Removal               Removal jurisdiction refers to the right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sits.  28 U.S.C. § 1441 et seq.  Removal occurs when a plaintiff files a case in state court, the claims of which fall within the concurrent jurisdiction of federal and state courts (as discussed in further detail below), and the defendant exercises his right to remove the action to federal court and files a Notice of Removal.  28 U.S.C. §§1446, 1447.  Compliance with statutory procedures automatically ousts the state court of jurisdiction. Id.  Removal requires an independent ground for subject-matter jurisdiction such as diversity jurisdiction or federal question jurisdiction. 28 U.S.C. §§1331, 1332; 42 U.S.C. §1983.    B.     Concurrent Jurisdiction               Does a state court have jurisdiction to hear a federal claim, that is, a cause of action based on federal law?  The fact that a federal claim is involved does not necessarily mean state courts lack power to adjudicate, i.e. some federal claims are within the concurrent jurisdiction of state and federal courts.  Cases that fall within concurrent jurisdiction are those which federal courts have limited subject matter jurisdiction but are not “exclusive” to the federal courts.  DeTomaso vs. Pan American World Airways, Inc., 43 Cal.3d 517, 520 (1987); see United Airlines, Inc. vs. Sup. Ct. (Terry), 234 Cal. App.3d 1085, 1087-1088 (1991).  In fact there is actually a “deeply rooted presumption in favor of concurrent state jurisdiction.”  Tafflin vs. Levitt, 493 U.S. 455, 458-459 (1990).                For example, certain claims arising under the Constitution, laws or treatises of the United States can be filed in federal or state court, such as claims based on federal civil rights acts or federal securities laws, etc.  28 U.S.C. §1331; 42 U.S.C. §1983; Ochoa vs. Sup. Ct. (County of Santa Clara), 39 Cal.3d 159, 173 (1985); Tafflin, supra; Robbins vs. Foothill Nissan, 22 Cal.App.4th 1769, 1780 (1994) (claims against FDIC as receiver of insolvent financial institution.)   In Abdullah vs. American Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999), the Third Circuit ruled that federal aviation safety standards of care preempt state law standards of care but that state law remedies premised on federal standards are not preempted.  Thus even where federal law preempts state law, as discussed in detail below, state courts are not automatically ousted of jurisdiction. If the federal law allows state courts to exercise concurrent jurisdiction over the federal claim, the state court has the power to continue the action and grant whatever relief is available under the federal law.    C.    Preemption   Where federal law preempts state law and vests jurisdiction of claims arising under that law exclusively in federal courts, state courts have no power to adjudicate.  DeTomaso, supra.  There are a few cases which must be filed in federal court, including but not limited to patent and copyright claims (28 U.S.C. §1338(a)); admiralty and maritime claims (28 U.S.C. §1333); claims arising out of bankruptcy proceedings (28 U.S.C. §1334); claims arising under the Sherman Antitrust Act (15 U.S.C. §4); claims under the Securities Exchange Act of 1934 (including Rule 10b-5 actions) (15 U.S.C. §78aa); claims involving activities regulated  by federal labor laws, e.g., the Labor Management Reporting and Disclosure Act (29 U.S.C. §401 et seq.); and certain ERISA actions (29 U.S.C. §1132(e)(1)).  Normally federal preemption of state law is merely a defense to application of state law.  However, in a few instances, notably ERISA and federal labor laws, state law is “completely preempted” and replaced by a federal claim, creating a basis for removal to federal court.    Generally there are two levels of preemption.  The first level of preemption is for purposes of determining which laws (i.e., federal or state law) will apply.  The second level of preemption is for purposes of removability to determine whether a matter should be heard before a federal or state court.      1.      Types of Preemption   a.      Express Preemption: State law is preempted to the extent Congress has expressly stated its intent to supersede state law. Shaw v. Delta Air Lines, 463 U.S. 85, 95 (1983) (Human Rights Law preempted with respect to ERISA benefit plans only insofar as it prohibits practices that are lawful under federal law).  Id. at 108.                     b.  Field or Implied Preemption. Found where Congress must have intended to occupy the field exclusively. Freightliner v. Myrick, 514 U.S. 280, 288 (1995).  National Labor Relations Act (“NLRA”) Sections 7-8 protect certain concerted activities and prohibit defined unfair labor practices. See generally 29 U.S.C. §1488.  Construed to impliedly preempt state law directed either at conduct actually or arguably prohibited by federal law. International Association of Machinists & Aerospace Works, AFL-CIO v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140-148 (1976).   c.    Defensive Preemption. May be asserted in federal or state court. Brueneau  v. Federal Dept. Insur. Corp., 981 F.2d 175, 179 (5th Cir 1992). May not serve as the basis of original federal jurisdiction. (Federal subject matter jurisdiction normally depends on the claims pleaded in the complaint) (“arises under” federal law).   Musson Theatrical Inc. v. Federal Express, 89 F.3d 1244, 1251-1253 (6th Cir. 1996). “A defendant may not defend his way into federal court.” In re Blackwater Security Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006).   d.  Complete Preemption. Preemptive effect of federal law is so complete that it displaces state law and provides the only available remedy. “The test is whether Congress clearly manifested an intent to convert state law claims into federal-question claims.”  Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir. 1993). Complete preemption creates federal removal jurisdiction. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987).  Only a few federal statutes have such extraordinary preemptive effect, such as the Labor Management Relations Act (“LMRA”), Section 301. “Complete preemption and motion” of state law claims because of congressional intent to establish a uniform body of law governing Collective Bargaining Agreement (“CBA’s”).  Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 102-103 (1962); ERISA § 502; see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987).  Additionally the Airline Deregulation Act preempts any state regulation of airline rates, routes or services. 49 U.S.C. §41713(b)   e.  Substantial Federal Question. Federal question jurisdiction provides federal courts with original jurisdiction of all civil claims arising under the Constitution, laws, or treatises of the United States.  28 U.S.C. §1331.  A state law cause of action actually arises under federal law, even though Congress has not provided a federal cause of action, “where the vindication of a right under state law necessarily turn(s) on some construction of federal law.”  Franchise Tax Board of the State of California v. Construction Laborer’s Vacation Trust, 463 U.S. 1, 9 (1983) (citations omitted).  In order to invoke the substantial federal question doctrine, the federal question raised by the state law complaint must be 1.) substantial; 2.) disputed; 3.) of great federal interest; and 4.) resolution of the federal question must be necessary to the resolution of the state law claim.  Id.    The Court in Franchise State Tax Board, supra, held the case was not within removal jurisdiction conferred by 28 U.S.C. §1441 and thus did not reach the merits of the preemption question since the district court lacked the original jurisdiction to remove the case from state court.  The complaint only stated claims under California’s tax and judgment laws which did not include any claim falling under federal question jurisdiction.  Id. at 13.  More specifically the Court held that “a suit by tax authorities both to enforce its levies against funds held in trust pursuant to ERISA-covered employee benefit plan and to declare validity of the levies notwithstanding ERISA is not a creature of ERISA itself nor a suit of which federal courts will take jurisdiction because it turns on a question of federal law.”  Id. at 28.  However the Court did note such a case could “arise under” the laws of the United States giving rise to federal question jurisdiction where the well-pleaded complaint established that its right to relief under state laws required resolution of a substantial question of federal law in dispute between the parties.   Id. at 13.   2.      Important Test of Preemption   The essential question in any aviation employment law case is: Does federal law provide a private right of action? The Court in Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986), held that federal question jurisdiction is not warranted where one of six state common law counts alleging misbranding in violation of the Food, Drug and Cosmetic Act and where no private right of federal action was provided.  The absence of a private federal remedy is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently substantial to conferred federal question jurisdiction. (Id. at 828).   3.      The Effect of Union Membership on Preemption and Removal   The effect of union membership on preemption and removal of certain claims, including but not limited to claims for whistle blower retaliation, wrongful termination, disability discrimination, sexual harassment, assault and battery, false imprisonment, breach of contract, and intentional infliction of emotional distress claims is of paramount importance.  Generally when a Collective Bargaining Agreement (“CBA”) speaks to one of the above-referenced topics, and interpretation of the CBA is required, the matter will be preempted by federal law.   a.       Notable Cases Where Preemption Not Found   Where an employee’s claim involves rights and obligations that exist independently of the CBA there is no need to interpret and enforce the CBA and no federal preemption occurred. Hawaiian Airlines v. Norris, 512 U.S. 246, 256 (holding a claim of wrongful termination in retaliation for whistle blowing activity did not require interpretation of CBA but depended upon purely factual questions concerning the employer’s motive).   Where a CBA is wholly “devoid” of any language regarding proper grounds for termination, interpretation of the CBA is not required and therefore not subject to preemption.  Arnold v. Air Midwest, Inc., 877 F. Supp. 1452, 1461 (D. Kan. 1995) (claim of breach of implied oral employment contract in handbook was not barred by the Railway Labor Act (RLA”) when CBA did not contain a just-cause provision).   A simple reference to a CBA in connection with a “justification” defense does not give rise to preemption of state law tort claims. Gay v. Carlson, 60 F.3d 83, 88 (2nd Cir. 1995).  However, to the extent a discharge can only be wrongful under a CBA, a resolution would necessarily involve interpretation of the CBA and state law superseded. Andres v. Louisville & Nashville R.R. Co., 406 U.S. 320 (1972).   Vague “[n]o discrimination allowed” claims in CBAs do not result in preemption. Saridakis v. United Airlines, 166 F3d 1272, 1277.   Mere similarities between state law discrimination protections and CBA do not require preemption. Miller vs. AT&T Network Systems, 850 F.2d 543, 546 (1988).     b.      Issues Which May Not Lead to Preemption   Sexual harassment. Generally not preempted because the CBA could not be interpreted to permit sexual harassment and the IIED claim does not depend on interpretation of the CBA.  Hirras vs. National RR Passenger Corp, 44 F.3d 273, 278, (5th Cir. 1995).   False imprisonment, assault and battery do not require interpretation of the CBA. McCann vs. Alaska Airlines, 758 F. Supp. 559, 564 (N.D. CA 1991) (company investigator purported to be a law enforcement officer and forced employee to remain for a 3 hour interrogation).   Claims for discrimination based on physical fitness standards or disability discrimination claims are not preempted even if the CBA establishes standards for a position, unless the CBA also provides a framework for employees to challenge determinations based on physical fitness and a mechanism to accommodate disabled workers is present. Espinal vs. NW Airlines, 90 F.3d 1452, 1457 (1996).   Defamation, tortious interference with contract and civil conspiracy has been held not preempted. Trexler vs. Norfolk Southern Ry. Co., 957 F. Supp. 772, 776 (M.D. N.C. 1997); see also Shannon vs. MTA Metro-North RR, 962 F. Supp. 177, 180 (S.D. N.Y. 1997).   Retaliatory Discharge is not preempted since the standard is simply whether the employer acted with retaliatory intent, rather than an interpretation of the CBA.  Davies vs. American Airlines, Inc., 971 F.2d 463, 468 (10th Cir. 1992); see also Hawaiian Airlines at 266, supra.   Public Policy Tort Termination is generally not preempted. See Saridakis at 1278, supra.  Public policy tort termination was also found not preempted by the LMRA.  See Jimeno vs. Mobil Oil Corp, 66 F.3d 1514, 1524 (1995); Deschene vs. Pincie Point Stell Co., 76 Cal.App.4th 33, 42 (1999) (employee allegedly fired for responding to subpoena and giving truthful testimony adverse to employer).  With regard to reinstatement, see Couveau vs. American Airlines, 218 F.3d 678 (9th Cir. 2000) (failure to reinstate following medical leave and refusal of assignment resulting in termination does not require new right to sue letter).               (Case Study: NASA Report, 1994: “After being held on call for nearly 12 hours, and after requesting time off for crew rest, and after the captain, first officer and myself individually indicated it would be unsafe to operate a 6 hour flight from Philadelphia to Oakland, a company supervisor directed us to operate the flight. In the interest of safety, we refused, and now our jobs are in jeopardy….  With no discussion of what was going on [the supervisor] said “I am directing you to operate this flight and I want to know if you will take it.” At first I didn’t know what to say. My first thought was how can I take a flight without a captain and first officer? I told him we had been on call all day. I had been waiting around in my uniform all day and in my opinion it would be unsafe to fly. He asked me nothing about why it would be unsafe.  He said “we have reviewed your rest and we believe you are rested. I am directing you to operate the flight. Will you take it?               After overcoming my disbelief that someone in a leadership position within our organization would direct a crew to operate an unsafe flight, I told him no. He then said “all are released from duty, and I will get back to you later.”              The entire crew was taken off flying for two weeks, the union was brought it, and a letter of warning was placed in the pilot’s files.)               State laws relating to minimum labor standards for the protection of employees generally affect union and non-union employees equally and neither encourages nor discourages the CBA.  Colorado Anti Discrimination Commission vs. Continental Air Lines, 372 US 714, 720 (1963) (race discrimination standards); Sanitation and safety.  Hawaiian Airlines at 256, supra; Unemployment benefits not preempted by LRA (repayment to Unemployment Fund for the amount of unemployment benefits paid to a wrongfully discharged employee whose benefits have reduced a back pay award against the employer. Such repayment is both procedurally and substantively separate from the LRB Action.  Moreno Roofing vs. Nagle, 99 F3d 340, 342 (9th Cir. 1996).   State Drug Testing law not preempted by FAA drug testing per 49 U.S.C. §45102.  (14 C.F.R. Parts 121, 135.). (“Because Congress has neither expressly nor impliedly provided Schmeling with a federal cause of action to enforce the FAA drug-testing laws, … we hold that Schmeling’s suit is not subject to removal under the complete preemption doctrine.”  Schmeling vs. Nordam, 97 F.3d 1336 (10th Cir. 1996).      b.       Issues Which May Lead to Preemption   Claims for Intentional Infliction of Emotional Distress (“IIED”) may be preempted. “Under California law, a prima facie case for Intentional Infliction of Emotional Distress requires [an] employee to prove that [the] airline’s conduct was outrageous. We have repeatedly held that determining whether an employer’s conduct is outrageous requires an interpretation of the terms of the CBA and therefore the claim is not independent. Saridakis at 1278.  See also Pilkington v. United Airlines et al., 112 F.3d 1532, 1539-1540 (11th Cir. 1997) (RLA preempted state law claims for IIED for crossing a picket line and subsequent harassment); Calvert vs. Trans World Airlines, Inc., 959 F.2d 698, 700 (8th Cir. 1992) (IIED arising from employer’s request that plaintiff submit to a psychiatric exam preempted because whether such an exam was appropriate was addressed in the applicable CBA; Newberry vs. Pacific Racing Assoc., 854 F.2d 1142 (9th Cir. 1988) (IIED and breach of implied covenant of good faith were incidental to wrongful discharge and whether discharge was “wrongful” depending on CBA provided ground for discharge).               Drug Testing under Federal Aviation Administration (“FAA”) provisions supersede state law claims challenging federally mandated drug tests given to airline employees if they “cover the subject matter of  regulations adopted pursuant to the FAA.” Drake vs. Laboratory Corp. of America Holdings, 458 F.3d 48, 60-61 (2nd Cir. 2006).   Fraud preempted where employee alleged misrepresentation of seniority rights following transfer. Kollar vs. United Transportation Union, 83 F.3d 124, 126 (5th Cir. 1996).   Overtime Pay and Meal and Rest Period violations of state law are preempted where these issues are covered by a CBA with an interstate carrier: “(S)tate law must yield…lest common terms in bargaining agreements be given different and potentially inconsistent interpretations… .” Fitz-Gerald vs. Sky West Airlines, 155 Cal.App.4th 411, 420 (2007) (flight attendant’s claims for overtime pay and meal and rest break violations).   Time off.  Employee sued for employer’s refusal to accommodate by allowing additional time off each week. Allowing this time off might violate the bona fide seniority rights of other employees under the CBA.  Because interpretation of the CBA was potentially dispositive, the RLA precluded the ADA claim in federal court. Brown vs. Illinois Central RR, 254 F.3d, 654, 661.   Electronic Bulletin Boards. An employer was found liable for a hostile work environment resulting from derogatory statements posted on an internet bulletin board by a female pilot’s co-workers.  It was accessible to all Continental pilots but was provided by an outside vendor.  Held, although an electronic bulletin board might not be physically located at the worksite, it may nonetheless have been so closely related to the workplace and beneficial to the employer that a continuation of harassment on the internet might be regarded as part of the workplace. Moreover, the Court held an employer who has notice that its co-employees are engaged on a work-related forum in a pattern of retaliatory harassment directed at a co-employee has a duty to remedy that harassment.     Additionally defendants who publish defamatory electronic messages, with knowledge that the messages would be published in New Jersey and could influence a claimant’s efforts to seek a remedy under New Jersey’s Law Against Discrimination, may properly be subject to the State’s jurisdiction.  The Court remanded the matter to trial court to determine whether the airline “received a substantial workplace benefit” from the electronic bulletin board such that it was required to remedy the harassment.” Blakey vs. Continental Airlines, Inc., 751 A.2d 538, 551. (NJ 2000).    Railway Labor Act Preemption   Railway Labor Act (“RLA”) preemption, 45 U.S.C. Section 151 et seq., is also another preemptive force for the aviation employment attorney to consider.   Congress’ purpose to promote stability by providing a comprehensive framework for resolving labor disputes and to ensure that disruption to the nation’s transport system is held to a minimum. Hawaiian Airlines at 252, supra.  RLA has been applied to entities that do not operate a rail or air carrier directly, but perform similar functions or support services. For example, common ownership or control, see Service Master Aviation Services, 24 NMB 181 (1997); see also Ogden Aviation Services, 23 NMB 98, 106.  The RLA was first passed in 1926, but made applicable to airlines in 1936.   Another question to consider is: Does the carrier exercise significant influence over hire/fire/supervision and/or training of the employees?  International Total Servs., 16 NMB 44, 49 (1988); for services related to carriers, i.e., airport janitorial, skycap and wheelchair attendants, see Sky Valet, 23 NMB 155, 157 (1996). With regard to repair and maintenance, the crucial question is: Are the services essential to the transport of property? See Delpro Co. vs. Brotherhood Ry Carmen, 676 Fed. 960, 964 (3rd Cir. 1982).  (*Note trucking services are generally not covered by RLA, 45 U.S.C. §151.  Unites Parcel Svc. vs. NLRB, 92 F.3d 1221, 1223 (D.C. Cir. 1996) (governs labor relations in railway and airline).     The RLA seeks to replace bargaining, arbitration and mediation for strikes as a means of resolving labor disputes.  The key question is whether the matter contains “minor” and “major” disputes resolution.  The general rule is major disputes are remediated only after the union has exhausted the RLA’s negotiation and mediation procedures, while barring almost all strikes over minor disputes.  Courts may entertain strikes if the union has not exhausted those procedures.  The RLA also allows employees to sue in federal court to challenge an employer’s violation of the act. Courts can grant reinstatement and back pay, in addition to equitable relief.   A private right of action under RLA is recognized where an employee is allegedly fired in retaliation for union organizing activities.  (The right to organize and bargain provided by 45 U.S.C. §152). Such a claim may be brought directly in federal court and was not a “minor dispute” that must be arbitrated under the RLA because no interpretation or application of the CBA was needed. Fennessy vs. Southwest Airlines, 91 F.3d 1359, 1362 (9th Cir. 1996) (employer allegedly fired employee in retaliation for efforts to replace existing union with a different one).   Minor disputes involve the interpretation or application of collective bargaining agreements concerning rates of pay, rules or working conditions. 45 U.S.C. §153; see also Atchison, Topeka & Santa Fe Ry. Co. vs. Buell, 480 U.S. 557 (1987).  Major disputes seek to create contractual rights, while minor disputes seek to enforce them. Consol. Ry. Corp. vs. Ry. Labor Execs.’ Ass’n, 491 U.S. 299, 302 (1989).  Mandatory arbitration is required under RLA for minor disputes. Only very limited (“among the narrowest known to the law”) of adjustment board findings. Such can only be set aside for failure to comply with the RLA’s procedural requirements or for fraud or corruption. Atchison at 563.   A common test of major vs. minor dispute: Does the complaint seek to create a contractual right (major dispute), or enforce such a right (minor)?  Exhaustion of grievance is not required where the employee seeks to enforce statutory discrimination claims against the employer. The U.S. Supreme Court has emphasized that contractual arbitration is merely an alternative remedy that does not preclude court enforcement of a federally-protected right. Alexander vs. Gardner-Denver Co., 415 U.S. 36, 49-50 (1974) (Title VII); Barrentine vs. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 745 (1981) (FLSA).  Caveat: If the CBA “contains an arbitration clause that “clearly and unmistakably covers all federal causes of action arising out of employment, these must be grieved.”  Wright vs. Universal Maritime Service et al., 525 U.S. 70, 80 (1998).  A waiver is clear and unmistakable where it explicitly incorporates the statutory anti-discrimination requirements, identifies the statute by name and requires arbitration.  Safrit vs. Cone Mills Corp., 248 F.3d 306, 308 (4th Cir 2001) (“employer would abide by all Title VII requirements and that ‘unresolved grievances’ arising under this Section are proper subjects for arbitration”).  (However, such arbitrations should not be given res judicata or collateral estoppel effect in a subsequent lawsuit to enforce federal statutory rights. McDonald vs. City of West Branch, Mich., 466 U.S. 284, 292 (1984) (Section 1983 claim, but same rule presumably applies to Title VII actions).   Additionally Federal Employers Liability Act (“FELA”) has been held not preempted by RLA because FELA designed to provide minimum substantive guarantees to individual workers independent of any obligations under a CBA. Pratt vs. Union Pac. R.R., 168 Cal.App. 4th 165, 177 (2008).  Claims under the Rehabilitation Act of 1973 (29 U.S.C. § 794) alleging discrimination focused on a physical handicap are not barred by a prior RLA arbitration award because the arbitration procedure prescribed under the RLA “should not be the sole forum for final resolution of a Rehab Act claim.”  Bates vs. Long Island R.R. Co., 997 F.2d 1028, 1034 (2nd Cir. 1993).                                                                                                                                                                II.      Employee Status   A.    Employee vs. Independent Contractor?   Issues of employment rights start with a determination that an employment relationship was intended and actually existed at the time of the right sought to be enforced existed.  Prior to asserting any employment-based right, counsel should determine whether an individual is an employee or an independent contractor.               The Fair Labor Standards Act (“FLSA”) applies to “any individual employed by an employer.  29 U.S.C. §203 (e)(1); see Patel vs. Quality Inn South, 846 F.2d 700, 702 (11th Cir. 1988).  Independent Contractors are not employees. Donovan vs. Sureway Cleaners, 656 F.2d 1368, 1370 (9th Cir. 1981).  Moreover various state laws also may have an effect on whether one is considered an employee or an independent contractor.    In Murray vs. Principal Financial Group, Inc., No. 09-166644 (9th Cir. 2010), it was held the court must evaluate the hiring party’s right to control the manner and means by which the product is accomplished.  To determine whether one is an employee or an independent contractor, factors considered include: skill required, source of instruments and tools; location of the work; duration of the relationship between the parties; right of hiring party to add additional assignments; extent of the worker’s discretion over when and how long to work; method of payment; worker’s role in hiring assistance; whether the work is part of the hiring party’s regular business; whether the hiring party is in business; benefits (if any) available to the worker; and tax treatment of the worker.  Id. (quoting the factors as set forth in Nationwide Mutual Insurance Co. vs. Darden, 503 U.S. 318, 323 (1992)).     To determine whether an individual is an “employee” under the FLSA, courts look to the “economic reality” of the parties’ business relationship as a whole.  The factors that are considered to determine whether one is an employee or an independent contractor includes: degree to which employer has the right to control the manner in which work is performed (perhaps operations manuals which must be adhered to); degree to which the worker’s opportunity for profit or less depends upon the worker’s managerial skill; worker’s investment in equipment or materials or the hiring of helpers; whether the service rendered requires a special skill; degree of permanence of the working relationship; and whether the service rendered is an integral part of the employer’s business.  Donovan at 1370.   (*Note: Volunteers on search and rescue missions (“SAR”), even though not “employees” under the state’s Labor Code,  may have rights to workman’s compensation protection by virtue of specific state legislation.  Death or injury while on such missions may entitle the injured volunteer pilot/searcher to workman’s compensation coverage.  The Civil Air Patrol provides workman’s compensation coverage to volunteers pursuant to 5 U.S.C. §8141. See also, Title 19, California Code of Regulations Section 2570, et seq.); Code of Virginia Title 65.2 -101Workman’s Compensation.   Whether employee or independent contractor, always consider the possibility of naming a third party, possibly for tortious interference in future economic relations, civil conspiracy, aiding and abetting a violation of the law (specifically provided in many discrimination statutes), negligent or intentional infliction of emotional distress, invasion of privacy and slander (occurs many times in drug testing cases). For removal purposes, consider whether the residency of the third party will create diversity jurisdiction or cause removal pursuant to the Feres Doctrine (naming federal employee allows government to defend and remove).   B.     Non-crew Airline Pilots: Employee or Passenger?              Are dead-heading pilots “employees” or “passengers?”  Intensive factual analysis requires consideration of numerous factors, including: whether the pilot is required to be on board or is just “hitching a ride;” whether the pilot is given a “passenger” ticket; and whether the pilot is able to accrue duty hours for trip.  Additionally courts look to whether the CBA, if any, speaks to the issue.  Other factors considered involve whether the employee is on the trip for the “primary purpose” of fulfilling employment obligations.  In re Mexico City Air Crash of October 31, 1979, 708 F.2d 400 (9th Cir. 1983).  In Sulewski vs. Federal Express, Corp., 933 F.2d 180 (2nd Cir. 1993), the Court held: “….in view of his assignment to the flight, it cannot be said that Sulewski boarded the aircraft in accordance with a contract of carriage; his pre-existing contract of employment and his work assignment were the reason he boarded the flight.”  Id. at 185.  In another case several pilots were on-board the ill-fated TWA Flight 800 when it crashed on July 17, 1996.  Two crewmen were assigned to the flight as deadheading crew members and then as the flight crew for its second leg, Paris to Rome.  TWA required them to be on board so they could immediately resume their duties on the second leg. In fact, they were not allowed to get to Paris by any other means. In re Air Crash off Long Island, New York, on July 17, 1996, 30 Fed. Supp. 2d 633 (S.D. N.Y. 1998).   In conclusion, if the determination is made that the crew member is acting outside the course and scope of employment at the relevant time, federal and state statutes (including worker’s compensation immunity) that are tied to employee status might not apply.   (Case study: Captain Al Haynes, Captain of United Flight 232, that crashed at Sioux, Iowa on July 19, 1989, had several dead-heading UAL personnel on board. A flight attendant on board “helped out” during the emergency and miraculous landing, and Captain Denny Fitch, an instructor pilot in the DC 10, did the same in the cockpit by manipulating the power levers on the two remaining engines. After kneeling behind the power levers for awhile, he transferred to the regular co-pilot’s right seat to continue the effort, while the regular co-pilot moved to the seat behind the captain. Were the affected personnel crew employees or passengers at the time of the incident?)                                                                                                                                        III.      Disability and Discrimination   Several issues may arise in the aviation context with regard to the right to privacy in pre-employment medical exams and background checks.  Moreover said issues may also give rise to, and serve as a basis for, employment discrimination claims.          A.    Employment Offers   An employer may require a medical exam or inquire about an applicant who has been offered a job but who has not started work, provided that all entering employees in that job category are subject to the same requirements without regard to disability.  42 U.S.C. §12112(d)(3); 29 C.F.R. §1630.14(b).  Pre-employment exams are authorized under the American with Disabilities Act of 1990 (“ADA”) only if there is a “real job offer.”  The employer must have completed all non-medical components of the application process. Leonel vs. American Airlines, Inc., 400 F.3d 702, 708-709 (9th Cir. 2005) (must be able to show background checks could not have been completed before the medical exam; held, not a “real job offer”).   B.     Background Checks   Numerous background checks are mandated by law.  With regard to personnel who have unescorted access to any areas on the airport that is controlled for security reasons, see FAR, Part 107, Section 209, C.F.R. 14, which requires ten year employment verification, five year criminal and a pre-employment drug test.  Transportation Security Administration laws such as Aviation Worker’s Identification Credentialing Program covers those individuals who apply for or are issued personnel identification media by an airport operator, which may include persons seeking airport security credentials authorizing unescorted access to air operations areas (AOA), sterile areas, secured areas, and Security Identification Display Areas (SIDA).  The Program may also cover individuals seeking airport credentials to work or provide services in the public areas of the airport.  Moreover post-offer and/or pre-employment exams must be given to all employees but there must be a “real job offer” (with regard to pre-employment exams, a “real job offer” must have been made).  Leonel vs. American Airlines, Inc, supra.   C.    Disability and Disability Discrimination                         In order to make a claim of disability discrimination, one must be determined to be a “qualified individual” with a disability.  See generally 42 U.S.C. §12132.  Employers may establish physical criteria such as height, build, etc.  Sutton vs. United Airlines, Inc., 527 U.S. 471, 489 (1999).  The ADA adds specific requirements that any qualifications standard, employment test or selection criterion related to uncorrected vision must be shown to be job-related to the position in question and consistent with business necessity. 42 U.S.C S §12113.  If the applicant possesses no medical certificate if required for a job, the applicant is not a qualified individual. Bay vs. Cassens Transport Co., 212 F.3d 969, 974 (7th Cir. 2000) (truck driver who lacked necessary certification from DOT is not a “qualified individual with a disability”).  See also Sutton, supra, with regard to correctable disability (criteria related to vision must be shown to be job-related and consistent with business necessity).   With reasonable accommodation claims, the burden of proof is initially on the employee.  However the burden then shifts to the employer to demonstrate the accommodation would have caused undue liability.  Moreover the burden on the employee to avoid summary judgment is light.  An employee need only show that an accommodation “seems reasonable on its face, i.e., ordinarily or in the run of cases.” US Airways, Inc. vs. Barnett, 535 U.S. 391, 400 (2002).               Additionally inconsistencies in medical information (i.e., return to work) and later request for leave (e.g., FMLA) may allow an employer to demand lab tests and specific medical information.  Case in point: an employee bus driver underwent a medical exam as required by state law and listed ‘sinus’ and ‘some back pain.’  The following month he sought FMLA leave for being HIV positive. The Court held that demands for disclosure of the results of his HIV-related lab tests were allowed. Gajda vs. Manhattan & Bronx Surface Transit Operating Aut., 396 F.3d 187, 189 (2nd Cir. 2005).             Pilots’ age discrimination action stayed pending arbitration outcome as claim was made that age 60 pilots should be allowed to “bump” less senior flight offices. Tice vs. American Airlines, Inc., 288 F.3d 313, 317 (7th Cir 2002).  However, the RLA did not preclude an airline pilots’ lawsuit for sex and disability discrimination in violation of the ADA and Title VII.  While claims did require the court to “consider” applicable CBA provisions, no interpretation was required.  Carmona vs. Southwest Airlines Co., 536 F.3d 344, 349 (5th Cir. 2008).   Family Rights Act Preempted by the Labor Management Relations Act. Employer allegedly violated the California Family Rights Act (“CFRA”, analogous to FMLA) by refusing to pay an employee sick pay while she was on leave. In dispute was whether employer had the right to verification of the injury based on the CBA, and the CFRA claim was thus preempted by Section 301 of the Labor Management Relations Act (“LMRA.”)  DFEH vs. Verizon California, 108 Cal.App.4th 160, 171 (2003).   Whether an airline could require an employee pilot to submit to an independent medical exam before returning from disability leave was a “minor” dispute over which federal court has no jurisdiction. Airline Professionals Assoc, Teamster Local Union 1334 vs. ABX Air, Inc., 400 F.3d 411, 415 (6th Cir. 2005).                                                                                              IV.      Laws with Special Relevance to Aviation Employment   1.                  Pilot Records Improvement Act of 1996, 49 U.S.C. §44703(h)-(j), as amended, FAA Form 8060-10 (10/05). Public Law 104-264 Title VI requires employers who operate under F.A.R. 135 or 121 to evaluate certain records. (FAA certifications, ratings, medical, enforcement, previous employer, last ten years where applicant worked as a pilot, driving record last five years).   2.                  The Privacy Act of 1974, 5 U.S.C. § 552a, as amended. Most aviation-related privacy issues arise in drug testing cases. Random drug testing without suspicion of wrong doing are generally allowed of federal employees. National Treasure Union vs. Van Rab, 485 U.S. 656, 665 (1989). The federal government may not require federal contractor job applicants to disclose sensitive personal matters if the job is low level. Nelson vs. NASA, 530 F.3d 885 (9th Cir. 2008).   3.                  Wendell H. Ford Aviation Investment and Reform Act for The 21st Century, (“AIR-21”) Public Law 106-181.  Provides whistle blower protection for employees of air carriers who notify the Department of Labor (”DOL”) that the employer is violating a federal law relating to air carrier safety.  A reasonable but mistaken belief that prohibited activity occurred entitles the employee to protection. Complaint to the DOL must be in writing, though no particular form required. You may file such a claim on behalf of your client, The time limit is 90 calendar days from the notice of final decision to impose discipline.  OSHA will investigate and determine if a violation occurred.  After the rendering of decision, either side may file a request for a hearing within 30 days.  If OSHA determines the complaint has merit, a preliminary order will issue and may provide for reinstatement, back pay, compensatory damages, promotion, front pay and other equitable remedies including, but not limited to, re-hire and/or loss of overtime and benefits and attorney fees.  Any recommended decision may be appealed to an Administrative Review Board (ARB). Then, an appeal may be had the U.S. Court of Appeals. (*Consider whether reporting could lead to criminal charges against employee.  Continental Airlines found criminally guilty of involuntary homicide for crash of Concorde).   4.                  Federal Employee’s Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”).  28 U.S.C. §2679.  The law was intended to overturn the Supreme Court’s January 1988 decision in Westfall vs. Erwin, 484 U.S. 292 (1988), which greatly expanded the potential liability of legislative and judicial employees as well as employees of the executive branch. The Westfall Act mandates removal for personal injury, wrongful death and property damage against employees of the government for acts within the scope of employment. Such requires certification by the Attorney General.  28 U.S.C. §2679(d)(1).                  5.         Airline Deregulation Act of 1978 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 any air carrier. 49 U.S.C. §41713(b)(1) (Pub.L. 95-504).  It provides employees with protection from retaliation for whistle blowing based on any actual or alleged violation of federal air safety standards. 49 U.S.C. §§40101, 40102.  This act preempts state unfair business practices statutes because the state law claims would impose economic regulation on airlines. Morales vs. Trans World Airlines, 504 U.S. 374, 388 (1992) (class action based on frequent flier program); In re Jetblue Airways Corp Privacy Litigation, 379 F. Supp. 2d 299, 315-316 (E.D. N.Y. 2005) (ADA preempts action brought under California Unfair Business Practices Act); Morales at 388-389 (rationale is that unfair business practices laws impose economic regulation on airlines; see also Fitz-Gerald at 421-423, supra).  However the Airline Deregulation Act does not preempt state law discrimination claims by air carrier employees. Botz vs. Omni Air Int’l, 286 F.3d 488, 496 (8th Cir. 2002).  Nonetheless, in Branche vs. Airtrain Airways, Inc., 342 F.3d 1248, 1262-1263 (11th Cir 2003) the court stated “we are mindful that preemption should not be lightly inferred in areas such as employment law.”               6.         Drug Tests Mandated by Federal Regulations. Department of Transportation (“DOT”) as authorized by the Omnibus Transportation Employee Testing Act, 49 U.S.C. §5331, requires drug and alcohol testing of employees in “safety-sensitive” positions in the transportation industries and expressly preempts conflicting states laws.  See 49 C.F.R. §382.109.  An employee fired for failing federally required drug tests cannot maintain a wrongful discharge cause of action under state law. Williams vs. UPS, No. 07-6035 (10th Cir. 2008).               7.         Numerous federal statutes designed to protect whistle  blowers (non-aviation specific).  29 U.S.C §3729 et seq.  (Federal False Claims Act, 29 U.S.C. § 3721).   8.         Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) (Reporting financial irregularities to SEC).   9.         Sarbanes-Oxley Act of 2002 (Pub.L. 107-204, 116 Stat. 745, enacted July 30, 2002), set new or enhanced standards for all U.S. public company boards, management and public accounting firms regarding corporate responsibility, oversight and disclosure).   10.       Stored Communications Act (“SCA”) (18 U.S.C. §§2701-2712), sets forth a system of statutory privacy rights for customers and subscribers of computer network service providers.  In Konop vs. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), cert. denied 537 U.S. 1193 (2003), a pilot maintained a website on which he posted bulletins critical of the airline. He limited access to the site by limiting its use to certain individuals, mostly pilots. Two of these authorized users gave the airline’s vice president permission to use their login information.  The Court held Hawaiian Airlines violated that SCA because there was no evidence that either of the authorized employees had ever accessed the site themselves and thus were not “users” who could authorize the airline’s access.    11.       Electronic Communications Privacy Act of 1986, 18 U.S.C. §2510. (Prohibits accessing a restricted or password-protected site without consent).                 12.       Civil Rights Act of 1964 as amended by the Equal Employment Opportunities Act of 1972, (Pub.L. 88-352, 78 Stat. 241, enacted July 2, 1964), prohibits discrimination on the basis of sex ,race, religion, sex, national origin, disability, in hiring, promoting, and firing; prohibits discrimination in hiring, promoting, firing, setting wages, testing, training, apprenticeship, and all other terms and conditions of employment.   13.       Age Discrimination in Employment Act (“ADEA”) (Pub. L. No. 90-202, 81 Stat. 602 (Dec. 15, 1967), 29 U.S.C. §621-634), prohibits employment discrimination against individuals over age forty and prohibits employers from imposing a mandatory retirement age.               14.       Americans with Disabilities Act of 1990 (“ADA”) (Pub.L. 101-336, 104 Stat. 327, enacted 1990-07-26)42 U.S.C. §12101), prohibits discrimination against individuals with protected disabilities. Substantial limitation of one or more major life activities.  Must be a “qualified individual” and employer must have at least 15 eeemplo.               15.       Immigration Reform and Control Act of 1986 (“IRCA”) (Pub.L. 99-603, 100 Stat. 3359), prohibits employers from hiring, recruiting, referring for a fee, or continuing to employ anyone who is not eligible to work in the U.S.   16.       Executive Order 11246 requires contractors to develop affirmative action programs with specific goals and timetables for selecting, training and promoting minorities and women.  See also The Vocational Rehabilitation Act of 1967, 29 U.S.C. §791 and amendments, and the ADA, requiring government contractors to employ and promote individuals with disabilities. Vietnam Era Veteran Readjustment Assistance Act requires employers with government contracts in excess of $10,000 to promote and employ disabled veterans and minorities.               17.       Occupational Safety and Health Act of 1970 (“OSHA”) (29 U.S.C. §651 et seq.).  See also AIR 21, supra, under Department of Labor re whistle blower protection for airline employees).               18.       Fair Labor Standards Act of 1938 (“FLSA”) (as amended, Pub.L. 81-393, 63 Stat. 910, 29 U.S.C. §201 et seq.), establishes overtime and minimum wages. “Compensatory” time restricted.               19.       Walsh-Healy Public Contracts Act (“PCA”) (41 U.S.C. §35 et seq.), requires employers with federal contracts to pay overtime for work done in excess of 8 hours per day.               20.       Davis-Bacon Act of 1931 (“DBA”) (40 U.S.C. §§3141-3148), requires payment of prevailing wages based on geographic area.               21.       Worker Adjustment and Retraining Notification Act (“WARN”), (Pub.L. 100-379, 29 U.S.C. §210l, et seq.), requires employers of more than 100 employees to give 60 days’ notice of plant closing or pay wages for that time period.              22.       Civil Service Reform Act of 1978 (“CSRA”) (Pub.L. 95-454, 92 Stat. 1111), gives federal government employees’ rights identical to private sector employees covered by the National Labor Relations Act, except: 1.) federal employees do not have the right to strike, and; 2) CBAs must contain grievance procedures.              23.       Employee Polygraph Protection Act, 29 U.S.C. §2000(2).  One court has interpreted this law to prohibit employers from “requesting or suggesting” a polygraph test. Pokey vs. Transteers Corp, 404 F.3d 264, 1266 (11th Cir. 2005).    (Case Study: A major airline refuses to hire employees over 40 since they would not have enough years to progress to Captain. Age discrimination or legitimate BFOQ?)   V Referral Services   American Bar Association Forum on Air and Space Law 750 North Lake Shore Drive Chicago, IL 60611   Aircraft Owner’s and Pilots Association Legal Referral Servic Phone: (800) 872-2672 Website: www.aopa.org/legalservices   National Whistleblower Legal Defense and Education Fund PO Box 3768 Washington, DC 20027 Phone (202) 342-1903 E-mail: [email protected]   Government Accountability Project West Coast Office-Intake Coordinator 1511 3d Ave. Suite 321 Seattle, WA 98101 Phone (206) 292-2850 E-mail: [email protected]   National Employment Lawyers Association 44 Montgomery Street Suite 2080 San Francisco, CA. 94104 Phone: (415) 296-7629; (415) 677-9445 (fax)   1090 Vermont Ave. NW Suite 500 Washington, D.C. 20005 Phone: (202) 898 2880; (866) 593-7521 (fax)   Equal Employment Opportunity Commission 1801 L Street NW Washington, D.C. 20036-3811 Phone: (202) 663-4264   [1] Special Thanks to LPBA member Doug Griffith and Danz & Associates research attorney Melanie Porter for their incredible help in preparing this article. Thanks Team!