The FAA is seeking to block state and local governments from setting meal and rest period requirements for flight crews and flight attendants, asserting that those breaks are adequately covered by federal law.
According to a notice of proposed rulemaking (NPRM) published in the Federal Register this week, the agency would add language to parts 117 and 121 that clarifies the federal preemption of state and local laws governing these rest periods. Whereas previous rulemaking has centered on crew breaks between shifts, the new proposal tackles breaks during duty, including while flying.
Per the Department of Labor, there are 21 states that set meal period requirements for private sector employees, seven of which also have rest period requirements. At issue is whether those rules cover flight crews and flight attendants.
The FAA in its NPRM argued that a “patchwork” of state and local break requirements violates the Airline Deregulation Act (ADA) of 1978, which prohibits any law that creates a “significant impact” on airline prices, routes, or services. Federal preemption, it said, would create uniform requirements across states that reduce operational disruptions for carriers.
However, federal district and appellate courts in recent years have come to the opposite conclusion. Flight crews and flight attendants who have sued airlines over violations of state or local break requirements have often prevailed, allowing them to claim damages.
The FAA in the NPRM said that “recent litigation” spurred its rulemaking—“most notably” a pair of decisions handed down by the courts in 2021.
What the FAA Proposes
The FAA in a 2022 final rule changed its requirement for scheduled rest periods for flight attendants assigned to duty periods of 14 hours or less, raising it from as low as eight hours to at least ten. This week’s proposal addresses break requirements during rather than between shifts.
One rationale provided by the agency is that fragmented state and local rules are untenable for carriers. It said such a framework may require them to staff additional flight attendants, raise costs, or remove passengers from flights, leading to operational impacts and violating the 1978 ADA.
The FAA does not propose any new federal laws regarding aircrew break requirements. Instead, it argues that the status quo of “rules about duty periods, collective bargaining agreements (CBA) reached between air carriers and labor unions, and…specific air carrier crew resource management procedures” adequately strikes a balance between aviation safety and crew health.
Notably, the proposal would require Part 121 certificate holders to ensure that flight attendants remain available for safety duties—including responding to medical emergencies or dealing with unruly passengers—during their breaks. The FAA contended that it mitigates fatigue by regulating rest between rather than during shifts.
“The primary mission of flight attendants is to ensure safety, a role that is undermined if a flight attendant is legally ‘off-duty’ during an emergency,” the agency said.
However, the regulator also proposes that carriers ensure flight attendants have enough time to eat, drink, or use the restroom. Other employees covered by state and local rules receive uninterrupted meal and rest periods.
Comments on the proposal are due September 4, after which time the FAA may modify it.
Why Now?
The FAA specifically called out two legal rulings as the basis for this week’s proposal.
In 2021, the 9th U.S. Circuit Court of Appeals held that California’s meal and rest requirements for flight attendants are not preempted by the ADA or other federal laws. The ruling came after California-based flight attendants sued Virgin America over failing to meet the state’s mandates, which include 30-minute meal breaks for employees who work more than five hours. As a result, flight attendants were allowed to pursue claims.
Alaska Airlines acquired Virgin during the case, Bernstein et al. v. Virgin America, and became a codefendant. The carrier appealed the decision to the Supreme Court, which declined to review it. Alaska later secured an Association of Flight Attendants-backed aircrew exemption and backtracked on threats to close its California crew bases over the decision. However, it failed to secure a similar exemption in Washington state.
Following the case, California in 2023 exempted flight attendants from state break requirements when they are covered by certain Railway Labor Act collective bargaining agreements (CBAs). The FAA in the NPRM noted that not all airlines are covered by these CBAs.
In another 2021 ruling referenced by the FAA, Wilson v. SkyWest Airlines, the U.S. District Court for the Northern District of California made a similar finding. It likewise sided with flight attendants who sued SkyWest, reiterating that federal laws do not preempt state or local rules.
In another case, which the FAA did not cite, American Airlines in 2023 reportedly settled with California flight attendants, who had sued over alleged wage and meal break violations, for about $24 million.
Cementing the federal preemption of these state and local laws will likely be cheered by airlines who have contended with lawsuits from unhappy personnel.
The proposal may also face pushback from unions representing flight crews and flight attendants. In the Bernstein case, the Association of Flight Attendants filed a friend of the court brief urging the court to side with Virgin flight attendants.
“Instead of preemption, AFA pushed the airlines to resolve the operational challenges of meal and rest law through a legislative fix that would codify our rights to bargain over these provisions,” the union wrote in a 2022 news release.