DOL Issues Final Rule On FMLA Coverage For Flight Crew

On February 6, 2013, the U.S. Department of Labor ("DOL") published its Final Rule on the treatment of airline flight crews under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"). The rules were issued pursuant to the Airline Flight Crew Technical Corrections Act, Pub. L. 111-119 (Dec. 21, 2009) (the "AFCTCA"), a statute enacted in recognition that existing rules on FMLA coverage did not adequately account for the manner in which flight crews were paid, leaving them without FMLA rights because they did not reach the threshold of 1,250 hours per year necessary for FMLA coverage. The rules take effect on March 8, 2013.

Unfortunately, DOL's final rule reflects a clear misunderstanding of how flight crews are scheduled and compensated, creating a rule that is likely to result in substantial confusion and litigation and that, if applied literally, would give airline flight crews a significantly lower threshold for FMLA coverage and a higher entitlement to leave than other employees. Moreover, while DOL accepted the airline industry's position that leave should not be available for less than a day and that airlines and railroads have no obligation to return an employee to work where it is "physically impossible" to do so, DOL's discussion of these issues raises potential conflicts between DOL's view of a carrier's obligations under FMLA and the terms of existing collective bargaining agreements that would otherwise govern duty assignments in this circumstance.

Compensation of Flight Crews and FMLA Coverage

Airline flight crews are typically compensated based on "credit time," a concept that incorporates both "flight time" and "duty time" and, under many contracts, trip time or other factors. Credit hours are the basic currency of flight crew compensation and do not necessarily bear any direct relationship to hours flown or duty hours. "Flight time" is typically determined from the time the aircraft departs until it "blocks in" at its destination, while "duty time" is the period between when a crew member reports to work, generally 30 to 60 minutes before the first flight departure, and is released from any further obligations to the carrier following the last flight of the period. Credit hours are based primarily on flight time, but where the duty period does not include a sufficient amount of flight time, the crew member may also be entitled to compensation based on what are called "rigs," a ratio of flight time to duty or trip time. For example, if the carrier had a 1:2 duty rig, the crew member would be entitled to credit hours for the greater of flight hours or 50 percent of duty hours. If a 12-hour duty period included eight flight hours, the crew member would receive eight credit hours. If the duty period included only four flight hours, the crew member would be paid for six credit hours. Some contracts also include "trip rigs," which set forth a similar ratio of flight hours to "time away from base," and may result in increased credit hours for the trip.

Moreover, pilot and flight attendant agreements typically include a "guarantee" of a minimum number of hours per month, typically ranging between 65 and 80 hours per month, with guarantees almost always stated in terms of credit hours. For example, a pilot or flight attendant on reserve status could go an entire month without being assigned to any trip but would be entitled to payment at the guaranteed rate. Similarly, a pilot or flight attendant might have a duty period of 12 hours but have no assignments that could fairly be described as "work" for several hours during the duty period, or an entitlement to credit where a flight was cancelled and the crew member was released from duty.

Enacted in 1993, FMLA requires that an employee work at least 1,250 hours during the prior 12-month period to qualify for FMLA rights, a number that reflects 60 percent of a typical full-time employee's schedule of 40 hours per week, or 2,080 hours per year. While the legislative history of FMLA indicates that Congress did not intend to exclude airline flight crews from FMLA rights "simply because of their industry's timekeeping methods," 136 Cong. Rec. H2198 (daily ed., May 10, 1990), the requirement that an employee work at least 1,250 hours during the period year effectively excluded many flight crew members because even at 70 or 80 credit hours per month, clearly a full-time schedule, a crew member would not have been paid for 1,250 hours per year and may not have been on duty for 1,250 hours during the year. See Knapp v. America West Airlines, Inc., 207 Fed. Appx. 896 (10th Cir. 2006) (reserve days did not qualify as hours of service for FMLA purposes); Rich v. Delta Air Lines, Inc., 921 F. Supp. 767 (N.D. Ga. 1996) (time spent on layover, not work time, for purposes of FMLA coverage).

While unions representing flight crew members have successfully negotiated the right to FMLA leave at some carriers, they also pushed for legislation establishing the right of flight crew members to FMLA leave.

The Airline Flight Crew Technical Corrections Act

The Airline Flight Crew Technical Corrections Act ("AFCTCA"), passed almost unanimously by Congress in 2009, was intended to extend FMLA coverage to airline flight crews by recognizing that crews were compensated based on credit hours that reflected more...