In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 17-3643 & 17-3660

ANDREA HIRST, et al.,

Plaintiffs-Appellants,

v.

SKYWEST, INC., et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 1:15-cv-02036 & 1:15-cv-11117 — John J. Tharp, Jr., Judge.

____________________

ARGUED SEPTEMBER 7, 2018 — DECIDED DECEMBER 12, 2018

____________________

Before WOOD, Chief Judge, ROVNER, and BRENNAN, Circuit 

Judges.

BRENNAN, Circuit Judge. In this case, a number of current 

and former flight attendants challenge an airline’s compensation policy of paying for their work in the air but not on the 

ground. Plaintiffs-appellants (“the Flight Attendants”) all 

work or worked for defendant-appellee SkyWest Airlines, 

Inc., an airline owned by co-defendant-appellee SkyWest, Inc. 

(collectively “SkyWest”). The Flight Attendants filed suit 
2 Nos. 17-3643 & 17-3660

alleging violations of the Fair Labor Standards Act, 29 U.S.C. 

§ 201 et seq. (“FLSA”), and various state and local wage laws, 

seeking to certify a class of similarly situated SkyWest 

employees. The district court dismissed the complaint in its 

entirety, finding that the Flight Attendants had failed to allege 

a FLSA violation, and that the dormant Commerce Clause 

barred the state and local claims.

The Flight Attendants plausibly allege they were not paid 

for certain hours of work. We agree with other federal circuits, 

however, that under the FLSA the relevant unit for determining a pay violation is not wages per hour, but the average 

hourly wage across a workweek. Because the Flight Attendants failed to allege even a single workweek in which one of 

them received less than the federal minimum wage of $7.25 

per hour, we affirm the dismissal of those claims.

We do not agree, though, with the application of the 

dormant Commerce Clause in this case. States possess authority to regulate the labor of their own citizens and companies, 

so we apply that doctrine sparingly to wage regulations. The

dormant Commerce Clause does not preclude state regulation of flight attendant wages in this case, particularly when 

the FLSA itself reserves that authority to states and localities.

Accordingly, we reverse the dismissal of the state and local 

wage claims and remand for further proceedings.

I. Background

This appeal is from a dismissal on the pleadings, so we 

recount the facts as alleged in the complaint, resolving all 

reasonable inferences in favor of the Flight Attendants. Sloan 

v. Am. Brain Tumor Ass'n, 901 F.3d 891, 893 (7th Cir. 2018).
Nos. 17-3643 & 17-3660 3

SkyWest, an airline headquartered in St. George, Utah,

charters planes for other airlines. SkyWest employs over 2,600 

people as cabin crew, and either currently employs or formerly employed the eight plaintiffs-appellants in this case.1

SkyWest flight attendants are based out of airports in ten different states, including these Flight Attendants’ home states 

of Arizona, California, Illinois, and Washington. A new flight 

attendant at SkyWest earns $17.50 per hour, and wages 

increase with experience. 

A flight attendant’s typical workday is long and varied, 

including time onboard the aircraft as well as in airports 

before, between, and after flights. SkyWest Flight attendants 

are paid only for their time in the air, known in the industry 

as “block time.”2 The amount of block time worked in a given 

day is much shorter than the “duty day.”3 The eight Flight 

Attendants each pleaded, with varying specificity, times during which they were not paid for portions of their duty days. 

For example, plaintiff-appellant Stover alleged a two-week 

period in October 2012 during which she was paid $656.25 for 

 

1 This consolidated suit was brought by plaintiffs-appellants Andrea 

Hirst, Molly Stover, Emily Stroble Sze, Cheryl Tapp, Renee Sitavich, Sarah 

Hudson, Brandon Colson, and Brüno Lozano.

2 As defined by the Flight Attendants, “block time” is the time between “block out” (when a flight attendant closes the main cabin door for 

the aircraft to leave the gate) and “block in” (when an aircraft arrives at 

the destination jet bridge and a flight attendant opens the main cabin 

door).

3 As defined by the Flight Attendants, the “duty day” is the difference 

between report time (the time at which a flight attendant must have 

cleared security at the airport) and release time (fifteen minutes after the 

cabin door opens at the day’s final destination).
4 Nos. 17-3643 & 17-3660

86.07 hours of duty time, resulting in an average hourly wage 

of $7.62 per hour. In contrast, plaintiff-appellant Lozano 

alleged only that he worked many hours of duty time and

included no wage-specific information. The common thread 

underlying the various Flight Attendants’ allegations, though, 

is that none of them alleged a single workweek in which they 

were paid, on average, less than $7.25 per hour, the federal 

minimum wage under FLSA, 29 U.S.C. § 206(a)(1)(C).

Plaintiffs-appellants Hirst, Stover, and Stroble Sze sued in 

March 2015 in the Northern District of Illinois alleging that 

SkyWest violated the FLSA and the Illinois Minimum Wage 

Law by failing to pay minimum wage. Several months later, 

plaintiffs-appellants Tapp, Sitavich, Hudson, Colson, and 

Lozano filed a similar action in the Northern District of California under the FLSA and state and local minimum wage 

laws and ordinances in California, Arizona, and Washington. 

Both complaints sought class certification of nationwide, 

state, and local classes. The two cases were consolidated in the 

Northern District of Illinois. 

After allowing multiple amended complaints and limited 

discovery, the district court dismissed all of the Flight Attendants’ claims with prejudice. The court determined that, in 

assessing violations of the federal minimum wage, an 

employee’s wage is calculated as the average hourly wage

across the workweek. Because none of the Flight Attendants 

pleaded a single workweek in which they were paid an average wage of less than $7.25 per hour, the court concluded they 

had not properly pleaded a FLSA violation. The district court 

also held that their state and local wage claims were 

preempted by the dormant Commerce Clause. Applying the 

approach the Supreme Court delineated in Pike v. Bruce 
Nos. 17-3643 & 17-3660 5

Church, Inc., 397 U.S. 137 (1970), the district court ruled that 

requiring SkyWest to comply with state and local wage laws 

would impose too great of an administrative burden. The 

court reasoned that, with flight attendants flying to and from 

different states and cities all day, as well as flying over many

more, the burden on SkyWest would be “clearly excessive in 

relation to the putative local benefits.” Pike, 397 U.S. at 142; 

Nat'l Solid Wastes Mgmt. Ass'n v. Meyer, 63 F.3d 652, 657 (7th 

Cir. 1995) (same). The Flight Attendants timely appealed. 

II. FLSA Claims

First, the Flight Attendants challenge the dismissal of their 

FLSA claims. We review an appeal from a motion to dismiss 

de novo. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th 

Cir. 2014). 

FLSA 29 U.S.C. § 206 reads: “Every employer shall pay to 

each of his employees who in any workweek is engaged in 

commerce ... not less than—$7.25 an hour.” The Flight 

Attendants argue compliance with this provision should be 

measured differently depending on the wage practices of a 

given industry. They contend compliance for flight attendants 

should be measured by “pairing,” or work trip out and back

from their base airport, instead of by workweek. SkyWest 

points out that every other federal circuit to reach this issue 

has applied the workweek measure to all industries, and 

FLSA compliance should therefore be determined from the 

average hourly pay over a given workweek.

The text of 29 U.S.C. § 206 does not state what measure 

should be used to determine compliance with the minimum 

wage, nor do any of the surrounding provisions provide guidance. In light of this, we turn to the interpretation of the 
6 Nos. 17-3643 & 17-3660

Department of Labor, the administrative agency charged with 

overseeing the FLSA. “When Congress leaves an administrative agency with discretion to resolve a statutory ambiguity, 

judicial review is deferential.” Ali v. Mukasey, 521 F.3d 737, 

739 (7th Cir. 2008) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc, 467 U.S. 837 (1984)). In 1940, less than two years 

after the FLSA was enacted, the Department of Labor issued 

a policy statement adopting the workweek as “the standard 

period of time over which wages may be averaged to determine whether the employer has paid [the minimum wage].”

Wage & Hour Release No. R-609 (Feb. 5, 1940), reprinted in 

1942 WAGE AND HOUR MANUAL (BNA) 185. While this policy 

statement has never been codified into an official regulation, 

to our knowledge and per the parties’ arguments, neither has 

the Department of Labor ever deviated from this understanding. Further, in the eighty years since the FLSA was passed, 

Congress has never seen fit to amend the law to change this 

understanding.

Other circuits have uniformly adopted the Department’s 

per-workweek measure. See, e.g., Douglas v. Xerox Business 

Services, LLC, 875 F.3d 884, 887–88 (9th Cir. 2017); Hall v. 

DIRECTV, LLC, 846 F.3d 757, 777 (4th Cir. 2017); U.S. Dep't of 

Labor v. Cole Enterprises, Inc., 62 F.3d 775, 780 (6th Cir. 1995); 

Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357 

(8th Cir. 1986); Olson v. Superior Pontiac-GMC, Inc., 765 F.2d 

1570, 1576 (11th Cir. 1985), modified on other grounds, 776 F.2d 

265 (11th Cir. 1985); Dove v. Coupe, 759 F.2d 167, 171–72 (D.C. 

Cir. 1985); Blankenship v. Thurston Motor Lines, 415 F.2d 1193, 

1198 (4th Cir. 1969); United States v. Klinghoffer Bros. Realty 

Corp., 285 F.2d 487, 490 (2d Cir. 1960). We see no reason to 

deviate from the Department’s interpretation or the consensus of other federal appellate courts. Therefore, we adopt the 
Nos. 17-3643 & 17-3660 7

per-workweek measure for determining compliance with 

29 U.S.C. § 206, without industry-specific carveouts.

We now apply the per-workweek measure to the pleadings before us. To survive a motion to dismiss for failure to 

state a claim, the Flight Attendants needed to allege sufficient 

facts to plead a claim for relief that is plausible on its face. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Several federal 

circuits have analyzed the minimum pleading requirements 

for FLSA claims under a similarly constructed provision governing overtime pay, 29 U.S.C. § 207(a)(1). For example, the 

Second and Ninth Circuits have held that for overtime claims,

plaintiffs must “allege facts demonstrating there was at least 

one workweek in which they worked in excess of forty hours 

and were not paid overtime wages.” Landers v. Quality Comm., 

Inc., 771 F.3d 638, 646 (9th Cir. 2014) (emphasis added) (citing 

Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2nd Cir. 

2013)). Though plaintiffs need not necessarily plead specific 

dates and times that they worked undercompensated hours, 

they must “provide some factual context that will nudge their 

claim from conceivable to plausible.” Hall, 846 F.3d at 777 

(emphasis in original) (quoting Dejesus, 726 F.3d at 90).

The same principles for pleading overtime pay violations 

apply to minimum wage violations. In order to comply with 

the requirements of Twombly, Iqbal, and FED. R. CIV. P. 8(a)(2), 

a plaintiff alleging a federal minimum wage violation must 

provide sufficient factual context to raise a plausible inference 

there was at least one workweek in which he or she was 

underpaid. Here, as demonstrated by the district court’s thorough and detailed analysis, see Hirst v. SkyWest, Inc., 

283 F. Supp. 3d 684, 688–89 (N.D. Ill. 2017), no plaintiff did so, 
8 Nos. 17-3643 & 17-3660

even after the district court permitted the Flight Attendants to 

conduct limited discovery. Claiming they worked many 

hours and citing several weeks in which they were paid the 

minimum wage is not enough to render their claims plausible.

We affirm the dismissal of the Flight Attendants’ FLSA 

claims.

III. State and Local Claims

The Flight Attendants next argue their state and local 

wage claims should be reinstated. They contend the dormant 

Commerce Clause does not apply to this case. Even if it does 

apply, the Flight Attendants aver the district court did not 

properly analyze the benefits to state and local governments,

and that the FLSA expressly permits the application of state 

and local wage laws to employers. SkyWest responds that 

under Pike the dormant Commerce Clause does apply to this 

case, and that the district court accurately assessed the

burdens on SkyWest to comply with state and local wage 

laws. 

The Commerce Clause grants Congress the authority “[t]o 

regulate Commerce ... among the several States.” U.S. CONST. 

art. I, § 8, cl. 3. The Supreme Court has inferred a “dormant” 

aspect of the Commerce Clause “that limits states’ abilities to 

restrict interstate commerce.” Minerva Dairy, Inc. v. Harsdorf, 

905 F.3d 1047, 1058 (7th Cir. 2018) (citing New Energy Co. of 

Ind. v. Limbach, 486 U.S. 269, 273 (1988)).4 Under the dormant 

 4 Given its lack of a textual anchor, the continued validity of the 

dormant Commerce Clause has been questioned, see, e.g., South Dakota v. 

Wayfair, 138 S. Ct. 2080, 2100 (2018) (Thomas, J., concurring), id. at 2100

(Gorsuch, J., concurring), but it remains valid law absent a Supreme Court

directive to the contrary. 
Nos. 17-3643 & 17-3660 9

Commerce Clause, we invalidate a state law only where there 

is a clear showing of discrimination against interstate commerce, “either expressly or in practical effect.” Park Pet Shop, 

Inc. v. City of Chicago, 872 F.3d 495, 501 (7th Cir. 2017).

The dormant Commerce Clause serves as a bulwark 

against local protectionism. As such, “if the state law affects 

commerce without any reallocation among jurisdictions and 

does not give local firms any competitive advantage over 

those located elsewhere, we apply the normal rational basis 

standard.” Minerva Dairy, Inc., 905 F.3d at 1053 (internal quotation marks and citations omitted); see also id. at 1058–59. SkyWest is subject to many minimum wage laws that impose 

serious compliance costs. But the existence of a great regulatory burden on an employer does not necessarily mean minimum wage laws have a discriminatory effect on interstate

commerce. State and local wage laws can burden companies 

within their own localities just as much, if not more, than outof-state ones. All airlines—indeed all employers—are subject 

to these laws, regardless of state citizenship. “Pike balancing 

is triggered only when the challenged law discriminates against 

interstate commerce in practical application.” Park Pet Shop, 

872 F.3d at 502 (emphases in original). SkyWest has failed to 

allege any discrimination against interstate commerce. This 

failing precludes the application of the dormant Commerce 

Clause to the Flight Attendants’ state and local claims. 

Even if minimum wage laws did discriminate against

interstate commerce, the dormant Commerce Clause does not 

apply to state and local laws expressly authorized by Congress. See, e.g., Northeast Bancorp, Inc. v. Bd. of Gov’rs of Fed. Res. 

Sys., 472 U.S. 159, 174 (1985) (“When Congress so chooses, 

state actions which it plainly authorizes are invulnerable to 
10 Nos. 17-3643 & 17-3660

constitutional attack under the Commerce Clause.”); Milwaukee Cty. Pavers Ass’n v. Fiedler, 922 F.2d 419, 424 (7th Cir. 1991) 

(“If Congress wants, it can authorize states to engage in activities that but for the authorization would violate the dormant 

commerce clause.”). The FLSA contains such an express 

authorization. Section 218(a) of the FLSA reads: “No provision of this chapter or of any order thereunder shall excuse 

noncompliance with any Federal or State law or municipal 

ordinance establishing a minimum wage higher than the minimum wage established under this chapter ... .” Because Congress expressly authorized states and localities to legislate in 

this realm, the application of multiple minimum wage laws to 

an employer cannot violate the dormant Commerce Clause.

For the foregoing reasons, we AFFIRM the dismissal of the 

FLSA claims, and REVERSE and REMAND for further proceedings on the state and local claims.