### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No s

. 17

- 3643 & 17

- 36 6 0
A NDREA H IRST , et al

. , Plaintiffs

- Appellants ,

v.

S KY W EST , I NC

. , et al

. , Defendants

- Appellees

.

____________________ Appeal s 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

.

____________________ A RGUED S EPTEMBER 7, 2018

— D ECIDED D ECEMBER 12, 2018

____________________

Before W OOD , Chief Judge , R OVNER , and B RENNAN , Circuit Judges

. B RENNAN , Circuit Judge

. In this case , a number of current and former flight attendants challenge an airline ’ s compensation policy of paying fo r 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 Atte ndants filed suit2 No s

. 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 n ot paid for certain hours of work

. W e 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 fail ed 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 claim s

. W e do not agree , though , with the application of the dormant Commerce Clause in this case. Stat es 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

T his appeal is from a dismissal on the pleadings, so w e 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).No s

. 17

- 3643 & 17

- 3660 3

SkyWest , an airline headquartered in St. George, Utah , charters planes for other airlines. SkyWest employs over 2, 6 00 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 attendan t at SkyWest earn s $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 F light attendants are paid only for their time in the air, known in the industry

as “ block time. ” 2 The amount of block time work ed in a given day is much sh orter 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

- appell ant 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

- appell ant s 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 Attend ants, 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 No s

. 17

- 3643 & 17

- 3660

8 6 .07 hours of duty time, resulting in an average hourly wage of $7.62 per hour

. In contrast, plaintiff

- appell ant 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 mi nimum 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. Sev eral months later, plaintiffs

- appellants Tapp, Sitavich, Hudson, Colson, andLozano 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. Bo th complaints sought class certification of nationwi de,
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 t he Flight Att endants ’ claims with prejudice. The court determin ed 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 Attendantspleaded 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 the ir state and local wag e claims were pr eempted by the dormant Commerce Clause

. Applying the approach the Supreme Court delineated in Pike v. BruceNo s

. 17

- 3643 & 17

- 3660 5

Church, Inc. , 397 U.S. 137 (1970), the district court ruled that requiring SkyWest to comply with state and loc al wage laws would impose too great o f 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 benefi ts. ” 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, t he Flight Attendants challenge the dismissal of their FLSA claims. We review an ap peal 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 workwe ek 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 f rom their base airport , instead of by workweek. SkyWest point s 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 the6 No s

. 17

- 3643 & 17

- 3660

Depart ment 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 W AGE AND H OUR M ANUAL (BNA) 185

. While this policy statement has never been codified into an official regul ation, to our knowledge and per the parties ’ arguments, neither hasthe 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 understan ding.
O ther circuits have uniformly adopted the Department’s per

- workweek measure

. See, e.g. , Douglas v. Xerox Business Services, LLC , 875 F.3d 884, 88 7

– 88 (9th Cir. 2017) ; Hall v. D IREC TV, LLC , 846 F.3d 757, 777 (4th Cir. 2017); U.S. Dep't of Labor v. Co le 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 (11 th Cir. 1985) ; Dove v. Coupe , 759 F.2d 167, 171

– 72 (D.C. Cir. 1985) ; Blankenship v. Thurston Motor Lines, 415 F.2d 1193, 11 98 (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 th e co nsensus of other federal appellate courts

. T herefore , we adopt theNo s

. 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 measur e 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) (citin g Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). Several federal circuit s 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, t he 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 F ED

. R. C IV

. 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 No s

. 17

- 3643 & 17

- 3660

even after the district court permitt ed the Flight Attendants to conduct limited discovery

. C laiming they worked many hours and citing several weeks in which they were paid the minimum wage is not enough to render their claims plausible. W e 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 d ormant Commerce Clause does not apply to this case

. Even if i t does apply , the Flight Attendants aver the district court did not proper ly ana ly ze the benefits to state and local governments , and that the FLSA expressly permits the application of state and local wage laws to employers. SkyWest respond s that under Pike the dormant Commerce Clause does apply to this
case, and that the district court accurately assessed the burden s on SkyWest to comply with state and local wa g e laws

. The Commerce Clause grants Congress the authority “[t]o regulate Commerce ... among the several States.” U.S. C ONST

. art. I, § 8, cl. 3. T he Supreme Court has inferre d a “dormant” aspect of the C ommerce C lause “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 , s ee, 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

.No s

. 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. 2 017).
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 10 53 ( 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 t he exis tence 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 out

of

- state ones. All airlines

— indeed all employers

— are subject to these laws, regardless of state citizenship. “ Pike balancing is trigge red 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 authoriz ed 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 to10 No s

. 17

- 3643 & 17

- 3660

constitutional attack under the Commerce Clause.”); Mi lwaukee 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 auth orization. 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 A FFIRM the dismissal of the FLSA claims, and R EVERSE and R EMAND for further proceedings on the state and local claims.