NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AIR TRANSPORT ASSOCIATION OF 

AMERICA, INC., DBA Airlines for 

America, 

Plaintiff-Appellant, 

 v. 

THE WASHINGTON DEPARTMENT OF 

LABOR AND INDUSTRIES; JOEL 

SACKS, in his official capacity as Director 

of the Department of Labor and Industries, 

Defendants-Appellees, 

ASSOCIATION OF FLIGHT 

ATTENDANTS - COMMUNICATION 

WORKERS OF AMERICA, AFL-CIO, 

Intervenor-DefendantAppellee.

No. 19-35937 

D.C. No. 3:18-cv-05092-RBL 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted November 17, 2020

Submission Vacated November 19, 2020

Resubmitted May 11, 2021

Seattle, Washington

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: GOULD and FRIEDLAND, Circuit Judges, and BOUGH,** District 

Judge.

The Air Transport Association (d/b/a “Airlines for America” or “A4A”) has 

brought this action against Washington’s Department of Labor and Industries 

(“L&I”), seeking to enjoin enforcement of Washington’s law governing paid sick 

leave, Wash. Rev. Code § 49.46. 210 (2021).

1 A4A argues that applying the paid 

sick leave law (the “PSL”) to its members’ flight attendants and pilots (“flight 

crew”) is preempted by the Airline Deregulation Act, 49 U.S.C. § 41713, and 

violates the dormant Commerce Clause.2 The parties filed cross-motions for 

summary judgment, and the district court granted L&I’s motion. We affirm. 

In 2016, voters in Washington enacted a ballot initiative that established a 

right to paid sick leave “to protect public health and allow workers to care for the 

** The Honorable Stephen R. Bough, United States District Judge for the 

Western District of Missouri, sitting by designation.

1 A4A is a trade association that represents U.S. air carriers Alaska, 

American, Atlas, Delta, FedEx, Hawaiian, JetBlue, Southwest, United, and UPS. 

The Association of Flight Attendants-Communication Workers of America, AFLCIO, intervened as a Defendant to represent the interests of its members. In 

addition, eighteen states and the District of Columbia filed a brief as amici curiae 

in support of L&I. Alaska Airlines filed a brief as amicus curiae in support of 

A4A. 

2 Although the PSL took effect 2018, A4A’s counsel stated that Alaska 

Airlines—which is possibly the only airline to which this law applies, see infra—is 

not complying with the PSL as to flight crew. L&I has not initiated any 

enforcement actions against A4A’s members, despite their lack of compliance, 

because it has not received any formal complaints. 
3 

health of themselves and their families.” Wash. Rev. Code § 49.46.005. The PSL 

requires that employers provide Washington-based employees at least one hour of 

paid sick leave for every forty hours worked. Id. § 49.46.210(1)(a). In addition, 

the law prohibits employers from penalizing employees for using sick leave—such 

as through a disciplinary point system—or requiring medical verification for sick 

leave absences of fewer than three days. Id. § 49.46.210(3); Wash. Admin. Code 

§ 296-128-660(1). 

A4A argues that compliance with the PSL will deprive the airlines of their 

“most important” tools for minimizing flight crew shortages, including disciplinary 

point systems and medical verification requirements, thereby causing flight delays 

and cancellations. In support, A4A points to Virgin America’s experience 

complying with New York City’s Earned Sick Time Act (“ESTA”), which

contains provisions similar to those in the PSL.3 A4A’s expert estimated that 

Virgin America’s compliance with the ESTA led to a “cabin crew delay rate” 

increase of .16 percent for the first two years and 1.2 percent for the seven months 

thereafter. 

1. The Airline Deregulation Act (“ADA”) does not preempt the application 

3 Because A4A appeals from the district court’s order granting summary 

judgment to L&I, we view the facts and the reasonable inferences drawn from 

them in the light most favorable to A4A. Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986).
4 

of the PSL to A4A’s members’ flight crew. The ADA preempts state laws “related 

to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b). State laws that 

affect rates, routes, or services in “too tenuous, remote, or peripheral a manner” are 

not preempted. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390 (1992)

(quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983)). We have

held that generally applicable labor regulations are too tenuously related to 

airlines’ services to be preempted by the Act. See Ward v. United Airlines, Inc., 

986 F.3d 1234, 1243 (9th Cir. 2021) (“Laws that apply to airline employees only as 

they apply to all members of the general public typically fall into th[e] nonpreempted category.”). The PSL is no exception. 

A4A argues that, unlike the wage statement law at issue in Ward, the PSL 

“operates in close proximity to the traveling public.” The proper inquiry is 

whether the PSL itself “binds the [airlines] to a particular price, route, or service.” 

Bernstein v. Virgin Am., Inc., 990 F.3d 1157, 1169-70 (9th Cir. 2021) (quoting 

Dilts v. Penske Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014)). The PSL

regulates the airline-employee relationship in a way that may ultimately affect the 

airlines’ competitive decisions in the free market. But because the PSL does not 

regulate the airline-customer relationship or otherwise bind the airlines to a 

particular price, route, or service, it is not preempted by the ADA. See Air Transp. 

Ass’n v. City & County of San Francisco, 266 F.3d 1064, 1074 (9th Cir. 2001).
5 

2. As applied to A4A’s members’ flight crew, the PSL does not violate the 

dormant Commerce Clause. To survive L&I’s motion for summary judgment, 

A4A must show that there is a genuine issue of material fact as to whether 

complying with the PSL would impose a “substantial burden on interstate 

commerce,” and if so, whether the burden on interstate commerce would be 

“clearly excessive in relation to the putative local benefits.”4 Nat’l Ass’n of 

Optometrists & Opticians v. Harris, 682 F.3d 1144, 1155-56 (9th Cir. 2012) (citing 

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). Viewing the evidence in 

the light most favorable to A4A, we hold that the evidence does not demonstrate 

that requiring A4A’s members to comply with the PSL would impose a substantial 

burden on interstate commerce. 

A4A argues that Virgin America’s experience complying with the ESTA 

shows that complying with the PSL would increase unexpected employee 

absences, which would result in increased flight delays and cancellations. Even 

assuming that complying with the PSL would lead to the same result for A4A’s 

members that Virgin America experienced complying with the ESTA, A4A’s 

expert’s conclusions are insufficient to raise a genuine issue of material fact. A 1.2 

percent increase in flight delays—with many of those delays lasting fewer than 

fourteen minutes—is not a substantial burden on interstate commerce for dormant 

4 The parties agree that the PSL is not facially discriminatory. 
6 

Commerce Clause purposes, particularly for an industry that anticipates delays at 

much higher rates under ordinary circumstances. A4A’s other arguments about the 

effects of complying with sick leave policies in other states fail for the same 

reason, and they are based solely on anecdotes. 

Separately, A4A argues that complying with multiple states’ paid sick leave 

laws would be impossible or prohibitively expensive for its members. We rejected 

a similar argument in Ward. We explained that “[t]o prevail on this contention,” 

airlines must show that the challenged law “regulates in an area that requires 

national uniformity.” Ward, 986 F.3d at 1242. Like the wage statement laws at 

issue in Ward, paid sick leave laws are not among the “aspects of the interstate 

transportation industry that require national uniformity.” Id. Although A4A has 

submitted evidence that complying with paid sick leave laws may result in some 

increase in flight delays and cancellations, this evidence falls short of 

demonstrating that complying with the PSL will “severely disrupt operation of 

interstate transportation.” Id.; see also Bernstein, 990 F.3d at 1165. 

Furthermore, the PSL’s limited scope undermines A4A’s argument as to the 

impossibility of complying with multiple paid sick leave laws. The PSL only 

applies to “Washington-based employees” of employers “doing business in 

Washington.” An L&I official testified that flight crew members who are not 

“based” at a Washington airport and who have no relationship with Washington 
7 

other than flying in and out of the state are “unlikely to be Washington-based 

employees.” Based on this testimony, we deduce that the PSL primarily—or 

perhaps solely—applies to employees of Alaska Airlines, which is headquartered 

in Washington and is the only A4A member airline that has an airport “base” in the 

state.

5

 A4A does not present any concrete examples of Alaska Airlines employees 

who would be covered by multiple paid sick leave laws if the A4A’s members’ 

were to comply with the PSL. To the extent that Washington-based flight crew are 

determined to be covered by multiple jurisdictions’ laws, an airline could avoid 

potential concerns by choosing to comply with the law that imposes the strictest 

requirements. See Ward, 986 F.3d at 1242.

6

AFFIRMED.

5

In an amicus brief, Alaska Airlines states that it has hundreds of employees 

who live in Washington and are based in other states, and vice versa. But this 

information fails to demonstrate that any of these employees would actually be 

subject to multiple states’ laws. 

6 According to A4A, adopting the strictest paid sick leave law to avoid a 

conflict would violate the dormant Commerce Clause by allowing states to regulate 

beyond their borders. “Our circuit’s law casts doubt on the continued viability of 

the broad extraterritoriality principle” that A4A invokes. Ward, 986 F.3d at 1240. 

But even if the extraterritoriality principle were to apply here, it would not be 

violated because the PSL applies only to “Washington-based” employees of 

employers “who are doing business in Washington.” See id. at 1240-41 (holding 

that “even under a broad understanding of the extraterritoriality principle,” 

California’s application of its wage statement law to flight crew who were 

California-based was sufficiently strong to pass constitutional muster).