FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEV ANAND OMAN; TODD

EICHMANN; MICHAEL LEHR;

ALBERT FLORES,

individually, on behalf of

others similarly situated, and

on behalf of the general

public,

Plaintiffs-Appellants,

v.

DELTA AIR LINES, INC.,

Defendant-Appellee.

No. 17-15124

D.C. No.

3:15-cv-00131-WHO

ORDER CERTIFYING

QUESTIONS TO THE

SUPREME COURT OF

CALIFORNIA

Filed May 9, 2018

Before: Paul J. Watford and Michelle T. Friedland, Circuit

Judges, and Jed S. Rakoff,* Senior District Judge.

* The Honorable Jed S. Rakoff, Senior United States District Judge

for the Southern District of New York, sitting by designation.
2 OMAN V. DELTA AIR LINES

SUMMARY**

Certified Questions to California Supreme Court 

The panel certified the following questions of state law to

the Supreme Court of California:

(1) Do California Labor Code §§ 204 and 226

apply to wage payments and wage statements

provided by an out-of-state employer to an

employee who, in the relevant pay period,

works in California only episodically and for

less than a day at a time?

(2) Does California minimum wage law

apply to all work performed in California for

an out-of-state employer by an employee who

works in California only episodically and for

less than a day at a time? See Cal. Labor

Code §§ 1182.12, 1194; 8 C.C.R. § 11090(4).

(3) Does the Armenta/Gonzalez bar on

averaging wages apply to a pay formula that

generally awards credit for all hours on duty,

but which, in certain situations resulting in

higher pay, does not award credit for all hours

on duty? See Gonzalez v. Downtown LA

Motors, LP, 155 Cal. Rptr. 3d 18, 20 (Ct.

App. 2013); Armenta v. Osmose, Inc., 37 Cal.

Rptr. 3d 460, 468 (Ct. App. 2005)?

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
OMAN V. DELTA AIR LINES 3

ORDER

We respectfully ask the Supreme Court of California to

exercise its discretion to decide the certified questions set

forth in section II of this order.

I. Administrative Information

We provide the following information in accordance with

California Rule of Court 8.548(b)(1). The caption of this case

is:

No. 17-15124

DEV ANAND OMAN; TODD EICHMANN;

MICHAEL LEHR; ALBERT FLORES,

individually, on behalf of others similarly

situated, and on behalf of the general public,

Plaintiffs-Appellants,

v.

DELTA AIR LINES, INC., DefendantAppellee.

The names and addresses of counsel for the parties are:

For Plaintiffs-Appellants Dev Anand Oman,

Todd Eichmann, Michael Lehr, and Albert

Flores: Daniel S. Brome and Matthew C.

He ll a n d , Ni c h o ls Ka st e r, LLP,

235 Montgomery Street, Suite 810, San

Francisco, CA 94104.
4 OMAN V. DELTA AIR LINES

For Defendant-Appellee Delta Air Lines, Inc.:

Andrew P. Frederick, Robert Jon Hendricks,

and Thomas M. Peterson, Morgan Lewis &

Bockius LLP, One Market Street, Spear Street

Tower, San Francisco, CA 94105.

We designate Dev Anand Oman, Todd Eichmann,

Michael Lehr, and Albert Flores as the petitioners if our

request for certification is granted. They are the appellants

before our court.

II. Certified Questions

We certify to the Supreme Court of California the

following three questions of state law:

(1) Do California Labor Code §§ 204 and 226

apply to wage payments and wage statements

provided by an out-of-state employer to an

employee who, in the relevant pay period,

works in California only episodically and for

less than a day at a time?

(2) Does California minimum wage law

apply to all work performed in California for

an out-of-state employer by an employee who

works in California only episodically and for

less than a day at a time? See Cal. Labor

Code §§ 1182.12, 1194; 8 C.C.R. § 11090(4).

(3) Does the Armenta/Gonzalez bar on

averaging wages apply to a pay formula that

generally awards credit for all hours on duty,

but which, in certain situations resulting in
OMAN V. DELTA AIR LINES 5

higher pay, does not award credit for all hours

on duty? See Gonzalez v. Downtown LA

Motors, LP, 155 Cal. Rptr. 3d 18, 20 (Ct.

App. 2013); Armenta v. Osmose, Inc., 37 Cal.

Rptr. 3d 460, 468 (Ct. App. 2005).

We certify these questions pursuant to California Rule of

Court 8.548. The answers to these questions will determine

the outcome of the appeal currently pending in our court. We

will accept and follow the decision of the California Supreme

Court on these questions. Our phrasing of the questions

should not restrict the California Supreme Court’s

consideration of the issues involved.

III. Statement of Facts

In this case, flight attendants have sued their employer,

Delta Air Lines, Inc. (Delta), for alleged violations of

California labor law. Delta is a major passenger and cargo

airline that operates throughout the United States and the

world. It is a Delaware corporation, headquartered in Atlanta,

Georgia. From 2012 to 2015, approximately 7% of its almost

22,000 United States-based flight attendants were based out

of California airports.

The plaintiffs are four Delta flight attendants, only two of

whom reside in California. Dev Anand Oman was a flight

attendant for Delta from 2011 to 2014, during which time he

lived in New York and was based out of New York’s John F.

Kennedy Airport. Todd Eichmann and Michael Lehr began

working for Delta in 2009, when Delta acquired their

previous employer. Eichmann has lived in California and

been based out of California’s Los Angeles International

Airport (LAX) since 2014. Lehr has lived in Nevada and
6 OMAN V. DELTA AIR LINES

been based out of California’s San Francisco International

Airport throughout his time with Delta. Albert Flores has

been a flight attendant for Delta since around 2008. He has

lived in California and been based out of LAX since 2010. 

The plaintiffs proposed a class of Delta flight attendants “who

have performed work” in California, but they never sought to

certify it.

During a sample of the time period in question, the

plaintiffs spent at most 14% of their “flight-related working

hours” in California. From January 2014 to June 2016, Oman

worked 3% of his time in California; Eichmann, 9%; Lehr,

14%; and Flores, 11%. These percentages are not in dispute.

The plaintiffs were paid according to a complicated

credit-based pay formula that is explained in the Delta Work

Rules. (Because Delta flight attendants are not unionized, the

Work Rules, rather than a collective bargaining agreement,

govern their pay.) The pay formula calculates a flight

attendant’s pay by “rotation,” which is a set of flights that can

include layovers. The pay formula incorporates four different

credit calculations. The credit calculations award credits

based on different criteria. For example, the Flight Pay

calculation awards one credit per hour flown or scheduled to

be flown, while the Duty Period Credit calculation awards

one credit per two hours on duty. The pay formula compares

the result of the four credit calculations to determine which

yields the most credits per rotation. Delta then multiplies the

highest number of credits by the flight attendant’s hourly

wage rate (plus additions not relevant here) to determine the

flight attendant’s pay.

The pay formula at times fails to award credit for all

hours on duty, but it never results in an hourly rate that is
OMAN V. DELTA AIR LINES 7

below California’s minimum wage. The pay formula can fail

to award credit for all hours on duty because the Flight Pay

calculation provides credit only for hours flown or scheduled

to be flown, not for hours preparing the airplane for

passengers, for example. Still, a flight attendant is always

paid an above-minimum-wage hourly rate because the Duty

Period Credit calculation, in effect, guarantees a flight

attendant half her hourly wage rate per hour on duty, and

even the lowest flight attendant wage rate is more than double

California’s minimum wage. The plaintiffs cannot identify

a rotation in which they were paid an average hourly wage

below California’s minimum wage.

The plaintiffs sued Delta in federal court, alleging that the

Flight Pay calculation violates California minimum wage law

by failing to pay the minimum wage “per hour for all hours

worked.” 8 C.C.R. § 11090(4)(A); see Armenta, 37 Cal. Rptr.

3d at 468. They argue that the Flight Pay formula

impermissibly averages a flight attendant’s wages for paid,

productive time and unpaid, unproductive time. See

Gonzalez, 155 Cal. Rptr. 3d at 20. They also contend that

Delta failed to pay their wages on time, in violation of

California Labor Code § 204, and failed to issue them wage

statements that complied with California Labor Code § 226. 

The plaintiffs demand damages and unpaid wages under

California Labor Code §§ 1194 and 1194.2; damages and

statutory penalties under California Labor Code §§ 203

and 226; civil penalties under the Private Attorneys General

Act (PAGA), Cal. Labor Code § 2699; and restitution and

attorney’s fees under California Business &Professions Code

§ 17200.

The plaintiffs seek to apply California law to their claims

based solely on the location of their work. They seek to
8 OMAN V. DELTA AIR LINES

apply California law to work that lasted only for hours and

minutes, not days, in California. They argue that California

Labor Code §§ 204 and 226 apply to any pay period in which

they performed work in California and that California

minimum wage law applies to any work performed in

California, however short the duration.

The district court granted summary judgment to Delta and

denied it to the plaintiffs in two orders. First, the district

court held that Delta complied with California minimum

wage law. Oman v. Delta Air Lines, Inc., 153 F. Supp. 3d

1094, 1095 (N.D. Cal. 2015). Second, the district court

granted summary judgment on the § 204, § 226, and other

remaining claims. Oman v. Delta Air Lines, Inc., 230 F.

Supp. 3d 986, 994 (N.D. Cal. 2017). It held that California

labor law does not apply to the four plaintiffs because they

worked only a de minimis amount of time in California. Id.

at 993–94. The plaintiffs appealed both orders.

We heard oral argument on March 16, 2018. The Air

Transport Association of America, Inc., filed an amicus brief

in support of Delta. The California Employment Lawyers

Association filed an amicus brief in support of the plaintiffs.

On the same day that we heard oral argument in this case,

we also heard oral argument in two related cases, Ward v.

United Airlines, Inc., No. 16-16415, and Vidrio v. United

Airlines, Inc., No. 17-55471. Those cases raise questions

about the extraterritoriality of California Labor Code § 226

that are similar to the questions raised here. We are also

certifying the state-law questions in Ward and Vidrio to the

California Supreme Court, in a separate certification order.
OMAN V. DELTA AIR LINES 9

IV. Explanation of Certification Request

No controlling California precedent answers the certified

questions on the proper territorial reach of the California

Labor Code provisions at issue, or on the application of

California minimum wage law to a credit-based pay formula. 

Because the first two certified questions both concern the

extraterritorial application of the Labor Code, we explain our

certification of those two questions together in section IV.A. 

We explain our certification of the third question, which

arises out of Armenta and Gonzalez, in section IV.B. The

answers to these certified questions matter greatly to the

many out-of-state employers whose employees work in

California for only brief periods of time.

A.

There is no controlling California precedent on the

question whether California labor law applies to an employee

who works for an out-of-state employer and does not work

principally, or even for days at a time, in California. The

three principles that generally guide our evaluation of the

propriety of a potentially extraterritorial application of

California law, and the California Supreme Court’s

application of those principles, do not provide sufficient

guidance here.

The first principle is that “[o]rdinarily the statutes of a

state have no force beyond its boundaries.” N. Alaska Salmon

Co. v. Pillsbury, 162 P. 93, 94 (Cal. 1916). To evaluate

whether a claim seeks to apply the force of a state statute

beyond the state’s boundaries, courts consider where the

conduct that “creates liability” under the statute occurs. 

Sullivan v. Oracle Corp., 254 P.3d 237, 248 (Cal. 2011); see
10 OMAN V. DELTA AIR LINES

also RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090,

2101 (2016) (where the “conduct relevant to the statute’s

focus occur[s]”). If the conduct that “creates liability” occurs

in California, California law properly governs that conduct.

Sullivan, 254 P.3d at 248; see also Diamond Multimedia Sys.,

Inc. v. Superior Court, 968 P.2d 539, 554 (Cal. 1999). By

contrast, if the liability-creating conduct occurs outside of

California, California law generally should not govern that

conduct (unless the Legislature explicitly indicates otherwise,

which it did not in the Labor Code). See Sullivan, 254 P.3d

at 248.

The second principle is that the proper reach of Labor

Code provisions can differ because the provisions regulate

different conduct and implicate different state interests. See

id. at 243–44. For example, because “California’s interest in

the content of an out-of-state business’s pay stubs” may be

weaker than its interest in the payment of overtime wages,

wage statement provisions may apply more narrowly than

overtime provisions do. See id. at 243.

The third principle is that courts must balance

California’s interest in applying its law with considerations of

“interstate comity,” in order to avoid unnecessary conflicts of

state law. See id. at 242–43. For example, courts should

consider whether the proposed use of California law would

displace another state’s law or would protect an employee

who is otherwise not protected by any state law. See id. at

243 (citing Bostain v. Food Express, Inc., 153 P.3d 846

(Wash. 2007)).

The California Supreme Court has applied these

principles twice to the Labor Code. Tidewater held that wage

orders apply to an employee who “resides in California,
OMAN V. DELTA AIR LINES 11

receives pay in California, and works exclusively, or

principally, in California.” Tidewater Marine W., Inc. v.

Bradshaw, 927 P.2d 296, 309 (Cal. 1996). Sullivan held that

overtime provisions apply to day-long or week-long work

performed in California for a California employer by an outof-state resident. 254 P.3d at 243, 247.

But with regard to the required strength of the California

connection, Tidewater did not address whether California law

applies to California residents “who work primarily outside

California[],” as the California-resident plaintiffs in this case

do. 927 P.2d at 309. Sullivan did not resolve whether

California law applies to nonresident employees who work

less than a full day in California, as the nonresident plaintiffs

do. See 254 P.3d at 242–43. Neither case discussed how to

balance California’s interest in applying its law to its

residents with California’s interest in avoiding interstate

conflict by not applying its law to an out-of-state employer,

such as Delta.

With regard to the different Labor Code provisions,

Sullivan confined its holding to overtime provisions, leaving

uncertain whether it applies to similar minimum wage claims. 

Neither Tidewater nor Sullivan considered a statute that

focused on an employee’s receipt of pay and information

about her pay, as § 204 and § 226 do. See Cal. Labor Code

§§ 204(a), 226(e)(2); see also Lopez v. Friant & Assocs.,

LLC, 224 Cal. Rptr. 3d 1, 6 (Ct. App. 2017); Morgan v.

United Retail, Inc., 113 Cal. Rptr. 3d 10, 19 (Ct. App. 2010). 

If that focus makes the relevant location for a § 204 or § 226

claim the place where the employee receives her pay, does an

employee’s California residence and receipt of pay in

California strengthen California’s interest in the content of an

out-of-state employer’s wage statement? Cf. Sullivan,
12 OMAN V. DELTA AIR LINES

254 P.3d at 243. Does an employee’s out-of-state residence

preclude application of California wage-timing or wagestatement law to her?

In short, Tidewater and Sullivan, even informed by the

principles of extraterritoriality, do not allow us to confidently

resolve the plaintiffs’ California law claims. The claims

implicate the proper reach of California labor law, which in

turn implicates the wage-and-hour protections given to

traveling workers. For this reason, we certify these important

questions.

B.

There is also no directly controlling California precedent

that determines whether Delta’s credit-based pay formula

implicates California’s bar on averaging wages. The

California Court of Appeal has held that the “FLSA model of

averaging all hours worked in any work week to compute an

employer’s minimum wage obligation under California law

is inappropriate.” Armenta, 37 Cal. Rptr. 3d at 468 (internal

quotation marks omitted). Instead, the “minimum wage

standard applies to each hour worked.” Id.; see Gonzalez,

155 Cal. Rptr. 3d at 28. The plaintiffs argue that the Flight

Pay calculation violates this rule because, as they correctly

note, the calculation does not award credits for “each hour

worked.” But the plaintiffs’ proposed application raises two

unresolved issues regarding the proper interpretation of when

the bar applies (assuming that it applies at all).

First, Gonzalez stated that the bar applies “whenever an

employer and employee have agreed that certain work will be

compensated at a rate that exceeds the minimum wage and

other work time will be compensated at a lower rate.” 
OMAN V. DELTA AIR LINES 13

Gonzalez, 155 Cal. Rptr. 3d at 29 (emphasis added). Both

Armenta and Gonzalez premised their holdings in part on

California Labor Code §§ 221, 222, and 223, which articulate

the principle that “all hours must be paid at the statutory or

agreed rate and no part of this rate may be used as a credit

against a minimum wage obligation.” Armenta, 37 Cal. Rptr.

3d at 467–68 (emphasis added); see Gonzalez, 155 Cal. Rptr.

3d at 28. The references to a pay agreement leave unresolved

how directly that agreement must link certain work to certain

pay to implicate the Armenta/Gonzalez bar. Does it matter

that the Delta Work Rules state that Delta awards credits,

rather than hourly pay, for certain work? Does it matter that

the Work Rules award credits not only for the exact hours

flown, but also for the hours scheduled to be flown, thus

somewhat severing the link between certain work and certain

pay?

Second, the Armenta/Gonzalez bar applies when

averaging wages “effectively reduces [an employee’s]

contractual hourly rate” and “results in underpayment of

employee wages.” Armenta, 37 Cal. Rptr. 3d at 467–68;

Gonzalez, 155 Cal. Rptr. 3d at 28. In this case, the

challenged Flight Pay calculation operates only to increase a

flight attendant’s hourly wage above the guaranteed

minimum rate promised under the Duty Period Credit

calculation. Does the bar apply to a pay system that

effectively increases an employee’s hourly rate?

Because existing California precedent does not establish

whether the Armenta/Gonzalez bar properly applies here, we

certify the question. Although the question is somewhat factintensive, it implicates California’s strong interest in

enforcing its minimum wage law.
14 OMAN V. DELTA AIR LINES

V. Accompanying Materials

The clerk of this court is hereby directed to file in the

Supreme Court of California, under official seal of the United

States Court of Appeals for the Ninth Circuit, copies of all

relevant briefs and excerpts of the record, and an original and

ten copies of this order and request for certification, along

with a certification of service on the parties, pursuant to

California Rule of Court 8.548(c), (d).

This case is withdrawn from submission. Further

proceedings before us are stayed pending final action by the

Supreme Court of California. The Clerk is directed to

administratively close this docket, pending further order. The

parties shall notify the clerk of this court within seven days

after the Supreme Court of California accepts or rejects

certification, and again within seven days if that court accepts

certification and subsequently renders an opinion. The panel

retains jurisdiction over further proceedings.

IT IS SO ORDERED.