Bernstein et al. v. Virgin America et al.

Wage and hour, meal and rest period

Northern District

U.S. District Judge Jon S. Tigar

$77 million

Plaintiffs' lawyers: Olivier Schreiber & Chao LLP, Monique Olivier; Kosinski and Thiagaraj LLP, Alison L. Kosinski, Emily A. Thiagaraj

Defense lawyers: Morgan, Lewis & Bockius LLP, Robert J. Hendricks, Nancy Villarreal, Brendan T. Killeen

In 2015, Virgin America Inc. was accused of not paying its flight attendants minimum wage and overtime. The airline giant argued state labor codes don't apply to flight attendants because they do not work principally or exclusively in California.

That's when partners Alison L. Kosinski and Emily A. Thiagaraj of Kosinski and Thiagaraj LLP teamed up with Monique Olivier, partner at Olivier Schreiber & Chao LLP, to represent a group of flight attendants that included Julia Bernstein, Lisa Marie Smith and Esther Garcia. The trio fought to recoup losses from Virgin for hours worked, wage amounts, wage documentation and provision of meal and rest breaks.

Virgin made preemption arguments, claiming it was exempt from California law because it was an airline company. Bernstein et al v. Virgin America Inc. 3;15-CV-02277 (N.D. Cal., filed May 20, 2015) "There was no union contract, but Virgin acted as if it could ignore California law in the way they paid attendants, even though it was a California-based company," Olivier said. The majority of attendants were based in California.

Virgin was represented by partners Robert J. Hendricks and Brendan T. Killeen of Morgan Lewis & Bockius LLP, who put up an aggressive defense, thanks to their expertise in airline and employment work, according to Kosinski.

"They weren't shy at litigating and challenging every ruling and filing," Kosinski reminisced.

When the flight attendants reached out to Kosinski for help, she quickly recognized Olivier's expertise in class action wage and hour cases, and asked her to collaborate. With Kosinski and Thiagaraj's employment experience, it birthed a formidable partnership.

The list of plaintiffs grew, and U.S. District Judge Jon S. Tigar granted class certification in November 2016 for more than 2,000 flight attendants. The judge granted in part plaintiffs' motion for summary judgment on the damages after three rounds of briefings. Tigar ruled piece by piece over the case, but ultimately ordered Virgin to fork over $77 million. He trimmed 25 percent of the Private Attorney General Act claims.

It was a sharp learning curve for the pair, but Kosinski noted the class members educated the team and explained the ins and outs of the airline industry and flight data. Many of the attendants worked for low wages.

"One of our plaintiffs was working three jobs, just to get by, because she was paid so little," Kosinski said. "I'd flown on Virgin before, but was totally unaware of what was going on behind the scenes as a passenger. I got to know the class's experience while working this case, and I realized that it's about the people."

Getting to know the class members was the best part about the case, in addition to working with Olivier, Kosinski said.

Key legal issues included the scope and application of California law, which Olivier pointed out is still being developed, as Virgin has appealed the judgment.

"There's been some lack of clarity but it's our hope we can close that gap and make it clear that attendants and the airline industry aren't exempt from the protections of California law, which has high protections for workers," Olivier said.

The defense team could not be reached for comment.

-- Gina Kim