Certification Granted in Southwest Airlines FMLA lawsuit

Oakland, CAA California federal judge certified a Southwest Airlines class action lawsuit filed by flight attendants accusing the airline of systemic interference with employees’ federally protected family and medical leave rights. The California labor complaint accuses Southwest Airlines of penalizing employees who took legally entitled leave, leading to denied disciplinary point reductions, and in some cases, wrongful terminations.

The flight attendants argue workers who took family and medical leave were disqualified from record-improvement mechanisms, which reward good attendance. 

U.S. District Judge Jacqueline Scott Corley certified two nationwide classes in September 2024 that go back to March 2019. A nationwide injunctive class comprises flight attendants who took Family and Medical Leave Act (FMLA) time and lost the chance to have the disciplinary "points" Southwest gave them reduced. And a nationwide damages class includes flight attendants who lost access to disciplinary points reductions and were terminated. According to Law360, the plaintiffs also pitched injunctive and damages subclasses covering California-based flight attendants, with only the injunctive class winning approval. Judge Corley's order said the plaintiffs estimate the nationwide injunctive class covers over 9,000 people.

Southwest Airlines Point Policy

Southwest tracks “points” for attendance and disciplinary violations. When flight attendants reach 12 points, they can be terminated. They can reduce their points through Southwest’s “record improvement” mechanisms, which reward good attendance under the following four circumstances:

(1) No Chargeable Occurrences During a Quarter;
(2) Perfect Attendance During a Quarter;
(3) Fourth Quarter Record Improvement Bonus;
(4) December Record Improvement.

In March 2019, Southwest instituted a new policy that disqualified flight attendants who took intermittent or continuous leave under FMLA for less than 14 days by disqualifying them from record-improvement mechanisms. Plaintiffs state that employees who exercise the right to protected leave lose the benefit of point reductions to which they would otherwise be entitled.

Southwest Plaintiffs

Plaintiff Roreste Refuerzo was hired by Southwest in 2006 as a flight attendant, according to court documents. His application in May 2019 for intermittent FMLA leave was granted, which he used at the end of 2019. However, because Refuerzo used this leave, he did not receive the two-point deduction that he was entitled to, so by the end of the year he accumulated 9.5 disciplinary points instead of 7.5.

When Mr. Refuerzo called in sick in January 2020, Southwest incorrectly assessed 2.5 disciplinary points against him for reporting his illness less than two hours prior to the scheduled check-in, even though he had reported his illness exactly 2 hours before the scheduled check-in. Having reached the the 12-point termination threshold, Southwest terminated Refuerzo in February 2020.

Plaintiff Selina Cashin began working for Southwest as a flight attendant in 2015. She applied for intermittent FMLA leave in May 2018. Cashin could not return from her intermittent leave until completing her FMLA intake pursuant to Southwest’s policies. However, Ms. Cashin could not complete her FMLA intake until Southwest granted her access to Southwest’s portal. Southwest failed to provide Ms. Cashin access to the portal until less than two hours before her next scheduled flight, when she had already checked in pursuant to Southwest’s attendance requirements. So, Southwest assessed Ms. Cashin disciplinary points for her absence on the flight she had checked into instead of characterizing her absence as FMLA leave, and fired her in June. Cashin grieved her termination through the Transport Workers Union Local 556 and was reinstated as a flight attendant a month later.

Cashin took time off work due to an injury, which Southwest double-counted both paid medical and FMLA leave. In April 2022, Southwest approved Cashin’s request for intermittent leave of two three-day absences per month, but one month later, Southwest said her disciplinary point total was 11. Though a quarterly reduction of 2 points through one of Southwest’s record-improvement mechanisms would have lowered her disciplinary point total, any use of her approved intermittent FMLA leave would make her ineligible for a quarterly reduction. Cashin claims three causes of action against Southwest:

(1) interference in violation of FMLA,
(2) wrongful termination,
(3) unfair competition

Southwest Airlines Disagrees

Local paid sick leave laws is a repeat performance for Southwest. In 2023, the airline refused to comply with a Colorado ordinance intended to give Denver-based flight attendants the right to protected paid sick leave. The State of Colorado dished out fines of more than $1.3 million but the airline argued that flight attendants weren’t protected by the sick leave rules because of a national collective bargaining agreement.

The Southwest FMLA class action lawsuit is Refuerzo, et al. v. Southwest Airlines Co., Case No. 3:22-cv-00868, in the U.S. District Court for the Northern District of California.