Monthly Archives: December 2014

NEW YORK EMPLOYER RESPONSIBILITIES UNDER WAGE THEFT PREVENTION ACT IN 2015

Carriers with New York-based employees are required to provide annual notifications to those employees between January 1st and February 1st under the “Wage Theft Prevention Act”.   Employer notifications must include the following information:

  • The employee’s rate or rates of pay;
  • The overtime rate of pay, if the employee is subject to overtime regulations;
  • The basis of wage payment (per hour, shift or week, piece rate, commission, etc.);
  • Any allowances the employer intends to claim as part of the minimum wage including tip, meal, and lodging allowances;
  • The regular pay day;
  • The employer’s name and any names under which the employer does business (DBA);
  • The physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address; and
  • The employer’s telephone number.

Each notification must be signed by both the employee and the employer and be retained for six years. Employers that fail to meet these requirements may face lawsuits from employees of up to $2,500, plus attorneys’ fees. Please let us know if you need sample notification forms or require further guidance on New York’s Wage Theft Prevention Act.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

REMINDER – SUBSCRIBE TO ECKERT SEAMANS AVIATION BLOG

Eckert Seamans publishes an Aviation Blog, which offers information on developments in the U.S. aviation/regulatory area. Posts provide tactical and timely updates related to emerging legislation, regulations, cases, policies and trends, with a focus on relevant business opportunities and risks.

To access and subscribe to the blog, click here.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

REMINDER: PART 382 ANNUAL REPORTS DUE TO DOT ON JANUARY 26, 2015

The U.S. Department of Transportation requires all carriers to report to DOT all disability-related complaints for U.S. originating or destined passengers in 2014. The report must be submitted no later than January 26, 2015.

Carriers that did not receive any written disability-related complaints in 2014 are still required to file a “zero” report that shows no complaints. Failure to comply with the reporting requirement may subject a carrier to significant civil penalties. Both foreign and U.S. carriers have been fined by DOT in the past for failing to submit the required report and for submitting inaccurate information in the report, including improperly categorizing complaints.

The form must be filed through the following website: http://382reporting.ost.dot.gov/. If you do not already have a BTS account to complete this on-line filing, you can register to create an account on the website as well.

Please let us know if you require any assistance in completing or filing this form with DOT.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

RECENTLY ISSUED PENALTIES

The following penalties were issued in November 2014:

Saudi Arabian Airlines Corporation (Saudia) was fined $50,000 on November 26, 2014 for selling air service between Jeddah, Saudi Arabia, and Los Angeles, California, prior to receiving economic authority from the Department. On March 3, 2014, Saudia filed an application for exemption authority to provide scheduled foreign air transportation between Saudi Arabia and the United States, which was granted by DOT’s Office of International Aviation on March 24, 2014. Prior to receiving authority from DOT, however, Saudia launched an advertising campaign about its proposed service via the carrier’s website, emails, newspapers, magazines, and social media sites. Despite the fact that Saudia did not operate service on the proposed route prior to receiving authorization, DOT determined the carrier’s advertising campaign violated sections 41301 and 41712 and fined Saudia $50,000.

McCauley Propeller Systems (McCauley) was fined $238,000 for allegedly violating the Hazardous Materials Regulations (HMR). McCauley offered two undeclared packages hazardous materials to FedEx for shipment by air. After conducting an investigation the FAA determined that McCauley did not declare the hazardous materials, nor were the shipments properly classed, described, packaged and marked in accordance with HMR requirements. In addition, the company failed to provide emergency response information with the packages and did not ensure its employees received proper training for shipping hazardous materials.

AAR Aircraft Services (AAR) was fined $150,000 for alleged aircraft maintenance violations. A FAA investigation determined that AAR used an unqualified repairman to perform at least 18 maintenance tasks on a major air carrier’s aircraft between September 2012 and 2013. FAA found that the repairman performed maintenance that was not authorized by his repairman certificate and fined AAR $150,000.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

FAA ISSUES FINAL POLICY ON AVIATION FUEL TAX REVENUE

On November 21, 2013, the Federal Aviation Administration (FAA) published a proposed amendment to its Revenue Use policy which in part addressed the use of revenue from taxes on aviation fuel imposed after December 30, 1987. Airports Council International North America (ACI-NA) filed comments on the proposed amendment, which were taken into account by the drafters of the final Revenue Use policy.

The Administration’s final policy states that proceeds from state or local taxes on aviation fuel must be used for airport-related purposes. The policy affects those airport operators that have accepted Federal assistance and any state and local governments that impose taxes on aviation fuel. Some key issues of the policy are:

  • State or local taxes on aviation fuel imposed after December 30, 1987 are subject to revenue use requirements. Revenues from a State tax on aviation fuel may be used to support a State aviation program, and airport revenues may be used on or off the airport for noise mitigation; and
  • Based on a comment by ACI-NA that it would be unfair to penalize airport sponsors for misuse of revenues from taxes imposed and used by another entity, the FAA has revised the policy to recognize the difference between taxes controlled by the airport sponsor and those that are not, for compliance purposes.

The Federal notice regarding the final policy is available at the following link: http://www.gpo.gov/fdsys/pkg/FR-2014-11-07/pdf/2014-26408.pdf.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

ALPA PRESSING CONGRESS TO PREVENT NORWEGIAN AIR INTERNATIONAL FROM OPERATING IN THE U.S.

The Air Line Pilots Association (ALPA) recently sent a letter to the U.S. Senate asking for approval of prior legislation passed by the House of Representatives that would prohibit federal funds from being used to approve foreign air carrier permits for any airline that would violate U.S. law or the U.S.-EU open-skies agreement. The legislation in question was specifically directed at the foreign air carrier permit submitted by Norwegian Air International almost one year ago. The application, which has received scrutiny from numerous interests including U.S. carriers and pilots’ associations, remains pending with DOT’s Office of International Aviation.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

FLYERS RIGHTS GROUPS PUSH FOR MORE ACCOUNTABILITY DURING TARMAC DELAYS

Under DOT’s infamous tarmac delay rule, carriers face civil penalties of up to $27,500 per passenger if an aircraft remains on the tarmac for more than three (for U.S. carriers) or four (for foreign carriers) hours without giving passengers the opportunity to deplane. Since the Department’s tarmac delay regulation became effective, DOT has issued cease-and-desist orders assessing civil penalties in 15 cases involving 43 flights for violations of the tarmac delay rule. Total civil penalties to date are approximately $4,000,000.

Current laws require any money collected from airlines in such proceedings be paid to the U.S. Treasury. Nothing in the regulation requires carriers to make payments directly to affected consumers. This is because regulations affecting tarmac delays and accommodating passengers with disabilities don’t require the airlines to compensate passengers directly. Other rules, notably those for denied boarding, force an airline to pay passengers when they’re in violation.

Consumers rights’ groups are critical of the current procedures for paying fines in tarmac delay situations and would like to see airlines compensate passengers directly. A leading aviation consumer protection group, FlyersRights, is pushing for a new Passenger Bill of Rights that would give half the fines imposed for violating DOT’s tarmac delay rules to affected passengers. It also sets minimum fines for such delays. While nothing in DOT’s prior or current rulemakings suggest that it will change its position with respect to this issue, it is nevertheless worth noting and would certainly make passengers more vigilant about reporting violations of the tarmac-delay rule, or any other government regulation.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

DOT REPORTS INCREASE IN CONSUMER COMPLAINTS; REMINDER ABOUT ANNUAL DISABILITY REPORTS

In early November, the U.S. Department of Transportation’s (DOT) Aviation Consumer Protection Division reported a significant uptick in consumer complaints as compared to last year. From January to September 2014, the Department received 12,350 consumer complaints, up from the total of 10,444 filed during the first nine months of 2013. This represented an 18.2 percent increase. DOT investigates each of the complaints it receives to determine the extent to which carriers are in compliance with federal aviation consumer protection regulations and routinely discusses with individual carriers spikes or significant variations in complaint types or complaint levels.

It is therefore very important not only to track and maintain a record of each consumer complaint that is received, but to ensure that all complaint response deadlines are met. 14 C.F.R. Part 382 requires that disability-related complaints be responded to, in writing, within 30 days. Pursuant to the Department’s “Enhancing Airline Passenger Protection” regulations, all other complaints must be acknowledged, in writing, within 30 days and a written substantive response must be provided to the complainant within 60 days. DOT is focusing its attention on this topic and recently fined Turkish Airlines $300,000 for systematically failing to meet its complaint response obligations.

Moreover, under 14 C.F.R. Part 382, carriers are required to report to DOT all disability-related complaints they received in 2014 for U.S. originating or destined passengers. This report must be submitted no later than January 26, 2015.

Carriers that did not receive any written disability–related complaints in calendar year 2014 are still required to file a “zero” report that shows no complaints. Failure to comply with the reporting requirement may subject a carrier to significant civil penalties. Both foreign and U.S. carriers have been fined by DOT in the past for failing to submit the required report.

The form must be filed through the following website: http://382reporting.ost.dot.gov/. If you do not already have a BTS account to complete this on-line filing, you can register to create an account on the website as well.

Please let us know if you require any assistance in completing or filing this form with DOT.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

NTSB DETERMINES FAA CAN FINE UAS OPERATORS

The NTSB recently issued an important decision in the developing area of who has authority to regulate unmanned aircraft systems (UAS). The NTSB found that UAS are “aircraft” under the plain language of the law, and that FAA rules prohibiting “careless or reckless” operation of aircraft apply to UAS operators. The NTSB decision overturns an earlier ruling by an administrative law judge. The case involved Raphael Pirker, a UAS operator who had been hired to film the University of Virginia campus. During the filming Pirker allegedly operated a small UAS in close proximity to numerous individuals, buildings, and other structures in a reckless manner. As a result the FAA issued Pirker a $10,000 fine.

An administrative law judge vacated the fine after ruling that the FAA had not historically enforced its aircraft regulations against model aircraft, which would include the UAS at issue, and that therefore the FAA could not issue a fine because it had not issued any regulations specifically for UAS. The NTSB overruled the administrative law judge on November 18, 2014 by finding that the UAS did meet the definition of “aircraft,” that there was no exclusion in the definition for model aircraft, and that therefore the FAA could take enforcement action against a UAS operator. The NTSB remanded the case to the administrative law judge to determine if Pirker’s UAS was in fact operated carelessly or recklessly. The case is a big win for the FAA, but there continues to be increased pressure on the FAA to publish proposed rules for small UAS. The NTSB decision can be found at http://www.ntsb.gov/legal/pirker/5730.pdf.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

Winter has arrived … are you prepared for tarmac delays?

Under the U.S. Department of Transportation’s (DOT) Enhancing Airline Passenger Protections rule all carriers that operate to the U.S. must develop and implement a Contingency Plan for Lengthy Tarmac Delays.  14 C.F.R. 259.4.  Pursuant to Section 259.4, carriers must coordinate their Plan with the Transportation Security Administration (TSA), Customs and Border Protection (CBP), and the relevant airport authority at all of the U.S. airports to which they operate.

Notwithstanding the above, when the snow starts to fall and airports begin to close, minimal coordination efforts will in most cases not help carriers avoid a lengthy tarmac delay.  We therefore recommend you take the time now to discuss and implement internal procedures with your airport staff, station managers, and ground handlers to determine what actions will be taken when a flight is diverted or delayed due to inclement weather.  For instance, documentation of all communications and other efforts with CBP, the airport and/or terminals to deplane the passengers are crucial to a successful defense of a DOT tarmac delay investigation.  These extra efforts are very important, as DOT has the statutory ability to fine carriers up to $27,500 per passenger in the event that a tarmac delay exceeds three or four hours (for U.S. and international carriers, respectively).

In addition to the rule’s general prohibition against tarmac delays, carriers are also required to file a BTS Form 244 “Tarmac Delay Report” on a monthly basis for any covered flights that experienced a tarmac delay of more than three (3) hours, including diverted flights and cancelled flights on which passengers were boarded and subsequently deplaned.  The reports are due within 15 days after the end of the month in which the delay occurred, and each report must contain seventeen specific pieces of data, including: (1) carrier code; (2) flight number; (3) departure airport (three letter code); (4) arrival airport (three letter code); and (5) day of flight operation (year/month/day).

Please note that Tarmac Delay Reports are required when a covered carrier experiences a tarmac delay of more than three (3) hours.  This three hour requirement applies to U.S. and foreign carriers alike.  Carriers are not, however, required to submit “negative” reports (reports that no tarmac delays occurred).  It is important to note that this reporting requirement is not applicable to foreign air carriers operating charter flights to the U.S. that do not pick up U.S. originating passengers.  In code-share situations, it is up to the carriers to determine whether the operating carrier or the marketing carrier files the Tarmac Delay Report.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).