Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—N.D. Cal.: Southwest Airlines denied decertification in flight attendants’ FMLA class action, (May 19, 2026)

By Tulay Turan, J.D.

Southwest’s disciplinary policy raised common questions of law or fact.

A federal district court in California denied Southwest Airlines’ motion to decertify three classes of flight attendants who alleged the company’s point-based discipline system violated the FMLA and state law. The nationwide damages class met Rule 23(a)’s requirements, and the California subclass and nationwide injunction classes met Rule 23(b)’s requirements where common issues predominated (Refuerzo v. Southwest Airlines, No. 22-cv-00868-JSC (N.D. Cal. May 18, 2026)).

The plaintiffs are flight attendants for Southwest Airlines. Southwest uses a point system to track employees’ attendance at work shifts, where each infraction adds points to the employee’s record, and employees are terminated once they accumulate 12 points. Employees receive point reductions if they meet certain criteria regarding attendance during December or a given calendar quarter. Employees are not eligible for any point reductions if they use FMLA leave, which the flight attendants asserted unlawfully interfered with their use of FMLA leave.

Complaint. The flight attendants filed a complaint alleging five class-based causes of action against Southwest, including FMLA interference, discrimination, and retaliation; discrimination and retaliation in violation of California’s Family Rights Act (CFRA); wrongful termination; and unfair competition.

Class certification. The FMLA causes of action were brought on behalf of nationwide classes, and the other three were brought on behalf of California sub-classes. The court previously denied Southwest’s motion to dismiss the complaint and granted the flight attendants’ motion for class certification, in part, certifying three classes.

The court’s order stated that the flight attendants’ claims for FMLA interference, wrongful termination, and unfair competition were certified as to the following classes: (1) a Rule 23(b)(2) Nationwide Injunctive Relief Class consisting of all Southwest flight attendants based in the U.S. since March 1, 2019, to present who exercised their rights to family and medical leave and consequently lost access to disciplinary points reduction; (2) a Rule 23(b)(2) California Subclass consisting of all Southwest flight attendants based in California since March 1, 2019, to present who exercised their rights to family and medical leave and consequently lost access to disciplinary points reduction; and (3) a Rule 23(b)(3) Nationwide Damages Class consisting of all Southwest flight attendants based in the U.S. since March 1, 2019, to present who exercised their rights to family and medical leave and consequently lost access to disciplinary points reduction and were subsequently terminated for an accumulation of disciplinary points.

Motion to decertify. Southwest filed this motion to decertify all three classes, arguing that the flight attendants had not established all class members’ Article III standing and had not satisfied Rule 23(a), (b)(2), and (b)(3) requirements.

Standing. The court first denied Southwest’s motion as to Article III standing. Southwest argued the Nationwide Damages Class should be decertified because “many” class members do not have standing. The company argued many class members did not suffer any injury in fact, two class members did not suffer any discernable loss, one class member released her claims, and other class members were not deterred from taking FMLA leave. However, for a class to be certified, only one named plaintiff must demonstrate Article III standing. Here, Southwest did not challenge the (b)(3) class representative’s standing. Thus, the court denied Southwest’s motion on this basis.

Numerosity. Next, the court found the Nationwide Damages Class met the requirements of Rule 23(a). Regarding numerosity, the court noted that nothing had changed since the certification order. At the time of certification, the (b)(3) class was sufficiently numerous when it had at least 29 flight attendants, and the final class list has 34 members. The court rejected Southwest’s arguments that 14 members “should be removed” and that at least 11 did not have standing. The court found a motion to decertify was not the proper motion to raise these arguments.

Commonality and typicality. The court also found the Nationwide Damages Class continued to satisfy commonality and typicality for the reasons identified in the class certification order. The order stated that there was a “single common question of law or fact that resolves a central issue,” namely a determination of whether Southwest’s policy interfered with flight attendants’ FMLA rights.

Regarding typicality, the order explained that the question was whether each class member was terminated for points accumulation after being denied point reduction because of taking FMLA leave, which was the same question posed by the class representative’s claims. The flight attendants continued to raise the same injury and the same common questions of law and fact. Thus, the class continued to satisfy the commonality and typicality requirements.

Adequate representative. Turning to the fourth requirement under Rule 23(a), the court found the named plaintiff was an adequate representative of the Nationwide Damages Class. Southwest argued he was not an adequate representative because he failed to mitigate his damages. However, the court found that oHowevhis failure to mitigate, if proven, would not defeat class-wide liability or eliminate class-wide recovery. Rather, it would reduce his individual damages award. Therefore, even if his damages are different from other class members, that did not make him unable to prosecute issues such as liability and causation “vigorously on behalf of the class.”

Predominance and superiority. Next, the court found the Nationwide Damages class satisfied Rule 23(b)(3) regarding predominance and superiority. The certification order stated that the common issue of whether Southwest’s policy penalizes FMLA leave predominated, and common proof in the form of the company’s own records can establish whether a flight attendant was terminated because she was denied points reduction based on taking FMLA leave. The order also stated that a class action is superior because it will serve to streamline time, effort, and expense, and the predominance of common questions make a class action a more manageable device than individual litigation.

Here, for those reasons, common issues continue to predominate, and a class action remains superior, the court found. It is still true that class-wide proof can establish the flight attendants’ taking of FMLA leave constituted FMLA interference. The flight attendants intend to prove liability and causation through class-wide documentary evidence such as attendance records and testimony from Southwest’s representatives regarding Southwest’s policy and how it operates.

The court rejected Southwest’s argument that “individual questions as to damages overwhelm common questions.” The need for individualized findings as to the amount of damages does not defeat class certification, the court said. In addition, Southwest intended to raise the failure-to-mitigate defense as to only five class members. “Five witness’s testimony on an affirmative defense to damages does not predominate the extensive common proof in this case,” the court wrote.

Rule 23(b)(2) classes. The court also denied Southwest’s motion to decertify the (b)(2) classes, which are the California subclass and the Nationwide Injunctive Relief Class.

The court rejected Southwest’s argument that the (b)(2) classes did not satisfy the commonality requirement. This argument was the same as its commonality challenge with respect to the (b)(3) classes, and, therefore, the court found the (b)(2) classes satisfied the requirement for the same reasons previously discussed. Southwest’s disciplinary policy alone raised common questions of law or fact which resolve a central issue.

Class representative. The court also rejected Southwest’s arguments regarding the (b)(2) class representative. The arguments regarding her standing, typicality, and adequacy of representation boiled down to whether she was injured as a result of taking FMLA leave. The flight attendants did not address these arguments about her accrual of benefits and non-FMLA absences, but rather, reiterated the court’s prior ruling that she has standing to pursue injunctive relief, which Southwest’s motion did not contest.

Also, during oral argument, both parties raised new or different arguments about the class representative, leaving her status unclear. Because the flight attendants retracted that they would substitute a different representative and Southwest did not raise her standing to pursue injunctive relief until its reply brief, the court said it required further briefing on an appropriate (b)(2) class representative. Nonetheless, it denied Southwest’s motion to decertify the (b)(2) classes without prejudice.

Leave to amend. Finally, the court granted the flight attendants leave to file a motion to substitute a new (b)(2) class representative in whole or in part. It also granted Southwest leave to file a partial motion for summary judgment as to specific class members.

The case is No. 22-cv-00868-JSC.

Judge: Corley, J.

Attorneys: Jennie Lee Anderson (Andrus Anderson) for Roreste Refuerzo and Selina Cashin. Annie Lau (Fisher & Phillips) for Southwest Airlines Co.

Companies: Southwest Airlines Co.

Cases: EmployeeLeave ClassActions StateLawClaims CaliforniaNews