I was recently on a Southwest commercial flight when the flight attendant began his pre-flight safety speech. I was expecting the usual sterile seat belt information, exits may be behind you, etc. Instead, the attendant began with, “Remember, it is mandated in the Federal Aviation Regulations that passengers must follow crewmembers’ instructions, so if I tell you to dance, you better dance!” He then turned down the lights and put on disco music…
He continued, “Per the FAR, I need to see you dancing — don’t make me go United on you and kick you off this plane!”
This was all fun and games until we remember the viral story of Dr. Dao getting hurt. Of course, my crewmember’s instruction was merely to dance and not to get off the plane, which carries a different set of implications for passenger rights. Whenever laws and regulations become front page news, friends and family approach new lawyers, expecting that you now know every single law and regulation that ever existed. We know that this is impossible, but it is helpful to learn about hot issues so that you can appear to look like you know everything. Here is a summary of two of the regulations that are at the heart of the story of the recent news stories and subsequent jokes.
“Dance, Dance, Dance Girl” — The Justin Timberlake Obey Rule
Given the complexity of air travel and the many safety implications, FAA has authorized flight crews with great power in the FARs. Crewmembers and pilots purport that mere noncompliance with the simplest instruction can cause a fine or even jail. However, the FAR is not quite so clear:
14 CFR 125.328 Prohibition on Crew Interference
No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated [commercially with 20+ passengers].
Assault/threaten/intimidate? Nod. Makes sense. “Interfere with” is a bit trickier to pin down. When a flight crew tells you to do something, you are legally obligated to do so under their reading of “[interfering] with a crewmember in the performance of the crewmember’s duties.” While there isn’t much clarity on each and every one of the crewmember’s “duties,” given the possibilities, the statute is understandably construed broadly since 9/11. Of course, when the flight attendant on my flight demanded that we dance — and many fun-loving passengers complied — he would be hard pressed to explain how that was “in the performance of [his] duties aboard an aircraft.”
In the Dr. Dao situation, United may have argued that Dr. Dao was in violation of 14 CFR 125.328 because he didn’t obey the crewmembers’ instructions. Then again, that hardly explains his injuries.
Even in compliance with a crewmember’s instruction, you, the commercial airline passenger, do have rights. What are they?
“Get Off My Plane” – The Harrison Ford Bump Rule
Shockingly enough, you do not have a right to be on the flight you paid for. This is pretty unique for consumers — imagine paying for a corn dog at the San Diego County Fair and the corndog artist takes the corndog against your protest:
You: “Hey, I paid for that!”
Guy with colorful corndog top hat: “Yeah, you definitely paid for it, but we decided that we needed it, so I took it away from you. We promise we’ll get you another corndog in an hour or so, or maybe we’ll give you one tomorrow morning for breakfast.”
You: “But I’m hungry nowwwwwwwww.”
We tend to expect to be able to eat our prepaid corndog just like we expect to travel on our prepaid flight. Not so. But, an involuntarily bumped passenger has rights involving compensation and certain efforts the airline must make after the bump. Also, there are certain prerequisites with which the airline carrier must comply to even bump passengers involuntarily.
First, the carrier must attempt to find passengers willing to voluntarily give up their seats for compensation.1 We’ve all heard carriers offer a couple hundred dollars and slowly go up from there. In case you thought they were just being generous … they weren’t. The FAR has teeth.
If a carrier bumps you involuntarily there are a few possible outcomes:
The rules are similar to the above, but the hours change to provide the airlines with more of a cushion to make alternative arrangements for you. For international travel: (b) is 1-4 hours instead of 1-2 hours for domestic travel, and the international cushion in (c) is >4 hours instead of >2 hours.
Further, before the bump, the carrier must provide the unlucky passenger with their rights in writing, so the customer isn’t blindsided.
If being bumped costs you more than the allotted statutory damages, of course you have the right to claim and prove your damages (e.g., hotel fees, event tickets, loss of earnings, etc.) in addition to the statutory compensation.
Remember, this is all for involuntary bumps, or “Involuntary Denied Boarding” per FARs and not delays due to weather, maintenance, or late arriving aircraft. These flight delays are handled differently, even if the delay is the fault of the airline.
So, now you know your right to dance and the potential compensation for being bumped involuntarily. Just don’t take my corndog.
By Jason Evans