Did UNITED break the law by trying to enforce a POLICY and not a real law!

In Health and Safety we are always asking in INCIDENT INVESTIGATIONS to drill down and look for ROOT CAUSE events in the investigation plus bring about CORRECTIVE ACTIONS, in those finding , here a key items listed based upon law vs policy that folks normally dont know.

United Express (Republic Airlines) had to send four crew members to work a flight the next morning. The weekend was operationally challenging, this was a replacement crew, if the employees didn’t get to Louisville a whole plane load of passengers were going to be ‘bumped’ when that flight was cancelled, and likely other passengers on other flights using that aircraft would have their own important travel plans screwed up as well.

What seems to have happened here is that the flight wasn’t actually oversold in advance (rather it was booked to capacity), but then last minute four United employees needed to be transported to Louisville, so they could work a flight from there the next day.

Each airline has its own policies about what it will do for delayed passengers waiting at the airport; there are no federal requirements. If you are delayed, ask the airline staff if it will pay for meals or a phone call. Some airlines, often those charging very low fares, do not provide any amenities to stranded passengers. Others may not offer amenities if the delay is caused by bad weather or something else beyond the airline's control. Contrary to popular belief, for domestic itineraries airlines are not required to compensate passengers whose flights are delayed or canceled. As discussed in the chapter on overbooking, compensation is required by law on domestic trips only when you are "bumped" from a flight that is oversold. On international itineraries, passengers may be able to recover reimbursement under Article 19 of the Montreal Convention for expenses resulting from a delayed or canceled flight by filing a claim with the airline. If the claim is denied, you may pursue the matter in small claims court if you believe that the carrier did not take all measures that could reasonably be required to avoid the damages caused by the delay. 

If the purpose of your trip is to close a potentially lucrative business deal, give a speech or lecture, attend a family function, or connect to a cruise, you might want to allow a little extra leeway and take an earlier flight. In other words, airline delays aren't unusual, and defensive planning is a good idea when time is your most important consideration.

Some flights are delayed on the airport "tarmac" before taking off or after landing. DOT rules prohibit most U.S. airlines from allowing a domestic flight to remain on the tarmac for more than three hours unless:

• the pilot determines that there is a safety or security reason why the aircraft cannot taxi to the gate and deplane its passengers, or
• Air traffic control advises the pilot that taxiing to the gate (or to another location where passengers can be deplaned) would significantly disrupt airport operations.

What’s unusual is that they were only booked on the flight last minute, and apparently everyone had already boarded. That’s what makes this exceptionally rare, and one has to wonder how exactly that happened, especially when they had already boarded a flight that was at capacity.

So far the conversation has centered around how this passenger was involuntarily denied boarding. The Department of Transportation has specific guidelines in place for how airlines can deny boarding to passengers. However, that may not be the case at all here. First let me say that I’m not a lawyer, so take what I say with a grain of salt (though I’ve talked to some lawyer friends about this, and they seem to have a similar perspective).

Overbooking is not illegal, and most airlines overbook their scheduled flights to a certain extent in order to compensate for "no-shows." Passengers are sometimes left behind or "bumped" as a result. When an oversale occurs, the Department of Transportation (DOT) requires airlines to ask people who aren't in a hurry to give up their seats voluntarily, in exchange for compensation. Those passengers bumped against their will are, with a few exceptions, entitled to compensation.

Voluntary Bumping

Almost any planeload of airline passengers includes some people with urgent travel needs and others who may be more concerned about the cost of their tickets than about getting to their destination on time. DOT rules require airlines to seek out people who are willing to give up their seats for compensation before bumping anyone involuntarily. Here's how this works. At the check-in or boarding area, airline employees will look for volunteers when it appears that the flight has been oversold. If you're not in a rush to arrive at your next destination, you can give your reservation back to the airline in exchange for compensation and a later flight. But before you do this, you may want to get answers to these important questions:

• When is the next flight on which the airline can confirm your seat? The alternate flight may be just as acceptable to you. On the other hand, if the airline offers to put you on standby on another flight that's full, you could be stranded.
• Will the airline provide other amenities such as free meals, a hotel room, transfers between the hotel and the airport, and a phone card? If not, you might have to spend the money it offers you on food or lodging while you wait for the next flight.

DOT has not mandated the form or amount of compensation that airlines offer to volunteers. DOT does, however, require airlines to advise any volunteer whether he or she might be involuntarily bumped and, if that were to occur, the amount of compensation that would be due. Carriers can negotiate with their passengers for mutually acceptable compensation. Airlines generally offer a free trip or other transportation benefits to prospective volunteers. The airlines give employees guidelines for bargaining with passengers, and they may select those volunteers willing to sell back their reservations for the lowest price. If the airline offers you a free ticket or a transportation voucher in a certain dollar amount, ask about restrictions. How long is the ticket or voucher good for? Is it "blacked out" during holiday periods when you might want to use it? Can it be used for international flights?

Involuntary Bumping

DOT requires each airline to give all passengers who are bumped involuntarily a written statement describing their rights and explaining how the carrier decides who gets on an oversold flight and who doesn't. Those travelers who don't get to fly are frequently entitled to denied boarding compensation in the form of a check or cash. The amount depends on the price of their ticket and the length of the delay:

• If you are bumped involuntarily and the airline arranges substitute transportation that is scheduled to get you to your final destination (including later connections) within one hour of your original scheduled arrival time, there is no compensation.
• If the airline arranges substitute transportation that is scheduled to arrive at your destination between one and two hours after your original arrival time (between one and four hours on international flights), the airline must pay you an amount equal to 200% of your one-way fare to your final destination that day, with a $675 maximum.
• If the substitute transportation is scheduled to get you to your destination more than two hours later (four hours internationally), or if the airline does not make any substitute travel arrangements for you, the compensation doubles (400% of your one-way fare, $1350 maximum).
• If your ticket does not show a fare (for example, a frequent-flyer award ticket or a ticket issued by a consolidator), your denied boarding compensation is based on the lowest cash, check or credit card payment charged for a ticket in the same class of service (e.g., coach, first class) on that flight.
• You always get to keep your original ticket and use it on another flight. If you choose to make your own arrangements, you can request an "involuntary refund" for the ticket for the flight you were bumped from. The denied boarding compensation is essentially a payment for your inconvenience.
• If you paid for optional services on your original flight (e.g., seat selection, checked baggage) and you did not receive those services on your substitute flight or were required to pay a second time, the airline that bumped you must refund those payments to you.

·        United couldn’t have just sent another plane to take their crew even if they had such a plane it’s not clear they had the crew to operate it legally, or that they could have gotten the plane back to Chicago in time legally so prevent ‘bumping’ via cancellation the whole plane load of passengers it was supposed to carry next.

·        If the passenger could have just taken Uber, why not the crew? because United doesn’t get to transport its crew any way it wishes whenever it wishes, they’re bound by union contracts and in any case they were following standard established procedures. We can debate those procedures, that’s productive, but United didn’t do anything out of the ordinary.

More importantly, United didn’t do it because Department of Transportation regulations set maximum required compensation for involuntary denied boarding (in this case 4 times the passenger’s fare paid up to a maximum of $1350). So they’re not going to offer more than that for voluntary denied boardings, especially since the violent outcome here wasn’t expected and the United Express gate agent had no authority to do more.

The ASO not the Chicago Aviation Police overreacted and appear to have used way too much force. One officer is already on leave because of the incident, the Aviation Police recognize some fault is likely there — and that’s a pretty high hurdle to climb considering the Chicago Police Department immediately stood up for an officer by claiming horribly that he had simply ‘fallen on his face’.

Fault here lies with:

·        United for not having as many seats as they sold, although it wasn’t because they sold more seats than the plane held, it was because their operation became a mess and they needed to salvage that to inconvenience the fewest passengers overall. It wasn’t “to maximize their profits” although they certainly wanted to limit their losses by limiting passenger inconvenience.

·        The passenger who should have gotten off the plane when ordered to do so. It sucked for him and wasn’t his fault, but refusing airline and ASO instructions unless designed to provoke a violent response for media attention to promote a civil rights cause is a bad idea.

·        The ASO shouldn’t have responded with the force they did. They’re the most to blame. If they hadn’t used as much force this whole thing would never even have been a story.

When the Department of Transportation began regulating denied boarding in the 1970s, there were about 150,000 involuntary denied boardings in the U.S. per year — and now with many more passengers the number there are in the 40,000s. As flights have gotten more full, the percentage of passengers denied boarding has gone down.

Not every customer service situation is a crime. The passenger wasn’t denied boarding — he had a confirmed seat, and was allowed to board and take that seat.

Later they come onboard and asked him to get off the plane. At that point that’s no longer being denied boarding, but rather being refused transport. United’s contract of carriage addresses both of these situations:

·        Here’s the contract of carriage regarding denied boarding compensation

·        Here’s the contract of carriage regarding refusal to transport

The contract of carriage lists a bunch of reasons that the airline can refuse transport to someone, though a flight being oversold after a passenger has boarded isn’t one of them. In looking at the Department of Transportation regulations, I don’t see anything that clarifies how they define “denied boarding.”

In light of that, it sure seems like this was a case of refusal to transport, rather than a case of denied boarding, since the passenger wasn’t denied boarding. If this was a refusal to transport case, then United had no legal grounds on which to refuse him transport, based on the contract of carriage.

If that’s the case, did United use ASO to incorrectly enforce a contract?

When this story first emerged it sure seemed to me like United may have technically been within their rights to refuse this passenger transport, but even that isn’t looking likely at this point.

It would seem to me that once passengers have boarded, the only way to have them get off the plane is through a voluntary system, by offering compensation that they agree to. Without that, this isn’t a denied boarding case, but rather a refusal to transport case.