A federal judge has denied Southwest Airlines' motion for summary judgment in a long-running class action brought by flight attendants who say the carrier's attendance policy pushed them closer to losing their jobs simply for taking family and medical leave. The ruling clears the case for a jury trial set to begin October 13 in San Francisco.
The case, Roreste Refuerzo v. Southwest Airlines Co., case number 22-cv-00868-JSC, is being heard in the U.S. District Court for the Northern District of California. According to the Mountain Democrat, Judge Jacqueline Scott Corley ruled that Southwest's broad argument defending its attendance policy as lawful was procedurally improper, and she also criticized the airline's late legal argument and weaknesses in its evidence. Oakland-based Erlich Law Firm, which represents the plaintiffs and has more than 25 years of experience holding employers accountable for illegal actions against workers, called the ruling a procedural victory, per the same account.
At the center of the dispute is a policy detail: Southwest's attendance system barred any employee who used even one day of FMLA leave in a quarter from reducing attendance points through the airline's quarterly record-improvement program, the outlet reports. Flight attendants accumulate penalty points for unexcused or short-notice absences under Southwest's internal system, and those points can normally be wiped clean by completing a full month or quarter without infractions, according to Aviation.Direct. Plaintiffs allege that the FMLA carve-out left prior disciplinary points frozen in place on workers' records rather than allowing them to clear as intended.
A Policy Dating Back to 2019
The disputed attendance rule dates to March 1, 2019, when Southwest revised its attendance point policy to disqualify flight attendants from point reductions if they took FMLA leave during a quarter, according to reporting cited by Top Class Actions. The lawsuit itself was filed February 10, 2022, by lead plaintiffs Roreste Refuerzo and Selina Cashin, with Erlich Law Firm joined by San Francisco-based Andrus Anderson LLP as co-counsel. Refuerzo was a former flight attendant terminated after accruing attendance points, while Cashin remained an active employee who lost point reductions after using protected leave, per the same reporting.
Judge Corley had already rejected an earlier attempt by Southwest to end the case, denying the airline's motion to dismiss in May 2022 and ruling that the flight attendants' statutory FMLA claims were not preempted by federal labor law or collective bargaining agreements, according to CaseMine. Airlines frequently argue that flight attendant disputes belong in collective bargaining grievance procedures under the Railway Labor Act rather than federal court, a strategy Southwest did not succeed with here.
Judge Presses Southwest Over Litigation Tactics
The friction between the court and Southwest's legal team resurfaced in August 2026, when Judge Corley criticized the airline's attorneys for using a court-granted exception meant for a narrow late filing to instead seek a full dismissal of the class action, according to View from the Wing. Southwest had missed a key motion deadline in February 2026 and later sought permission only to challenge individual termination causation, but the airline's brief expanded into a broader attack on the entire class lawsuit, the outlet reports.
Southwest has defended its system by pointing to federal FMLA regulations that permit employers to withhold perfect-attendance bonuses from employees on FMLA leave, provided non-FMLA leave is treated the same way. The airline has argued that attendance point reductions function as conditional performance rewards rather than baseline job benefits — a distinction the plaintiffs reject, arguing that point removal determines whether employees keep their jobs at all.
What the Class Action Covers
On September 12, 2024, Judge Corley granted class certification covering two groups: a nationwide injunctive relief class of more than 9,000 flight attendants who took FMLA leave and lost access to point reductions, and a separate nationwide damages class for attendants who were fired. The class action concerns whether employees were put closer to losing their jobs because they took FMLA-protected leave, and the plaintiffs contend the attendance policy contributed to discipline and termination.
Federal law under 29 U.S.C. § 2612 entitles eligible employees who have completed at least 1,250 hours of service over 12 months to up to 12 workweeks of job-protected, unpaid leave per year for qualifying health conditions or family care, according to the U.S. Department of Labor. The law requires covered employers to restore returning workers to equivalent positions without penalizing them for using protected leave. A 2018 Department of Labor Wage and Hour Division opinion letter further affirmed that while employers may freeze attendance points during FMLA leave, removing accrued absenteeism points constitutes an employment benefit under the FMLA — a distinction between freezing points and stripping the ability to erase them that sits at the heart of the plaintiffs' case.
A Broader Legal Trend
Southwest's case is not happening in a vacuum. Legal scrutiny over no-fault attendance point systems has already prompted states like New York to enact legislation in February 2023 explicitly barring employers from assessing points or denying point-reduction benefits to workers taking legally protected leave, according to Phillips Lytle LLP. Labor regulators and state legislatures increasingly view these no-fault systems as a form of indirect retaliation against workers exercising medical leave rights, the firm notes.
Case Heads to a Jury
With summary judgment denied, the parties plan to complete remaining pretrial filings, address evidentiary issues, and participate in court-ordered settlement discussions ahead of the October 13 trial date. A jury will review documents produced during discovery and hear testimony from the plaintiffs, Southwest personnel, and other witnesses unless the case is resolved beforehand.
Jason Erlich of Erlich Law Firm said the firm looks forward to presenting evidence to a jury and seeking accountability from Southwest. “People needing medical care or caring for seriously ill family members should not have to worry that protected leave will put their livelihood at risk,” Erlich said, according to the Mountain Democrat. The plaintiffs are seeking accountability for what they describe as lost jobs and income tied to the airline's attendance policy.
