This was all due to moral luck
If four passengers had taken the United offer to surrender their seats, or if the passenger selected by the agent had complied, grumbling quietly, we would neither know about this horrific episode nor would anyone be talking about it. Yet the United employees would still have lied, and would still have abused United customers. They just didn’t get away with it, that’s all. They were unlucky.
NOW passengers are informed.
Fine print is technical disclosure, but especially in the era of electronic ticketing, not actual or ethical disclosure. Before this episode, most flyers didn’t know what they had agreed to regarding overbooking, nor were they even aware that there was such a thing as “involuntary bumping” A lot more are aware now. From travel site One Mile At A Time:
When an airline knows that a flight is likely to be oversold, they’re required to solicit volunteers. Sometimes airlines will ask at check-in, and other times they’ll ask at the gate. When it comes to a voluntary denied boarding there are no regulations as to what you get….
When airlines can’t find volunteers and still have more passengers than seats, they need to involuntarily deny people boarding. Every airline has a clause in their contract of carriage allowing them to do this. Furthermore, airlines all have procedures they use for determining who gets bumped. Some airlines bump the people who don’t have seat assignments. Other airlines decide based on who checked in last. Others decide based on status and the booking class you have.
Do note that the number of passengers being involuntarily denied boarding was at a 20 year low in 2016. Out of roughly 660 million passengers last year, only 40,000 were involuntarily denied boarding, which is roughly 0.6 involuntary denied boardings per 10,000 seats.
If you’re involuntarily denied boarding, the Department of Transportation regulates what you’re entitled to. Here are the rules, as published by the DOT:
- 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.
As you can see, in many cases you’re entitled to a sizable cash payment, up to $1,350. However, here’s the dirty secret of the airlines. In a vast majority of cases they’ll only offer cash compensation if you specifically ask for it. Otherwise they’ll offer you the same voucher they gave anyone who was voluntarily denied boarding.
Note, however, that none of this involves taking people who have already been seated off of the plane. That’s because bumping doesn’t work that way, and also because the United flight in question wasn’t overbooked, as discussed below.
When passengers are seated, the price goes up.
The incompetent United staff was using voluntary bumping procedures after they were no longer operable. Did they know that? I’m guessing no. Neither did the passengers, certainly the news media wasn’t aware, and maybe even CEO Munoz didn’t figure it out, but who knows? All he does is say what he thinks he can get away with.
As a result, the passengers were offered the going rate for to give up seat assignments when they would actually be giving up seats. They had possession at that point. No wonder there were no volunteers, for this was a unique situation. The United employees were too dim regarding market theory to realize that the customers had all the leverage at that point, and they had to start offering a lot more than $400 and $800 dollars. I might give up the chance to be seated on a plane for $800, but once I’m boarded, seated, my carry-on luggage is stowed and I’ve settled in with full expectations of getting to my destination as planned, I better hear a real sweet deal. If the United staff has said, “Folks, we have a special situation here. We’re prepared to pay 5,000 bucks, plus a free round trip ticket to anywhere United flies, in exchange for your seat. First four hands up gets this deal of a lifetime,” I have no doubt at all that there would have been lots of hands.
It is fully within reasonable probability that an airline might find itself requiring to clear one or more seats in an already seated and filled flight. It is also obvious, or should be, that vacating such seats will be much more difficult than dealing with an overbooked situation (which this was not) at the gate. Why didn’t United have a policy and procedure for such a contingency? This is basic Ethics Chess: foresee potential ethical dilemmas before they occur; take steps to avoid them, but know what you must do when and if they occur.
Although the episode involved dishonesty, disrespect, unfairness, arrogance, irresponsible conduct, and a culture that minimizes service and regard for the customer, at the root of all of it was incompetence.
The news media followed United’s cover story rather than reporting the facts.
It’s amazing, when you think about it. This story never seemed quite right. As mentioned in the previous post on this topic, nobody, including me, had ever heard of an airline telling seated passengers that they had to leave the plane. Nevertheless, the passengers accepted what they were told by United, the United officials continued to explain the situation as caused by overbooking, and the news media went right along with it too. The provocatively-named blog Naked Capitalism nails it (much thanks to Alexander Cheezem, who sent me the link just in time to make it into this post) thoroughly; I’ve highlighted a couple of sections in red, because the are crucial.
This widespread misreporting has the unfortunate effect of making United’s abuse seem like a disastrous handling of a routine problem when it was much worse than that. For instance, Amy Davidson of the New Yorker gets this wrong even with the knowledge that United decided to bump passengers to seat crew:
United overbooked it; that happens all the time. The airline let everybody board, and then decided that it needed four more seats to get some crew members to Louisville for work the next morning.
Let us underscore: even putting aside the violence, what happened in this case does NOT happen all the time, and that has legal implications.
Absence of reporting on airline regulations leads to widespread skewing of story in United’s favor. Even though most readers may think United is getting beaten up aplenty in the press, in fact it is getting a virtual free pass as far as its rights to remove a paying passenger with a confirmed seat who has been seated.This seems to reflect the deep internalization in America of deference to authority in the post 9/11 world, as well as reporters who appear to be insufficiently inquisitive. And there also seems to be a widespread perception that because it’s United’s plane, it can do what it sees fit. In fact, airlines are regulated and United is also bound to honor its own agreements.
It is telling, in not a good way, that Naked Capitalism reader Uahsenaa found a better discussion of the legal issues on Reddit than Lambert and I have yet to see in the media and the blogosphere (including from sites that profess to be knowledgeable about aviation):
Lawyer here. This myth that passengers don’t have rights needs to go away, ASAP. You are dead wrong when saying that United legally kicked him off the plane.
First of all, it’s airline spin to call this an overbooking. The statutory provision granting them the ability to deny boarding is about “OVERSALES”, specifically defines as booking more reserved confirmed seats than there are available. This is not what happened. They did not overbook the flight; they had a fully booked flight, and not only did everyone already have a reserved confirmed seat, they were all sitting in them. The law allowing them to denying boarding in the event of an oversale does not apply.
Even if it did apply, the law is unambiguously clear that airlines have to give preference to everyone with reserved confirmed seats when choosing to involuntarily deny boarding. They have to always choose the solution that will affect the least amount of reserved confirmed seats. This rule is straightforward, and United makes very clear in their own contract of carriage that employees of their own or of other carriers may be denied boarding without compensation because they do not have reserved confirmed seats. On its face, it’s clear that what they did was illegal– they gave preference to their employees over people who had reserved confirmed seats, in violation of 14 CFR 250.2a.
Furthermore, even if you try and twist this into a legal application of 250.2a and say that United had the right to deny him boarding in the event of an overbooking; they did NOT have the right to kick him off the plane. Their contract of carriage highlights there is a complete difference in rights after you’ve boarded and sat on the plane, and Rule 21 goes over the specific scenarios where you could get kicked off. NONE of them apply here. He did absolutely nothing wrong and shouldn’t have been targeted. He’s going to leave with a hefty settlement after this fiasco.§ 250.2a Policy regarding denied boarding.
So the lawyer who popped up on Reddit looks to be on solid ground in saying it was an FAA violation to try to kick off a confirmed passenger in favor of crew.
Similarly, if you look at the relevant part of United’s Contract of Carriage, which indeed is Rule 21, “Refusal of Transport,” you will see a remarkably long list of situations and types of passengers, including “have or cause a malodorous condition (other than individuals qualifying as disabled), those who violate United’s policies regarding voice calls, and pregnant women in their ninth month, unless they have a recent doctor’s note (pray tell, since when are airline personnel expert in determining how far along a pregnant woman is?). And again you see nothing remotely like a “we need the seat for business reasons” or a catchall “because we feel like it”.
Astonishingly, a USA Today story, United Airlines can remove you from a flight for dozens of reasons you agree to, where the reporter was alert enough to consider United’s legal position and even mentioned the contract of carriage, spun the piece completely in United’s favor. Not only did the author apparently fail to read the relevant section, his sources gave the Big Corporate Lie that United must be right. From the article:
“Those contracts are well thought through. They are generally fair and balanced, and they reflect the market,” said Roy Goldberg, a partner at Steptoe & Johnson who practices aviation law in Washington, D.C. “As a general matter, passengers have rights, but airlines have rights, too.”
And the article like so many others, mischaracterizes the issue as overselling, falsely telling millions of readers that United was on solid ground.
Conclusion: the U.S. news media is unprofessional, lazy, inept, not very smart, and fails the public when it is most needed. What did reporters dig into? What did it feel the public had a right to know? The victim’s past! Not the law. Not United policies. Not what really happened, even though it had the head start of the passenger videos!
How can anyone trust journalists to inform us any more? Not only are they flagrantly biased, they don’t do their job—in this case, none of them? Why would anyone trust them?
For all the trouble it can cause, Americans should fall to their knees and praise the internet. We would be at the mercy of these arrogant, Constitutionally-protected hacks were there not citizen journalists doing their work and catching their mistakes.
In the end, this may be the most important revelation coming out of the story.
So choosing Dr. Dao for ejection wasn’t random after all.
A passenger has come forward to reveal that Dr. Dao originally volunteered to surrender his seat in exchange for the cash offered, but when he was told that he would not be able to get to his destination until the next day, withdrew his acceptance. Then the United staff chose him to leave anyway. He was, in effect, punished for volunteering. This wasn’t “eenie meenie miney mo”: it was “Oh, you don’t like the deal you agreed to because you assumed it was better than it is? Tough. You’re stuck with it whether you like it or not!”
It was a bait and switch, enforced by police.