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Air Transport Association of America v. Washington Department of Labor & Industries

United States District Court, W.D. Washington, Tacoma

October 11, 2019

AIR TRANSPORT ASSOCIATION OF AMERICA, dba AIRLINES FOR AMERICA, Plaintiff,
v.
WASHINGTON DEPARTMENT OF LABOR & INDUSTRIES and JOEL SACKS, in his official capacity as Director of the Department of Labor & Industries, Defendant, & ASSOCIATION OF FLIGHT ATTENDANTS-COMMUNICATION WORKERS OF AMERICA, AFL-CIO, a labor organization, Intervenor.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT DKT. ## 83, 93, & 102

          Ronald B. Leighton United States District Judge

         INTRODUCTION

         THIS MATTER is before the Court on Plaintiff Airlines for America, Defendant Washington Department of Labor & Industries, and Intervenor Association of Flight Attendants- Communication Workers of America's (AFA) Cross-Motions for Summary Judgment. Dkt. ## 83, 93, & 102. This lawsuit challenges Washington's Paid Sick Leave Law (WPSLL) as applied to flight crew employees. In addition to guaranteeing accrual of paid sick leave hours, WPSLL prohibits employers from requesting medical verification of illness, disciplining employees for using their leave, and preventing employees from using leave in one-hour increments. The Law applies to all employees who are “Washington-based, ” a status that L&I determines by considering several factors on a case-by-case basis.

         Pilots and flight attendants already enjoy paid sick leave under their company-specific collective bargaining agreements, but those CBAs do not contain all the additional protections afforded by WPSLL. According to the Airlines, [1] these protections will increase the rate of flight crew absences, which will ultimately increase flight delays, cancellations, and costs. The Airlines also argue that WPSLL will conflict with other jurisdictions' sick leave laws, contributing to a patchwork of regulations that will burden the Airlines and raise consumer prices. Consequently, the Airlines' argue that WPSLL violates the U.S. Constitution's Dormant Commerce Clause. They also contend that WPSLL is preempted by the Airline Deregulation Act (ADA) and violates the Fourteenth Amendment's Due Process Clause.

         L&I and AFA argue that WPSLL does not violate the Dormant Commerce Clause because the Law's health benefits outweigh any speculative burdens on interstate commerce. Furthermore, they argue that WPSLL is not preempted by the ADA because the Law does not sufficiently impact the rate, routes, or services offered by the Airlines. Finally, L&I and AFA contend that WPSLL does not violate the Due Process Clause because it only regulates the activities of parties with significant ties to Washington.

         For the following reasons, the Court GRANTS L&I and AFA's Motions for Summary Judgment and DENIES the Airlines' Motion for Summary Judgment.

         BACKGROUND

         1. The Airlines' Flight Crew Sick Leave Policies

         For years, the Airlines have regulated flight crew employment terms pursuant to nationwide CBAs negotiated under the Railway Labor Act (RLA). Although they differ, the Airlines' CBAs for pilots and flight attendants provide for sick leave accrual, banking, and rollover that generally meet or exceed WPSLL's requirements. For example, pilots at Alaska, American, and United Airlines accrue 5 or 5.5 hours of leave for roughly every month of work. For flight attendants, Alaska and Southwest Airlines employees receive sick leave based on how many “trips for pay, ” or “TFP, ” they have flown. A TFP basically amounts to a flight of 243 miles or less. Flight attendants begin accruing one TFP of sick leave for every ten TFP flown after being hired, but they cannot use their paid sick leave until the end of a 180-day probationary period. American and United flight attendants accrue 4.5 and 4 hours of leave for roughly each month worked, respectively. The Airlines' CBAs also have provisions that allow flight crew to bank sick leave hours that carry over from year to year.

         Because of the mobile nature of their work, flight crew have unusual schedule structures that complicate the use of sick leave. Schedules are broken down into “trip pairings” comprised of a series of flights that begin and end in a flight crew member's domicile airport, which is sometimes in a different state from where the employee resides. Consequently, when an employee calls in sick for the day a trip pairing begins, they are removed from that pairing and replaced by a different crew member. This replacement is necessary to comply with federal regulations regarding the minimum number of crew members on each flight. If the sick employee later “calls in well, ” they may trade trips with another employee or pick up a trip to start working again. However, if they are unable to change their schedule, the necessary number of sick leave hours to cover the pairing are deducted from their bank.

         The Airlines retain several bargained-for methods of controlling flight crew attendance, which are the main focus of this case. One is the assignment of “points” to employees for sick calls, missed trips, late reports, and no-shows. Building up points can lead to disciplinary actions such as counseling, warnings, and dismissal. Different types of employee actions result in different point assignments. For example, Alaska can assess 3 points for a no-show, 2.5 points or less for calling in sick on short notice, and .5 points per day for calling in sick with adequate notice. Employees can reduce their amount of accumulated points through several means, such as working for an entire quarter without taking any leave.

         The Airlines also retain the right to demand that an employee provide medical verification when they take a sick day. The Airlines can exercise this right regardless of the number of days an employee has been on leave or their reason for taking leave. Some Airlines, such as Alaska, have a standing policy of not requiring verification when flight crew take an absence. However, in periods of concentrated sick leave use Airlines have the ability to reinstate verification requirements to stem increased absences.

         2. Washington's Paid Sick Leave Law

         In 2016, Washington voters passed Initiative 1433 adding paid sick leave benefits to Washington's Minimum Wage Act. This resulted in Washington's Paid Sick Leave Law and its accompanying L&I regulations. Under WPSLL, employees begin accruing one hour of paid sick leave for every 40 hours worked after a 90-day post-hire period. RCW 49.46.210(1)(a) & (d). If an employee does not use their accrued sick leave by the end of the year, employers are authorized to cap the amount of state-mandated leave that rolls over to the next year at 40 hours. RCW 49.46.210(1)(j).

         Most relevant to this case, WPSLL restricts some policies that employers use to control sick leave use. First, under WPSLL, an employer cannot adopt any policy that “counts the use of paid sick leave time as an absence that may lead to or result in discipline.” RCW 49.46.210(3). Second, an employer may not require medical verification from employees for sick leave absences of three days or less. RCW 49.46.210(1)(g). Third, an employer may not restrict employees' ability to take sick leave in small increments, such as one hour. WAC 296-128-630(4).

         These restrictions have exceptions. An employer may require that an employee provide “reasonable notice of an absence from work, ” RCW 49.46.210(1)(f), which means at least ten days' notice if the absence was foreseeable and notice “as soon as possible before the required start of [the employee's] shift” if it was not. WAC 296-128-650(1). An employer also may require medical verification for absences over three days in length or withhold pay from an employee if they believe sick leave was used for an unauthorized purpose. WAC 296-128-750; RCW 49.46.210(1)(g). There must be a “written policy or a collective bargaining agreement” outlining these procedures before they can be implemented. Id.; WAC 296-128-650(3). Finally, L&I grants variances from WPSLL's leave increment restriction if an employer can establish that “compliance with the requirements for increments of use are infeasible, and that granting a variance does not have a significant harmful effect on the health, safety, and welfare of the involved employees.” WAC 296-128-640(1). To date, L&I has approved 26 of the 38 waiver applications it has received from employers but has not received an application from any of the Airlines. Johnson Dec., Dkt. # 84 at 6.

         WPSLL applies to all “Washington-based” employees. Id. at 5. To determine if an employee is “Washington-based, ” L&I considers the following factors on a case-by-case basis: “(1) Where was the employment agreement made? (2) Does the employee live in Washington? (3) Does the employer have its base of operations in Washington? (4) Does the employee have his or her base of operations in Washington? (5) Does the employer maintain a work site in Washington? (6) If the employee leaves Washington as part of the employee's work, where does the trip begin and end? (7) Does the employee receive work assignments from a location in Washington? (8) Is the employee's work supervised by individuals operating from the employer's location in Washington? (9) How much of the work is performed in Washington? [and] (10) How long is the contract to do work in Washington?” L&I Explanatory Statement, Dkt. # 103, Ex. 16, at 2-3.

         Although L&I considers all these factors, it also states that “some factors may be more relevant than others” in specific situations. Id. at 3. For flight crew, who do not spend very much time working in any one place, L&I has indicated that location of work is given less weight. Johnson Dep., Dkt. # 103, Ex. 4, at 283-86. Being domiciled at a Washington airport may be enough to make an employee Washington-based if other factors are also satisfied, as is likely the case for Alaska flight crew because of that company's ties to the state. Johnson Dec. at 5. However, merely being domiciled at a Washington airport without more would not be enough to make WPSLL applicable. Id.

         DISCUSSION

         1. Summary Judgment Standard

         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.

         The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323-24. There is no requirement that the moving party negate elements of the non-movant's case. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). Once the moving party has met its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson, 477 U.S. at 248.

         2. Dormant ...


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