United States District Court, W.D. Washington, Tacoma
AIR TRANSPORT ASSOCIATION OF AMERICA, dba AIRLINES FOR AMERICA, Plaintiff,
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
B. Leighton United States District Judge
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.
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,  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.
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.
following reasons, the Court GRANTS L&I and AFA's
Motions for Summary Judgment and DENIES the Airlines'
Motion for Summary Judgment.
The Airlines' Flight Crew Sick Leave Policies
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.
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.
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.
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.
Washington's Paid Sick Leave Law
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).
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).
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.
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.
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.
Summary Judgment Standard
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.
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.