Management vs. State and Local Laws – Part 3

Master Executive Council (MEC), Grievance Committee, Benefits Committee

This is the third in a series reporting on management’s opposition to various state and local laws, the latest developments to complex state law litigations related to these laws that are playing out in Washington and California, and what Flight Attendants can do about it.

Read Part 2 here >

Read Part 1 here >

In This Edition

• WA Long Term Care (Cares Fund)
• CA 2021 COVID-19 Supplemental Paid Sick Leave

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WA Long Term Care (Cares Fund)

Management will unilaterally decline to initiate payroll deductions for flight crew in January 2022

The Washington Cares Fund is the nation’s first state-administered long-term care insurance program. Benefits will be funded by a 0.58% employee-paid payroll tax beginning January 1, 2022. However, Alaska Airlines management has unilaterally taken the position that the WA Cares Fund does not apply to flight crew and therefore will not initiate payroll deductions this coming January. In an email titled “Important Information About Washington’s Long-Term Care Act” (July 8, 2021), management advised all WA-domiciled Alaska Airlines Flight Attendants that flight crew may still consider pursuing a permanent one-time opt-out of the Program and all associated taxes and benefits by obtaining private long-term care insurance prior to the deadline of November 1, 2021. Currently, there is no opt-out option for any employee who becomes domiciled in (i.e., employed in) Washington after the applicable deadlines.

If management will not deduct flight crew contributions, then why bother opting out?

Flight Attendants may eventually change jobs within the Company (i.e., transfer to another position that is not classified as flight crew) or work for other employers within Washington. Additionally, the Company’s position regarding flight crew is currently untested from a legal perspective. It is entirely possible that the courts may eventually require Alaska Airlines to withhold WA Cares Fund payroll contributions on behalf of flight crew.

Grossly unfair to non-resident employees

Although all WA-domiciled flight crew would otherwise theoretically be required to contribute to the fund (except for management’s unilateral position regarding flight crew and certain state and local laws), only Washington residents may utilize Care Fund benefits. This is grossly unfair to non-resident flight crew (i.e., out of state commuters). Consequently, AFA Alaska agrees with and supports ALPA Alaska in filing legal objections with Washington State regarding concerns that the WA Cares Fund violates the Dormant Commerce Clause, which is inferred from Article I of the US Constitution, and the Privileges and Immunities Clause, which is derived from Article IV, Section 2 of the US Constitution. Resolution under this path could take a very long time, so this is another reason that non-resident WA-domiciled flight crew might consider opting out if possible.

Challenges with opting out

Unfortunately, it is extremely challenging to opt out unless you started applying for private insurance many, many months ago—especially if you are younger. AFA is unaware of any private insurers who are currently offering new long-term care policies. Additionally, there is a significant administrative backlog of applications with all known private insurers, so it is very concerning—and unknown—whether all pending policies will be executed prior to the November 1^st deadline.

Will I be required to directly contribute to the WA Cares Fund or pay back contributions not made on my behalf?

Quite simply, it is unclear but doubtful. Again, AFA Alaska agrees with and supports ALPA Alaska filing legal objections with Washington State regarding concerns that the WA Cares Fund raises due process problems insofar as the law does not specify who bears consequences for an employer’s failure to remit employee premiums or what those consequences would be. However, there is no mechanism for employees to make direct contributions to the WA Care Fund, and there is no provision in the law to recoup contributions not withheld and made by the employer.

Interestingly, Alaska Airlines management personnel from the People Team (i.e., Human Resources) have advised individual Flight Attendants who have directly inquired with them that the Company would “likely” be required to pay back the contributions owed on behalf of flight crew if Washington State came back and said that flight crew are required to pay such contributions. This is presumably under a scenario in which the State of Washington prevailed in the courts pursuant to this almost-inevitable dispute. However, Alaska Airlines management has not responded to the Association’s inquiry to confirm such guidance prior to publication of this update.

Estimated (theoretical) contributions

$25k gross annual earnings = ~$12/month | $50k gross annual earnings = ~$24/month | $75k gross annual earnings = ~$36/month | $100k gross annual earnings = ~$48/month

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CA 2021 COVID-19 Supplemental Paid Sick Leave

Up to 80 paid hours for certain COVID-19 related absences from a separate employer-paid sick bank

One of the more notable temporary COVID-19 laws is California’s 2021 COVID-19 Supplemental Paid Sick Leave. The law was effective as of March 29, 2021, was retroactive to January 1, 2021, and ends soon on September 30, 2021.  It states that California employees will be paid up to 80 hours by the employer rather than through the employee’s own sick leave bank for COVID-19 related quarantines, vaccination appointments and vaccine symptoms. Click here for FAQs. Thus far, management has denied all requests from Flight Attendants to comply with the law, e.g., to pay out of the separate COVID-19 sick bank.  

Filing a claim

Any CA-domiciled Flight Attendant who has used Sick Leave for COVID-19 related absences between January 1^st and September 30^th should file a claim or a report of a labor law violation with the Labor Commissioner’s Office, which is the state agency charged with enforcement. Please file a claim as soon as possible, but our understanding is that the state accepts such claims for up to three years. Flight Attendants also always have the option to hire their own attorney at their own expense if so desired.

AFA Alaska representatives are here to help

Although AFA cannot represent any FAs regarding such claims, we would very much appreciate you keeping us posted on any developments. Outside counsel has already responded to some claims with very official-looking but in our opinion not entirely on point legalese. AFA Alaska representatives are more than willing to help by supplying basic information and tips, and we would cooperate with any requests from claim investigators. Do not let management’s legal tactics put you off from pressing forward with your rightful claim!

Management vs. State and Local Laws – Part 2

Master Executive Council (MEC), Grievance Committee, Benefits Committee

This is the second in a series reporting on management’s opposition to various state and local laws, the latest developments to complex state law litigations related to these laws that are playing out in Washington and California, and what Flight Attendants can do about it.

Read Part 1 here >

In This Edition

• Definition of Sick Family/Sick Child
• Applicable State Laws
• Filing a Claim with the Appropriate Agency

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Most Liberal of the Flight Attendant Domicile State Laws Definition of “Sick Family/Sick Child”

The Roberts Decision and LOA 5 Sick Family/Sick Child

AFA arbitrated Grievance No. 36-99-02-49-03 “Family Leave Benefits” in 2005, which resulted in a favorable ruling for AFA by now-deceased Arbitrator Thomas Roberts. This award, which is usually referenced as “The Roberts Decision” by AFA and management, was at least in part subsequently incorporated into the current contract via Letter of Agreement 5 “Sick Family/Sick Child”:

[W]henever the collective-bargaining agreement refers to a sick child, it is understood that this is a placeholder for “family member.” With the Association’s agreement, the Company will apply the most liberal of the laws of the states in which Flight Attendants are domiciled in determining the appropriate definition of “family member.” When this definition is determined, including any subsequent amendments pursuant to changes in the law or in the interpretation of the law, the Company will publish the definition and distribute it to the Flight Attendants.

Through arbitration and bargaining, the Company is required to apply the most liberal of the Flight Attendant domicile state laws definition of “family member” for whom a Flight Attendant may utilize sick leave to care for that individual, under what circumstances and whether Flight Attendants will receive points under the Attendance Policy for such absences.

Updated list of qualified family members for Sick Family/Sick Child (as of August 30, 2021)

“Family member” includes: • Spouse • Registered domestic partner • Child (biological, step, adopted, foster, legal ward, or registered domestic partner’s child) of any age • Parent (biological, adoptive, step, foster, parent-in-law, or registered domestic partner’s parent) • Legal guardian of the F/A, spouse, or registered domestic partner as a minor • Individual with whom the F/A has or had an in loco parentis relationship – persons in loco parentis are those with day-to-day responsibilities to care for or financially support a child, or who had such responsibility for the employee when the employee was a child • Grandparent • Grandchild • Sibling

Points for Sick Family/Sick Child (in dispute)

Generally, no points apply for time off to care for the above individuals unless the Flight Attendant does not have enough sick leave to cover the absence. See Bulletin #2021-0059 for more information about the Company’s application in these circumstances. Please note this application remains in dispute via ongoing litigation.

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Applicable State Laws

Summary

✅ = Honored | ⚠ = Partially honored and/or in dispute | 🚫 = Denied

State laws that AFA believes should apply to flight crew include but are not limited to:

• Washington
  • WA Family Care Act (WFCA) – 🚫
  • WA Paid Sick Leave (WPSL) – 🚫
  • WA Paid Family Leave (WPFL) – 🚫
  • WA Long Term Care (Cares Fund) – 🚫
• Oregon
  • OR Family Leave Act (OFLA) – 🚫
  • OR Paid Family and Medical Leave Insurance (PFMLI) – N/A
• California
  • CA State Disability Insurance (CASDI) – ✅
  • CA Family Rights Act (CFRA) – 🚫
  • CA Family School Partnership Act – 🚫
• All
  • Wage statement laws: AK, WA, OR – ✅; CA = ⚠
  • Supplemental/temporary COVID-19 leave laws – 🚫

Washington

WA Family Care Act (WFCA)

• Reference:  RCW 49.12
• Rule(s) of Interest to FAs:  Use of accrued vacation pay to care for qualified family members under certain conditions.
• Status:  State of WA & AFA won lawsuit in 9^th Circuit Court of Appeals; however, the Company continues to appeal at state level.
• AS Compliance: No
• Contact Information:  Washington State Department of Labor and Industries | Mailing Address: PO Box 44000 Olympia, WA  98504-4000 | Phone:  360-902-5800 | Website:  www.lni.wa.gov –> For Workers –> File a Workplace Complaint

WA Paid Sick Leave (WPSL)

• Reference:  Initiative 1433
• Rule(s) of Interest to FAs: (1) Employees can use sick leave for preventative care for themselves and/or applicable family members. (2) Discipline and infractions that may lead to discipline (including Attendance Points) cannot be assessed for use of paid SL. (3) Employees can use paid SL on the 90th calendar day of employment (i.e., during FA probationary period).
• Status:  A4A is appealing summary judgment motion in favor of State of WA & AFA.  The State of WA won in the 9th Circuit Court of Appeals; however, the Company continues to appeal.
• AS Compliance: No
• Contact Information: Washington State Department of Labor and Industries | Mailing Address: PO Box 44000 Olympia, WA  98504-4000 | Phone:  360-902-5800 | Website:  www.lni.wa.gov –> For Workers –> File a Workplace Complaint

WA Paid Family Leave (WPFL)

• Reference: Builds on FMLA & RCW 50A
• Rule(s) of Interest to FAs: WPFL is a statewide insurance program that ensures paid family leave for various situations. WPFL usually covers 12 weeks of leave, or up to 18 weeks in certain circumstances, and workers receive between $100 and $1,000 per week depending on their income.
• Status:  No known disputes currently. – Premiums were to be deducted starting January 1, 2019, and leaves were to be allowed beginning January 1, 2020. 
• AS Compliance: No
• Contact Information:  Employment Security Department | Phone:  1-833-717-2273 | Email:  paidleave@esd.wa.gov | Website:paidleave.wa.gov

WA Long Term Care (Cares Fund)

• Reference:  RCW 50B.04
• Rule(s) of Interest to FAs:  The WA Cares Fund was created to reduce pressure on the Medicaid system. Once vested, you will be eligible to access a maximum lifetime benefit of $36,500 (adjusted for inflation) to pay for expenses associated with needing assistance with activities of daily living (ADLs). Unlike private insurance that generally requires you to be unable to do two ADLs, the WA Cares Fund requires that individuals need assistance with three ADLs to qualify. Examples of ADLs: Dressing, bathing, cognitive impairment, and other basic functions of your daily routine. Benefits are not portable or payable if you reside outside of Washington state at the time the benefit is needed.
• Status:  No known disputes currently. – Paid for by a 0.58% tax on employee wages starting January 1, 2022, with benefits beginning in January 2025.
• AS Compliance:  No – The Company does not intend to collect premiums.
• Contact Information:  Washington State Department of Social and Health Services | Email:  wacaresfund@dshs.wa.gov | Website: http://www.wacaresfund.wa.gov/

Oregon

OR Family Leave Act (OFLA)

• Reference:  https://www.oregonlegislature.gov/bills_laws/ors/ors659a.html
• Rule(s) of Interest to FAs: OFLA provides up to a total of 12 weeks protected family leave per year, which runs concurrent with FMLA. An employee must be allowed to use any existing accrued paid leave, including sick leave, vacation leave, or any paid leave offered in lieu of vacation leave. To be eligible, you must have worked an average of 25 hours per week for 180 days.
• Status:  No known disputes currently
• AS Compliance:  No
• Contact Information:  Bureau of Labor & Industries |Mailing Address: 800 NE Oregon St., Suite 1045 Portland, OR 97232 | Phone:  971-673-0761 | Email:  help@boli.state.or.us | Website:  https://www.oregon.gov/boli/workers/pages/oregon-family-leave.aspx | To file complaint:  https://www.oregon.gov/boli/workers/Pages/complaint.aspx

OR Paid Family and Medical Leave Insurance (OPFMLI)

• Reference:  HB 2005​
• Rule(s) of Interest to FAs: OPFMLI will provide 12 weeks of paid time off for various circumstances, with weekly benefits capped at $1215. The employee must have earned at least $1,000 in wages during the previous year. This leave will run concurrent with OFLA. 
• Status: State pushing start date to January 2023 or later
• AS Compliance:  N/A – Begins in 2023 or later, but AS will likely not follow the law.
• Contact Information:  Oregon Employment Department | Mailing Address:  875 Union St. NE Salem, OR 97311 | Phone: 503-947-1394 | Email:  paidfamilyandmedicalleave@oregon.gov | Website: https://www.oregon.gov/employ/PFMLI/Pages/default.aspx

California

CA State Disability Insurance (CASDI)

• Reference:  California Unemployment Insurance Code §2601 et seq.
• Rule(s) of Interest to FAs:  Partial wage replacement for non-work disability: illness, injury and/or pregnancy. SDI contributions are paid by California workers covered by the SDI program.
• Status:  No known disputes currently
• AS Compliance:  Yes – Since 1987
• Contact Information:  Employment Development Department | Phone numbers:  English: 1-800-480-3287; and Spanish: 1-866-658-8846 | Website:  https://askedd.edd.ca.gov or https://edd.ca.gov/Disability/SDI_Online.htm

CA Family Rights Act (CFRA)

• Reference:
• Rule(s) of Interest to FAs: CFRA includes a generous pregnancy disability leave (PDL) and other family care and medical leave provisions under The Fair Employment and Housing Act. Requires 1250 hours in the prior 12 months. CFRA is like FMLA, but CFRA also covers domestic partner and domestic partner’s children. An employer can require the employee to use vacation pay, but the employee cannot use sick leave if not for the employee’s own medical condition. Health benefits must be continued during the leave if the employer is part of a group plan.
• Status:  No lawsuits known to AFA at this time.
• AS Compliance:  No
• Contact Information:  Department of Fair Employment and Housing | Mailing Address: 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758 | Phone: (800) 884-1684 | Email:  contact.center@dfeh.ca.gov | Website:  http://www.dfeh.ca.gov/

CA Family School Partnership Act

• Reference:  CA Labor Code 230.8
• Rule(s) of Interest to FAs: Employees may take 8 hours/month up to 40 hours/year to attend any day care or K-12 school function that is sponsored, supervised, or approved by the school, school board, or childcare facility. Time loss may be paid out of vacation pay, compensatory time off (CTO), personal time off or unpaid. Attendance Points may not be assessed for using this leave. Applies to parents, grandparents, or guardians with at least seven days’ notice.
• Status:  No known disputes currently. – AFA encourages eligible and willing California FAs to request time off under this law and then to file a complaint with the state when denied.
• AS Compliance:  No
• Contact Information:  CA Dept of Industrial Relations | Phone Numbers: 1-844-619-8786 or SFO 415-703-5300, LAX 213-620-6330 or SAN 619-220-5451 | Email:  DLSE2@Dir.CA.gov | Website:  https://www.dfeh.ca.gov –> Complaints

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Filing a Claim with the Appropriate Agency

AFA cannot file claims on behalf of Flight Attendants, but we’re here to assist

AFA does not have the ‘standing’ to file complaints with state or local agencies on behalf of affected employees–even if those employees are AFA Alaska members. However, we are very much interested in guiding and supporting members to file such complaints. Flight Attendants should reach out to their local AFA Benefits Committee representatives to discuss the law in question, and we will refer you to the applicable state agency so you can file a claim. Flight Attendants should copy an AFA rep into any email correspondence with the state.

Helpful tips

When filing a claim, the Flight Attendant will need to provide evidence of the Company’s refusal to comply with the law. Flight Attendants are encouraged to keep a documentation trail and to file timely as there may be filing timelines. We encourage Flight Attendants to tell any state agency representative that Alaska Airlines is knowingly disregarding the law.  AFA is hopeful that the states will act against Alaska Airlines management directly and compel the Company to comply with applicable state laws.   

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In the Next Edition (Publishing Monday)

• WA Long Term Care (Cares Fund)
• CA 2021 COVID-19 Supplemental Paid Sick Leave