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!