Negotiations And Washington State Bill 5725 2023-2024

Master Executive Council (MEC)

• Management solicited AFA’s support for WA SB 5725 in the context of contract negotiations, and the MEC ultimately agreed after careful consideration.
• Our Negotiating Committee subsequently secured an agreement for near-term implementation of onboard rest breaks and a tentative agreement on Paid Sick Leave (PSL) provisions.
• The failure of WA SB 5725 to advance out of committee may have some effect on negotiations.

Overview

Alaska Airlines management initiated the legislative effort that became WA State Bill (SB) 5725 2023-2024 (“Clarifying the application of the industrial welfare act and minimum wage act to airline cabin crews”). Management also approached AFA to solicit our support in the broader context of contract negotiations. After much negotiation and deliberation, AFA ultimately agreed to support WA SB 5725. The underlying issues are complex, the stakes are high – and being in negotiations, AFA is in a complicated balancing act.

In a public hearing on the bill last Friday March 24 AFA offered testimony in support of passage. On Tuesday March 28, the Washington State House Labor and Workplace Standards Committee declined to advance the bill out of committee. This action effectively killed SB 5725 for this legislative session, which will likely have consequences for negotiations going forward. 

Some Flight Attendants subsequently brought forward concerns about WA SB 5725 and questioned AFA’s support of the bill.  It was not a cavalier decision, and the reasons are articulated below.

WA SB 5725 2023-2024 References

• Overview >
• Full text >
• Senate Bill Report (i.e., Senate summary) >
• House Bill Analysis (i.e., House summary) >
• House Labor and Workplace Standards Committee Public Hearing on March 24, 2023 at 10:30 am PT re: SB 5725 (full) >
  • Testimony of Alaska management >
  • Testimony of Jason Rittereisier for HKM Employment Attorneys LLP (a law firm representing WA-based Alaska FAs in a pending class certification putative lawsuit involving meal & rest breaks) >
  • Testimony of AFA Alaska MECP Jeff Peterson and AFA Senior Staff Attorney Kimberley Chaput >

Background

Alaska Airlines management approached AFA in the context of contract negotiations, seeking our support for legislative amendments that would exempt Washington-based Flight Attendants from (1) meal & rest breaks, (2) overtime, (3) minimum wage, and (4) pay interval requirements under Washington State law. Management also wanted those exemptions to (5) take effect immediately and to (6) apply retroactively. Because we were aware of a pending punitive class action lawsuit being pursued by Seattle-based Flight Attendants who are alleging violations of meal & rest break provisions, our deliberations proceeded cautiously with that in mind.

To be clear, AFA categorically rejected any consideration to exempt minimum wage. However, after many discussions between AFA leadership and our attorneys, it became clear to us that we needed to harmonize Flight Attendants’ schedules, working conditions, pay structure and pay timing with the existing legislative provisions in Washington State. In some cases, significant work is needed to bring our collective bargaining agreement in line with state law. Further, AFA refused to support full retroactive immunity, and instead agreed to endorse limited retroactive liability on meal/rest requirements of the law because individual Flight Attendants had active lawsuits pending.

In exchange, after years of litigation with no end in sight, we secured implementation of paid sick leave under state law to be applied systemwide. Over the years, we’ve heard from so many of you of the importance of securing paid sick leave under state law. As a result, we pushed for the Company to incorporate paid sick leave, and this was a big win for Flight Attendants. 

Contractual Challenges and/or Conflicts with Washington State Law

The following represent problems for AFA and management that must be resolved either through bargaining and/or through legislation:

• Meal & rest breaks: Reconciling flight schedules and required safety duties with break times at prescribed time periods.
• Minimum wage: Washington State does not allow averaging of pay rates across a work week to determine compliance with minimum wage requirements. 
  • To further complicate matters, Alaska Flight Attendants are currently paid based on standard and non-standard TFP (“trips for pay”), which are measures of distance rather than of time. TFPs are two degrees removed from the traditional clock hour worked (i.e., duty-hour), which is referenced in the law; and one degree removed from the industry standard “block hour,” which is generally based on when an aircraft is in motion between block-out and block-in. (Definitions of block-out and block-in vary between carriers.) 
  • AFA is very aware of Flight Attendants’ expectations to be clearly compensated for all hours worked whether through boarding pay and/or duty pay. However, we need to be extremely careful about avoiding unintended consequences. 
    Example: If we were theoretically to completely convert our pay structure from TFP to duty hours (no Flight Attendant contract has this), the transcon and Hawaii trips with one leg per duty period that are currently considered desirable and efficient under TFP would become relatively devalued at only seven hours of duty time or less as compared to other trips with longer duty days.
• Overtime: Flight Attendants consistently work schedules based on monthly and not weekly or daily schedules, which is why airline crew are already exempted from federal overtime requirements. We have existing premium pay provisions of 1.5x our contractual rates of pay or better to compensate for certain hours or days involuntarily worked in excess of scheduled work. It would be more advantageous to keep those bargained-for provisions and continue to improve them.
• Pay intervals: We have several contractual pay provisions requiring a full month lookback that we would need to reconcile with existing state law requiring pay the week following the work performed. 

What AFA Secured for Our Support

In consideration of AFA’s support for WA SB 5725:

• Management agreed to negotiate the best of all paid sick leave (PSL) provisions from every state in which there are Flight Attendant domiciles with PSL laws – currently Washington and Oregon (there is a PSL carve-out for collective bargaining agreements in California and no such law in Alaska) – and to apply those to all Flight Attendants regardless of where they are domiciled upon ratification of a new agreement. We reached a tentative agreement (TA) on those PSL provisions late last Thursday during contract negotiations. The parties also made a mutual strategic decision to not communicate about certain details of the session until this week to give our respective lawyers adequate time to advise and assist us in tying up loose ends.
  (See the “Supplemental Negotiations Update” publishing shortly for more details about negotiations.) 
• A standalone letter of agreement to be implemented next week that provides for onboard breaks. For the Flight Attendant Onboard Breaks LOA click here >
• For details regarding the scope of our agreement pursuant to the WA SB 5725 2023-2024 Amendment Support LOA click here >

Meal & Rest Break Retroactivity with Limited Liability

Candidly, the portion of SB 5725 that provided retroactivity but limited liability on meal & rest break requirements was not something we proposed and would generally not support. However, for management, it was a “must have” that we would not have been able to come to an agreement without. With that in mind, we ensured that had the legislation been passed into law that Flight Attendants who took legal action on meal & rest break violations prior to the effective date would still be able to recover compensatory damages as named plaintiffs. 

The direct concern about retroactivity has now been resolved due to failure of the bill. However, the MEC knows some Flight Attendants are particularly upset about our support. Know that this decision was admittedly very difficult to make with no easy choice given the potential shortcomings of any decision. Yet, we believed this was the optimal path forward with the greatest benefit to Flight Attendants. Our support for this legislation ensured, for the first time, that Alaska management would implement Paid Sick Leave and apply it system-wide. This was a very important improvement and protects the most vulnerable among us.

What Happens Now That WA SB 5725 Failed?

The parties have now tentatively agreed to Paid Sick Leave provisions.  This agreement is a big win for Flight Attendants and resolves major portions of Sections 15 – Leaves of Absence, 16 – Sick Leave and On the Job Injury, and 32 – Attendance Policy. The agreed-to PSL provisions would require variances from WA Labor & Industries (L&I) for the minimum sick leave draw and potentially for the unit of accrual depending on whatever pay structure (TFP vs. block-hours vs. duty hours) is ultimately agreed to in bargaining, so we’ll work through those details. Otherwise, AFA is planning to continue negotiations on the same aggressive bargaining schedule of meeting twice per month. 

Management informed us that they are assessing the situation and determining next steps.

Whatever happens, we will keep you informed.