Balcorta, we called the line "hazy."[1] In Cramer and Burnside, we said it was not "a line that lends itself to analytical precision."[2]
What we wind up with from all these cases is the need to exercise judgment, not a mechanical rule. Our three part test and words and phrases establish only a "hazy" and indeterminate line between independent state rights and state rights inextricably intertwined with the collective bargaining agreement. In this case, the sounder view is that the state law right and the collective bargaining agreement are indeed inextricably intertwined.
The Washington statute says that whatever right to leave to care for family members the employee has depends on her collective bargaining agreement. We held in Burnside that "if the right exists solely as a result of the CBA, then the claim is preempted, and our analysis ends there."[3]In this case, the right established by state law is a right to use paid leave to take care of a sick child or other designated family members:
1) If, under the terms of a collective bargaining agreement or employer policy applicable to an employee, the employee is entitled to sick leave or other paid time off,
- ↑ Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000) (quoting Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993)).
- ↑ Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001) (en banc); see Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1060 (9th Cir. 2007) (quoting Cramer, 255 F.3d at 691)).
- ↑ Burnside, 491 F.3d at 1059
