bargaining agreement and employer practice establishes that she is not entitled to use her December leave in May, no "analysis" is needed, so they avoid preemption under the second prong of the three part test. Whatever right she has, they argue, arises solely out of the Washington statute
That argument would fit a statute saying “regardless of whether an employee is entitled to paid leave under a collective bargaining agreement or employer policy, the employee is nevertheless entitled to up to ten days of leave per year to care for sick family members,” because it would establish a right independent of the collective bargaining agreement. But the Washington statute says the opposite, that the employee entitlement is conditioned upon her entitlement to paid time off under the collective bargaining agreement. She has to show an entitlement to leave under the collective bargaining agreement to use her leave to care for her sick child, according to the statute. Thus whatever right Masserant has cannot, by the terms of the statute, arise “solely” out of the statute.
The argument for Masserant seems to be that no "analysis" of the collective bargaining agreement is needed because it is plain and undisputed that she is not entitled to paid leave under it. That argument is mistaken for two reasons. First, it ignores the purpose of the distinction between "analysis" and mere "looking at." The purpose is to distinguish independent state rights from rights intertwined with the collective bargaining agreement. The purpose is not to distinguish hard from easy analysis. "Analysis," in the context of determining whether the state right is independent of the collective bargaining agreement, refers to whether the state claim cannot logically be determined independently of the provisions of the collective bargaining agreement. If the
