The new Earned Sick Time Act, approved by Massachusetts voters on Nov. 4, requires private employers to provide sick leave to their employees. Though labor unions were among the leading backers of the ballot question, there is a good chance that unionized workers will be the one segment of the Massachusetts workforce not covered by the act, due to preemption.

Earned Sick Time Act

Under the new law, which is to be codified at G.L.c. 149, §148C, employers must allow employees to accrue one hour of sick time for every 30 hours worked, up to a maximum of 40 hours in a calendar year.

For employers with 11 or more employees, the sick leave must be paid at the same hourly rate the employee earns from employment at the time the employee uses the paid time. The employee must be permitted to carry over up to 40 hours of accrued leave into a subsequent year, though the employer may limit an employee’s use of sick time to 40 hours in a calendar year.

The act provides that an employee is entitled to use accrued sick leave:

(1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent or parent of a spouse;

(2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent or parent of a spouse; or

(3) to address the effects of domestic violence on the employee or the employee’s dependent child.

Paid vacation or paid time off — or PTO— will satisfy the requirements of the act if a sufficient amount is accrued and may be used for the purposes described above.

The drafters of the act made clear that the law is intended to establish minimum standards for sick time accrual and use, but that employers are free to offer benefits that exceed the requirements of the act.

Section 301 preemption

Section 301 of the Labor Management Relations Act, 29 U.S.C. §185, says that lawsuits for violations of labor agreements between employers and unions can be brought in federal court.

From that seemingly straightforward concept, the U.S. Supreme Court has developed a doctrine of preemption, under which Section 301 will preempt a state law claim if resolution of the claim requires a substantive analysis of a collective bargaining agreement. Allis-Chalmers v. Lueck, 471 U.S. 202, 220 (1985).

In practice, that means that a lawsuit filed by a union employee against his or her employer for state law claims — such as breach of contract or wrongful discharge — is likely to be dismissed because it is preempted by Section 301. See generally, “The Developing Labor Law,” 2517-22 nn.377-91 (John E. Higgins, Jr. ed., BNA 6th ed.) (collecting cases where state law claims were found to be preempted by Section 301).

Though Section 301 preemption is applied very broadly, there are some instances in which state law claims are not preempted.

According to the Supreme Court’s decision in Lingle v. Norge Div. of Magic Chef, Inc., a state law claim that can be resolved without interpreting a collective bargaining agreement will be deemed “independent” of the agreement and not preempted. 486 U.S. 399, 409-10 (1988).

In Livadas v. Bradshaw, the court extended that line of reasoning to say that a state law claim will not be preempted just by “the mere need to ‘look to’ the collective bargaining agreement for damages computation.” 512 U.S. 107, 125 (1994).

Will act be preempted?

Given that most union contracts provide some measure of paid sick time, it might seem like the preemption question is a moot point. However, there are unionized industries where paid sick time is not the norm, and some union contracts that do provide for paid sick time may not conform to all the requirements of the act.

Consequently, it’s quite possible that some unionized employee will eventually seek to enforce his or her perceived rights under the act.

Under an exception to the “well-pleaded complaint rule,” “any state law claim which is subject to complete preemption under Section 301 of the LMRA is considered a claim arising under federal law,” and therefore subject to removal to federal court. Magerer v. John Sexton & Co., 912 F.2d 525, 528 (1st Cir. 1990).

Presumably, then, any lawsuit brought under the act on behalf of a union worker would end up before the U.S. District Court for the District of Massachusetts and, perhaps, the 1st U.S. Circuit Court of Appeals. This is important because two decisions from the 1st Circuit imply that it may find the act to be preempted.

The first decision was Magerer, issued in 1990. The plaintiff, a union employee, alleged that he had been fired in retaliation for having filed claims for benefits under G.L.c. 152, the Massachusetts workers’ compensation statute. Section 75B of Chapter 152 expressly states that it is illegal for an employer to retaliate against an employee for having filed for benefits. Nevertheless, the federal District Court found the plaintiff’s retaliation claim to be preempted by Section 301 and dismissed the case. 912 F.2d at 526-27.

The plaintiff appealed to the 1st Circuit, arguing that his retaliation claim under G.L.c. 152, §75B was independent of the employer’s collective bargaining agreement and therefore should not be preempted. The 1st Circuit indicated that it might have agreed with the plaintiff, were it not for the fact that Section 75B contained the following clause: “In the event that any right set forth in this section is inconsistent with an applicable collective bargaining agreement, such agreement shall prevail.”

Consequently, the court concluded, resolution of the plaintiff’s retaliation claim would require interpretation of the collective bargaining agreement and was therefore preempted. 912 F.2d at 529-30.

The Earned Sick Time Act also contains a reference to collective bargaining agreements: “nothing in this section shall be construed to diminish or impair the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan in effect on the effective date of this section that provides for employees greater earned sick time rights than the rights established under this section.”

That language is clearly different from the Section 75B clause in Magerer, which stated that a collective bargaining agreement would prevail over the statute if their terms were “inconsistent.”

The language of the act seems to require the act to prevail if it provides rights that are greater than those offered in a collective bargaining agreement. However, that would require a court to measure a collective bargaining agreement against the act, which would not necessarily be a simple “apples to apples” comparison. A court would have to analyze how many sick time hours are accrued under the agreement, at what rate the hours are paid, the availability of any paid vacation or paid time off hours, and for what purposes the hours may be used. It would be impossible for a court to determine whether the act diminished or impaired an employer’s obligations under a collective bargaining agreement without actually analyzing the agreement.

The 1st Circuit’s 2001 decision in Adames v. Executive Airlines, Inc. makes an even more compelling case for preemption. Though Adames was decided under the Railway Labor Act, which governs labor relations in the railroad and airline industries, it applied the principles and cases established under Section 301.

The plaintiff in Adames was an airline employee, covered by a union contract, who sued the airline for compensation and benefits mandated by the labor laws of the Commonwealth of Puerto Rico, including paid sick leave. With respect to paid sick leave, the 1st Circuit found:

“The Commonwealth provides for thirteen sick days with pay per year, accrued at a rate of 1 1/12 days for each month involving at least 100 hours of work. … Under the CBA, paid sick time accrues monthly, at a rate of 2 ½ hours for each month of active service, but the arrangement may differ for probationary flight attendants. … As with vacation leave, several elements of the CBA must be interpreted to evaluate any claim, including assessment of flight versus duty hours and the method for accruing and limiting sick leave.”

Because the plaintiff’s claims for sick leave and other benefits could not be resolved independently of her employer’s collective bargaining agreement, the court found them to be preempted. 258 F.3d 7, 15-16 (1st Cir. 2001).

Again, a court could not determine whether the sick leave benefits provided under an employer’s collective bargaining agreement fulfilled the requirements of the Earned Sick Time Act without actually reading the agreement.

Conclusion

It’s impossible to predict with any certainty whether claims under the Earned Sick Time Act against unionized employers will ultimately be found to be preempted by Section 301.

Given the language of the act, however, as well as 1st Circuit precedent, a strong argument can be made that Section 301 would preempt such claims.