Employer Required To Bargain When State Passes Paid Family And Medical Leave Law

This article appears in the July 2020 issue of our monthly newsletter, Public Safety Labor News.

In 2017, the Washington Legislature enacted the Paid Family Medical Leave Act. The Act provides compensation for qualifying medical or family events, such as the birth of a child. The Act funded the program in part through premiums of 4/10 of one percent of an employee’s salary and provided that an employer may deduct a premium from the wages of employees.

Whatcom County and the Whatcom County Deputy Sheriff’s Guild were parties to a collective bargaining agreement effective December 5, 2017, through December 31, 2019. The agreement did not address the premiums called for by the Act. When the County announced that it “intended to deduct the employee portion” from employees’ wages beginning January 4, 2019, the Guild requested bargaining.

A meeting did not produce an agreement, and the County implemented the salary deductions on January 4, 2019, taking the position that the status quo was the “default split as outlined in the statute” and offering only to negotiate the effects, and not the decision, to make the deductions. The Guild responded by filing an unfair labor practice complaint against the County.

Washington’s Public Employment Relations Commission sided with the Guild. The Commission reasoned that “to prove a unilateral change, the Union must establish the status quo. The term ‘status quo’ refers to the existing collective bargaining relationship between the parties. The status quo is established by the parties’ collective bargaining agreement or by established practice. Here, before the Employer began deducting partial premiums from their wages, employees received their full pay as set out in the collective bargaining agreement. Therefore, the wages the parties had negotiated in the 2017-19 collective bargaining agreement were the status quo.

“By enacting the Act, the Legislature did not create a new status quo. A change to the law does not alter the status quo between the parties absent an unambiguous legislative directive. Here, the Legislature provided employers, whether public or private, represented or not, several paths to take when dealing with the matter of required premiums. The statute permits employers to pay the entirety of the premiums, or to share them with its employees by percentages, up to a maximum of ‘45 percent of the full amount of the premium’ charged for medical leave and the ‘full amount of the premium’ for family leave. Nowhere in the statute does the Legislature suggest that public employers with represented employees could treat the statutory maximum deduction of 45 percent of the premium as what the employer terms a ‘statutory default split’ and deduct that amount from employees’ wages without bargaining with the representatives of its employees.

“Negotiable wages broadly encompass every form of compensation for labor performed, including alternative forms of compensation, such as insurance, and agreements on how compensation is delivered. Employee contributions to family and medical leave premiums are similar to employee contributions to health and other insurance premiums. Employees, through their unions, must agree to divert wages to these other benefits. The deduction of premiums reduces employees’ wages and is therefore a mandatory subject of bargaining. As such, the Employer was not permitted to change employees’ wages without first notifying the Union and providing an opportunity to bargain and either negotiating to an agreement or pursuing the issue through mediation and interest arbitration.”

The Commission ordered the County to make employees whole by reimbursing them for any premiums deducted from their wages.

Whatcom County Deputy Sheriff’s Guild, 2020 WL 2615650 (Wash. PERC 2020).

Also in the July 2020 issue:

  • A Small Dent In the ‘Firefighter’s Rule’
  • Chief Deputy Loses Job After Heated Meeting With Union President
  • City Required To Follow Its Own Fitness Policy
  • One-Year Membership Period Does Not Violate Janus
  • Arbitrator Reinstates Officer Accused Of
  • Paying Prostitutes
  • ‘Sexting’ Officer Has No Due Process Rights
  • Cleveland Recruits Lose Due Process Claim By Not Requesting Hearing
  • Federal Labor Law Does Not Apply To Cities, Counties
  • Jogging Injury While Attending Union Conference May Be Compensable Workers’ Comp Injury
  • Court Upholds Arbitrator’s Opinion Forbidding Civilianization Without Fire Union’s Consent
  • Sergeants Not Severed From Rank-And-File
  • Q & A

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