Page:Alaska Airlines v. Judy Schurke - Panel Opinion.pdf/33

Rh right, and to apply the Burnside test properly, it is critical to identify the precise right asserted. Masserant prescheduled her accrued vacation leave for December, but sought to use it early to care for her sick child. She claims the right to use accrued leave in a certain way, not the right to additional accrued leave. Notably, Alaska Airlines does not dispute that Masserant’s leave had accrued; it objects to Masserant’s insistence that she should be free to reschedule it. The district court recognized that the right at issue is the right to use accrued leave, as do the parties. Masserant describes her claim as a violation of the WFCA based on "earned time that [she] was denied to use [by Alaska Airlines]"; Alaska Airlines acknowledges that the asserted right is Masserant’s "claimed right to reschedule her December vacation days for May"; and the Department of Labor & Industries frames the question as whether the WFCA “confers an independent statutory right of flexibility that is superimposed on whatever leave is available to an employee under a collective bargaining agreement or employer policy."

The majority concludes that Masserant asserts a right that is not independent from the CBA because “the [WFCA] creates no right to any kind of paid leave, and conditions its expansion of rights upon an employee entitlement under the collective bargaining agreement.” Because Masserant does not argue that the WFCA creates a right to paid leave, or claim to be entitled to additional leave, or even that she is entitled to use her accrued leave early under the terms of the