Page:Alaska Airlines v. Judy Schurke - Panel Opinion.pdf/34

 CBA, the court's reasoning misses the mark. Masserant asserts the right to use her accrued vacation leave as family medical leave, a right that might arise from the statutory protections within the WFCA, but one that certainly is not provided by the CBA.

The majority reasons that because the WFCA refers to leave provided under the terms of a CBA, “whatever right Masserant has cannot, by the terms of the statute, arise ‘solely’ out of the statute.” But under Burnside’s first step, the question is whether the asserted right “exists independently of the CBA,” not whether it arises solely out of statute. Burnside, 491 F.3d at 1059 ("If the right exists solely as a result of the CBA, then the claim is preempted, and our analysis ends there."). A claim is not preempted just because it is based on a state statute that refers to rights included in a CBA. For example, in Livadas, the Supreme Court concluded that LMRA § 301 did not preempt a claim challenging an employer’s failure to promptly pay wages at the time of severance. 512 U.S. at 125. The court recognized that the employee’s right to be paid arose from the CBA, but because the employee contested the failure to pay severance wages promptly, and the right to prompt payment was afforded only by the state statute, the claim was not preempted. Id. (holding the right at issue arose out of state law because “[b]eyond the simple need to refer to bargainedfor wage rates in computing the penalty, the collectivebargaining agreement [wa]s irrelevant to the dispute”).

Our recent decision in Kobold supports Masserant’s position. See 832 F.3d 1024. In one of the appeals consolidated in Kobold, the court addressed an Oregon statute that permitted employers to deduct a portion of employees’ wages as health insurance premiums if authorized to do so by