Metropolitan News-Enterprise


Thursday, August 21, 2008


Page 1


Supreme Court to Review Pro-Worker Ruling on Family Leave




The California Supreme Court yesterday agreed to decide whether a company that gives workers unlimited leave for days that they are ill, pursuant to a collective bargaining agreement, must allow those employees to use such leave to care for sick family members as well.

The justices, at their weekly conference in San Francisco, voted unanimously to review the May 23 decision of the First District Court of Appeal, Div. Two, in McCarther v. Pacific Telesis Group, 163 Cal.App.4th 176.

The Court of Appeal overturned a summary judgment in favor of Pacific Telesis Group, which is made up of several companies affiliated with SBC Communications, Inc., and reinstated a putative class action charging the defendants with violating Labor Code Sec. 233.

The putative class covers a large number of workers engaged in providing telephone services, Internet access, and other telecommunications services to SBC customers in California.

The statute provides in part:

“Any employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee. All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner.”

Two employees of Pacific Telesis companies brought suit in 2005, one because the company would not pay him for days that he spent caring for his ill mother and the other because it did not pay her for seven consecutive days that she missed to care for her children.

The plaintiffs, and other class members, are represented by the Communications Workers of America and covered by a collective bargaining agreement containing a “sickness absence” provision requiring the company to pay for all days that an employee with a year of more of services misses due to illness, except that no more than five consecutive days of leave will be paid. Employees who miss excessive days, however, are subject to discipline.

Summary Judgment

The defendants prevailed two years ago when Alameda Superior Court Judge Robert Freedman granted their motion for summary judgment, ruling that the statute only applies to traditional sick leave policies in which the employee accrues a specific number of sick days over time.

But Justice James Lambden, writing for the Court of Appeal, said the sickness-absence provision is subject to Sec. 233.

“We base our conclusion on the plain and commonsense meaning of the statute’s text,” the jurist wrote.

Lambden said the word “accrued,” as used in the statute, does not necessarily mean periodically accumulated over time, as the trial judge concluded.

There are multiple dictionary definitions of the word, he explained, and “independent research of our state’s case law indicates ‘accrued,’ whether as an adjective and a verb, is used flexibly, but nonetheless time and again in connection to something which has been ‘earned,’ or to which some right or claim is made.”

Since leave is a right of the employees under the collective bargaining agreement, he elaborated, it is “accrued” for purposes of the statute.

‘Potential for Abuse’

Lambden rejected the defendants’ arguments that subjecting them to Sec. 233 would force them to provide “up to 130 days of paid absences whenever their family members have any kind of a minor illness,” as well as “insulate employees from discipline for absenteeism,” “create the potential for serious abuse of attendance policies,” “be enormously expensive and disruptive for employers such as [defendants] that already provide generous time-off benefits,” “penalize the employees who diligently show up for work,” “result in a windfall benefit” for those “who already have been repeatedly absent,” and lock them into a collective bargaining agreement that “no business of any kind—not even the most generous business—could survive.”

The employers could still enforce their policies against excessive absenteeism in accordance with the collective bargaining agreement, the justice said.

In other conference action yesterday, the justices:

•Left standing the June 4 Third District ruling in California Correctional Peace Officers’ Association v. Schwarzenegger, 163 Cal.App.4th 802, upholding the governor’s authority to declare a state of emergency based on prison overcrowding and ship inmates to other states. The high court also denied a request to depublish the opinion.

Denied review of the First District, Div. Five’s May 30 decision in U.S. Western Fulan Dafa Association v. Chinese Chamber of Commerce,163 Cal.App.4th 590. The ruling allows the San Francisco Chinese Chamber of Commerce to exclude members of the religious group Falun Gong from participation its Chinese New Year parade and other events.

The panel agreed with San Francisco Superior Court Judge Ronald Quidichay that, although attendance at the events is open to the general public, the chamber has a First Amendment right to bar those whose political views are contrary to its own from participating as a group.

•Left standing a May ruling by this district’s Div. Seven that Gary K. Wolf, who wrote the novel “Who Censored Roger Rabbit?” and sold rights to his characters to Walt Disney Productions , was not entitled to a percentage of the gross receipts earned at each level of the Disney corporate structure.

The appellate panel, contrary to the ruling of Los Angeles Superior Court Judge David Minning, concluded that under the plain meaning of the actual language used by the parties and the contractual provisions delineating the royalty payments, Wolf was only entitled to a portion of the gross receipts of the Disney parent company, regardless of whether those revenues are generated by a third party or one of its subsidiaries.

The case is Wolf v. Walt Disney Pictures and Television, 162 Cal.App.4th 1107.


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