Metropolitan News-Enterprise


Tuesday, May 27, 2008


Page 3


Court of Appeal Rules for Workers in Flap Over Family Leave




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 First District Court of Appeal ruled Friday.

Div. Two 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.

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 Friday 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.

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.

The case is McCarther v. Pacific Telesis Group, A115223.


Copyright 2008, Metropolitan News Company