Metropolitan News-Enterprise


Friday, February 19, 2010


Page 3


State Supreme Court Rules for Employer in Flap Over Family Leave


By a MetNews Staff Writer


A company that gives workers unlimited leave for days that they are ill, pursuant to a collective bargaining agreement, does not have to allow those employees to use such leave to care for sick family members as well, the state Supreme Court ruled yesterday.

The high court overturned a ruling by Div. Two of the First District Court of Appeal, and reinstated a summary judgment in favor of Pacific Telesis Group.

The communications group was sued on behalf of a putative class made up of workers engaged in providing telephone services, Internet access, and other telecommunications services to SBC Communications customers in California.

The plaintiffs claim the company’s refusal to allow the use of unlimited medical leave to care for sick family members violates Labor Code Sec. 233, the “kin care” statute.

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 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 or more of service misses due to illness, except that no more than five consecutive days of leave will be paid. Employees who miss an excessive number of days, however, are subject to discipline.

The defendants prevailed initially 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.

The Court of Appeal reversed, saying the plaintiffs’ position was supported by “the plain and commonsense meaning of the statute’s text.”

But Justice Carlos Moreno, writing yesterday for a unanimous high court, said the Court of Appeal erred because the leave given Pacific Telesis employees is not “accrued” within the meaning of the statute.

The jurist explained:

“It is true that defendants’ employees are entitled to compensated time off for illness; however, that amount of compensated time is not banked, nor can it be calculated in six-month periods. Defendants’ sickness absence policy provides that employees may be compensated for time off due to illness for up to five consecutive days and must seek alternate forms of compensation under short- or long-term disability programs if the illness or injury lasts for more than seven days. Thus, an employee’s ‘current rate of entitlement’ can be measured only in seven-day periods (in which an employee would be entitled to up to five days of compensated time off for illness), but cannot be measured in six-month periods as section 233 requires. Accordingly, section 233 does not apply to sickness absence policies like defendants.”

The case is McCarther v. Pacific Telesis Group, 10 S.O.S. 869.


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