McCarther v. Pacific Telesis Group, Inc.
Filed May 23, 2008,
First District, Div. Two
Cite as 2008 SOS 3096

Collectively Bargained Policy on “Kin Care” Absences, Covered by Labor Code

Kimberly McCarther (McCarther) was absent for seven consecutive working days to care for two of her children.

Her employer, SBC Services, Inc. (SBC), did not pay for her absences and denied her request for payment pursuant to the Family and Medical Leave Act.

SBC alleged that her absences were deemed an “occurrence,” but she was told later that she was meeting her job standards because she only had two occurrences in the past year.

Meanwhile, Juan Huerta (Huerta) was denied payment by Pacific Bell Telephone Company (Pacific) for his several days of absence from work to attend to his ill mother.

Likewise, he was not paid for his absences. He was only allowed to use a paid personal day for one of the days. His absences were considered either as an “occurrence” under the company’s “attendance management” policy or a cause to discipline him.

McCarther and Huerta (collectively, Plaintiffs) sued their respective employers and related parties on behalf of themselves and all others similarly situated.

Plaintiffs contended that their employers violated Labor Code §233 by not paying their “sickness absence”. This is pursuant to §5.01F of the parties’ collective bargaining agreement for leave taken to attend to family member illnesses.

The trial court granted summary judgment in favor of the employers and denied plaintiffs’ motion for summary adjudication by holding that the employers’ sickness absence payments were not “sick leave” under the kin care statutes.

Plaintiffs appealed.

The California Court of Appeal reversed the trial court’s decision by holding that the statutory requirement allowing workers to use sick leave for “kin care” was applicable to employers’ “sickness absence” policy effectively mandating payments pursuant to a collective bargaining agreement for leave taken to attend to family member illnesses.

The appeal court’s pronouncement was based on the following:

• §233 applied to the employers’ “sickness absence” policy pursuant to section 5.01F

  Pursuant to the policy, the employers provided accrued increments of compensated leave to an employee for use by them during an absence from the employment due to illness or injury. The plain and commonsense meaning of the statute’s text thus demonstrated that it applied.

Hence, collectively bargained "sickness absence" policies are subject to Labor Code Sec. 233.