McCarther v. Pacific Telesis: Unlimited Sick Leave Policies Are Not Subject to Kin Care Law

The California Supreme Court has held that the “kin care” provision of California Labor Code Section 233 does not apply to unlimited sick leave policies. In McCarther v. Pacific Telesis Group, ____ Cal. Rptr. 3d ____, 48 Cal. 4th 104, 2010 WL 547321 (Cal. 2010), the California Supreme Court held that the state’s “kin care” law only applies to employer policies that provide for accrued sick leave benefits because only those policies enable measurement of the kin care entitlement.

BACKGROUND

Plaintiffs Kimberly McCarther and Juan Huerta worked for SBC Services Inc., and Pacific Bell Telephone Company, respectively. Both were members of the Communication Workers of America, which had entered into a collective bargaining agreement (“CBA”) with both employers. The CBA’s sick leave policy allowed an employee to take up to five consecutive days of paid time off for the employee’s own illness or injury in any seven-day period. Once the employee returned to work – even if for only one day – the entitlement would renew. Employees could renew this entitlement an unlimited number of times, as the total number of paid sick days available under this policy was uncapped.

Unlike some employer sick leave policies, the CBA did not provide for the accrual of unused sick days over time that an employee can “bank” and use all at once. The CBA sick leave policy only allowed for payment to employees due to their own illness; it did not pay for absences taken to care for sick family members, though the CBA did provide for six paid personal days that employees could take for any reason. The CBA also included an attendance management policy with a schedule of progressive discipline for employees who failed to meet attendance expectations – paid sick absences were subject to the attendance policy, but personal days were not.

In 2004, McCarther was absent for seven days to care for her sick children. She was not paid for her absence because she herself was not sick. She did not request to be paid under either the sick leave or personal leave policy, and she was never disciplined for her absences.

Huerta was absent for five days to care for his sick mother. He was not paid for his absence because he was not sick himself, but he requested that one day of his absence be paid as a personal day. He was never disciplined for his absence.

McCarther and Huerta filed a class action lawsuit against the employers, claiming that the employers violated California’s “kin care” statute by failing to pay them for their absences. The trial court granted summary judgment in favor of the employers, finding that the state’s “kin care” law did not apply to the CBA sick leave policy. But the Court of Appeals reversed that decision, finding that the CBA’s sick leave policy was subject to the “kin care” statute. The employers appealed. McCarther v. Pacific Telesis Group, ____ Cal. Rptr. 3d ____, 48 Cal. 4th 104, 2010 WL 547321, (Cal. 2010).

The “Kin Care” Statute Does not Apply to Policies Providing for Uncapped Paid Sick Days

In 1999, California passed Labor Code Section 233, requiring employers who provide sick leave to permit employees to use one-half of their annual sick leave entitlement to attend to the illness of a child, parent, spouse, or domestic partner of the employee. In other words, if an employer provided 10 paid sick days per year, the employee could use five of those paid sick days to care for their family member. Section 233 defines “sick leave” as “accrued increments of compensated leave,” requiring an employer to pay for employee absences used to care for a family member 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.” Section 233, subd.’s (a) and (b)(4).

In McCarther, the employers argued that Section 233 did not apply to the CBA sickness absence policy because its unlimited sick day policy did not provide any measurable or banked number of paid sick days. Because there was no particular number of days an employee could earn or accrue under the policy, the company had no way of determining how many paid sick days an employee might be entitled to use in a six-month period for purposes of covering the kin care obligation. 2010 WL 547321, *4.

California Supreme Court agreed with employers in finding that the state’s kin care law did not apply to the CBA’s sickness absence policy:

“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.”  Id. at *5.

Attendance Control re: Kin Care Leave Still an Open Question

The employers in McCarther had argued that if the kin care statute applied to them, then they could not apply their attendance management policies to employees using their legal kin care entitlement, because employees could claim as kin care “far more compensated time off” than they would even be entitled to claim for their own illnesses. 2010 WL 547321, *5. In reversing the trial court and holding that Section 233 did apply to the employers, the Court of Appeals held that employers could apply attendance control policies to the use of paid kin care leave so long as the company regulates kin care and regular sick leave the same way. Id. at *3.

Because the Supreme Court reversed the Court of Appeal by holding that Section 233 did not apply to an uncapped sick leave policy, it did not address this question of how employers’ attendance control policies might apply to kin care leave. As a result, it remains an open question as to whether an employer can apply the same attendance conditions to kin care leave as it does for regular sick leave.

CONCLUSION

In California, employers should understand that if they offer a sick leave policy where employees have a defined number of paid sick leave days, and those days accrue over time, the kin care statute does apply. On the contrary, if the employer sick absence policy does not allow for the accrual of sick days, and there is no cap on sick leave, an employee is not entitled to the “kin care” protections.

When employers are determining the kind of policy to implement, especially if they prefer not to provide “kin care” leave, they should consult with an experienced employment attorney. Similarly, when an employer receives a request for paid absences due to the kin care law and the employer is unsure whether its policy applies, a consult with an attorney who specializes in California employment law is strongly advised.

Connect on Linkedin®

Jeremy J. Gray

Also See:

Hosanna-Tabor Evangelical Church v. EEOC: Supreme Court Confirms Ministerial Exception to Employment

US Airways, Inc. v. McCutchen: Third Circuit Limits ERISA Fiduciary Relief; Allows Equitable Reformation

Bates v. Dura Automotive Systems, Inc: An Employee on Legal Prescription Medication May be Fired For Safety Reasons as Long as the Employee is not “Disabled”

Reid v. Google: Stray Remarks May Be Considered Evidence of Discrimination

City of Ontario v. Quon: Limited Privacy Rights for Employer-Issued Equipment