ALERT: The Scope of California Kin Care Leave Rights Narrowed - At Least in Some Instances
Virtually every provision of the California Labor Code is being scrutinized by employees and their counsel these days, and Section 233, which permits employees to use a portion of their accrued sick leave to care for ill relatives, is no exception.
In McCarther et al. v. Pacific Telesis Group (Pacific Telesis Group), the California Supreme Court examined whether Section 233 applies where an employer’s paid sick leave policy provides for an uncapped number of compensated days off, but does not provide for accrual of any specific sick leave. On February 18, 2010, the Court unanimously interpreted Section 233 to apply only to sick leave policies through which employers provide "accrued increments of compensated leave."
Procedural Background and Facts
In this case, two plaintiffs sued on behalf of themselves and other similarly situated employees against Pacific Telesis Group ("PTG") and other related entities, alleging that the sick leave policy provided for in a collective bargaining agreement ("CBA") constituted sick leave within the meaning of California Labor Code Section 233. As a result, they claimed they were entitled to take paid sick leave under the policy to care for injured or ill family members.
The CBA provided that employees were to be compensated for "any day in which they miss work due to their own illness or injury for up to five consecutive days of absence in any seven-day period." Following an employee’s return to work after an absence for his or her own illness or injury, the provision could again be triggered. Although there was no cap on the number of days that employees could be absent from work under this provision, its use was limited by a separate progressive disciplinary policy for excessive absences during any 12-month period. Further, under the CBA, the paid sick days were to be used for the employee’s own illness or injury, not to care for ill family members.
Both plaintiffs used short periods of leave to care for ill family members, and neither requested compensation for their absences under the employer’s sick leave policy. One plaintiff requested that her leave be approved under the federal Family Medical Leave Act, which request was denied. The other plaintiff requested that one day of his absence be paid pursuant to a separate policy permitting payment for personal days, and this request was granted. Neither plaintiff was disciplined for his or her absence.
The trial court granted PTG’s motion for summary judgment, concluding that the sickness absence policy in the CBA did not constitute sick leave within the meaning of Section 233. Plaintiffs appealed, and the appellate court reversed, concluding that the sickness absence policy contained in the CBA did in fact fall within Section 233. The appellate court also held that California Labor Code Section 234, which prevents employers from disciplining employees for taking leave under Section 233, did not preclude PTG from disciplining employees for taking leave to care for their ill relatives under the discipline scheme provided for in the CBA. PTG then appealed to the California Supreme Court.
The California Supreme Court’s Ruling and Rationale
The California Supreme Court examined whether PTG’s sick leave policy, providing for an uncapped number of paid days off for illness as long as each instance of absence continues for no longer than five consecutive days, was subject to the restrictions and rights set forth in Section 233. The Court held that it was not, based upon the plain language of Section 233.
California Labor Code Section 233 provides that:
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.
Often referred to as the "kin care" statute, Section 233 defines "sick leave" as "accrued increments of compensated leave." The Court determined that this statutory language limits Section 233’s applicability "to employers that provide a measurable, banked amount of sick leave." Further, it found that Section 233 does not apply to policies where it would be impossible to ascertain the amount of time an employee could use for kin care.
Under PTG’s policy, the Court reasoned that it would be impossible to establish the amount of sick leave to which employees are entitled in a six-month period since the policy contained no such limitation. Therefore, Section 233 did not apply to PTG’s sick leave policy. The Court also held that Section 233 did not apply to PTG’s sick leave policy because it did not provide for any accrual of "earned but not yet due or paid" sick days.
The Court further explained that the Legislature’s intent that Section 233 would not apply to a sick leave policy such as PTG’s is supported by the addition of California Labor Code Section 234, which prohibits employers from "using an absence control policy that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Section 233." The Court reasoned that if Section 233 applied to the PTG policy, Section 234 would then prohibit PTG from using its attendance policy to limit the amount of permissible kin care. This result would clearly run contrary to the intent of Section 233 because this section was not designed to provide employees with unlimited leave rights.
Given the somewhat unusual sick leave policy at issue in the Pacific Telesis Group case, the holding is likely to have a relatively limited impact. Moreover, it seems unlikely that many employers would find it helpful to modify their sick leave policy to provide for uncapped sick leave benefits without accrual rights simply to escape any obligation to provide paid kin care under Section 233. Nevertheless, the outcome does send a positive signal that the California Supreme Court is carefully analyzing the provisions of the California Labor Code and, at least in some instances, it is interpreting those provisions in favor of employers. We can only hope that this trend of employer-favorable rulings, such as Schachter v. Citigroup, Inc. (forfeiture of restricted stock shares does not violate the California Labor Code), Amalgamated Transit Union v. Superior Court (only plaintiffs who have suffered actual injury may sue under the PAGA and the UCL), and Costco Wholesale Corp. v. Superior Court (factual information contained in a lawyer’s opinion letter is protected by the attorney-client privilege, and the California Evidence Code prohibits disclosure of information that is claimed to be privileged in order to rule on the assertion of privilege), continues in 2010.
For further information, please feel free to call your Jones Day contact or:
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Robert A. Naeve
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Deborah C. Saxe
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Los Angeles, CA 90071-2300
Christopher T. Scanlan
555 California Street, 26th Floor
San Francisco, CA 94104
This alert is intended to provide a brief synopsis of recent developments in the law and should not be construed as legal advice.