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.
Parting Thoughts
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.