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McCarther v. Pacific Telesis Group

February 18, 2010

KIMBERLY MCCARTHER ET AL., PLAINTIFFS AND APPELLANTS,
v.
PACIFIC TELESIS GROUP ET AL., DEFENDANTS AND RESPONDENTS.



Ct.App. 1/2 A115223 Alameda County Super. Ct. No. RG05219163 Judge: Robert B. Freedman.

The opinion of the court was delivered by: Moreno, J.

In this case we resolve whether Labor Code section 233, which permits an employee to use accrued paid sick leave to care for ill relatives, applies to paid sick leave policies that provide for an uncapped number of compensated days off. We conclude, contrary to the Court of Appeal, that Labor Code section 233 does not apply to paid sick leave policies that provide for an uncapped number of compensated days off.

Background

Plaintiffs Kimberly McCarther and Juan Huerta brought this representative action against their respective employers, SBC Services, Inc., and Pacific Bell Telephone Company, and against Pacific Telesis Group, Advanced Solutions, Inc., Southwestern Bell Video Services, Inc., Pacific Bell Information Services, and SBC Telecom, Inc. (collectively, defendants). In their second amended complaint, plaintiffs alleged three causes of action concerning defendants' failure to provide paid leave to care for employees' relatives in accordance with Labor Code*fn1 section 233.

According to the parties' stipulated statement of undisputed facts, plaintiff McCarther had been a service representative for one of defendants' companies since 1998, and plaintiff Huerta had worked for another of defendants' companies for over 25 years. Defendants are affiliated entities and have been signatories to various collective bargaining agreements, including the operative April 4, 2004, to April 4, 2009, collective bargaining agreement (the CBA) with Communication Workers of America, the labor union to which plaintiffs belong.

A. Defendants' Sickness Absence and Attendance Management Policies

Section 5.01F of the CBA requires that employees 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.*fn2 Once an employee returns to work following any period of absence, section 5.01F may again be triggered if the employee is absent for his or her own illness or injury. There is no bank of paid sick days that employees incrementally accrue over a period of time. There is no cap on the number of days employees may be absent from work under section 5.01F, nor is there a particular number of days that employees vest, earn, or accrue under the sickness absence policy. As defendants explain, "if an employee normally works a five-day schedule from Monday- Friday, is absent for an entire workweek due to an illness, returns to work the following Monday morning, and becomes ill during the day on Monday, the employee can leave work and be absent for five more continuous working days with full pay." The parties stipulated that defendants never maintained a policy or practice of paying employees under section 5.01F of the CBA for absences to care for ill family members, nor has plaintiffs' union ever asserted that section 5.01F covers absences for the illness of an employee's family member.

The CBA also contains an attendance management policy, which sets forth a schedule of progressive discipline that can be imposed when an employee is not meeting attendance standards. An employee is not meeting standards if he or she has eight or more absences in a 12-month period with no extenuating circumstances, or if an employee has more than four full days of absence and three or more "occurrences" of absences in a 12-month period with no extenuating circumstances.

The attendance policy sets forth a progressive discipline scheme. If an employee fails to meet attendance standards, the employee is first counseled that further instances of absenteeism will result in discipline. If the employee has worked for the company for between five and 20 years, the progressive discipline policy mandates the following course for each successive absence: a written warning of a one-day unpaid suspension, a one-day unpaid suspension with a written warning of a two-day unpaid suspension, a two-day unpaid suspension with a written warning of termination, and termination. Employees with fewer than five years of service do not receive a two-day suspension, and are instead terminated after a one-day suspension and warning of termination.

Absences are excluded from this attendance management policy (and exempt from discipline) if they constitute protected leave under, among other laws, workers' compensation laws or the federal Family and Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.). The CBA provides employees with six "personal" days off per year, and absences taken as personal days are also excluded from the attendance management policy. Absences for an employee's illness, while compensated pursuant to section 5.01F of the CBA, nonetheless constitute an absence potentially subject to discipline within the meaning of the attendance policy.

B. Plaintiffs' Claims

Plaintiff McCarther was absent for seven consecutive workdays in 2004 to care for her ill children. McCarther was not paid for this absence, and did not request to be paid for this absence under the sickness absence or personal day off policies. McCarther instead requested that her leave be approved as Family Medical Leave Act protected leave, which her employer denied. She thereafter filed a grievance, which was also denied. During the pendency of her challenge, her absence was not counted as an occurrence of absence, and nearly a year after taking her seven-day leave she was counseled that she was meeting attendance standards. McCarther was never disciplined in connection with any absence to care for an ill family member, and although she received one or two written warnings concerning her attendance, she was never suspended or terminated for an attendance- related reason.

Plaintiff Huerta was absent for five consecutive days to care for his ill mother. He requested that one day of his absence be paid pursuant to the personal day off policy, which was granted. He did not request that any other days of his absence be paid pursuant to the sickness absence provision of the CBA, and he was not paid for those other days of absence. Huerta's absence was considered excluded from the attendance management policy, and Huerta was ...


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