IN THE SUPREME COURT OF CALIFORNIA
KIMBERLY McCARTHER et al.,
Plaintiffs and Appellants,
S164692
v.
Ct.App. 1/2 A115223
PACIFIC TELESIS GROUP et al.,
Alameda County
Defendants and Respondents. )
Super. Ct. No. RG05219163
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
1
paid leave to care for employees‟ relatives in accordance with Labor Code1 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.2 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
1
All further statutory references are to the Labor Code unless otherwise
indicated.
2
If an employee is disabled for eight or more days, the employee may
receive short-term disability benefits; if an employee is disabled for more than a
year, the employee may receive benefits pursuant to defendants‟ long-term
disability plan.
2
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
3
(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 not disciplined
4
for his absence. Huerta was never disciplined for any attendance-related reason
during his employment.
C. Proceedings Below
Before class discovery occurred and class certification issues were litigated,
defendants filed a motion for summary judgment, and plaintiffs filed a motion for
summary adjudication seeking a determination of whether defendants‟ sickness
absence policy constituted sick leave within the meaning of section 233. The
parties stipulated, and the court agreed, that this question was purely legal and
appropriate for resolution at the summary judgment stage.
Relying on paragraphs 15 and 16 of the parties‟ stipulated statement of
undisputed facts,3 the plain meaning of section 233, and the legislative history of
section 233, the trial court concluded that defendants‟ sickness absence policy did
not constitute sick leave pursuant to section 233, and it granted defendants‟ motion
for summary judgment.
Plaintiffs appealed and the Court of Appeal reversed the trial court‟s grant of
summary judgment for defendants. The Court of Appeal held that defendants‟
sickness absence policy constituted sick leave within the meaning of section 233;
and further concluded that section 234, which provides that employers may not
discipline employees for taking leave under section 233, did not preclude
defendants from disciplining employees for taking leave pursuant to section 233 to
care for ill relatives in the same manner defendants disciplined employees for
3
Paragraph 15 of the parties‟ statement provides that “employees do not
earn, vest or accrue any particular number of paid sick days in a year under
Section 5.01F.” Paragraph 16 states, “Under [defendants‟] system of sickness
absence payments, employees do not have a „bank‟ of paid sick days that they
accrue in increments over a period of time.”
5
taking leave for their own illnesses or injuries. We granted defendants‟ petition
for review.
Discussion
Section 233, commonly referred to as the “kin care” statute, provides, in
pertinent part, that “[a]ny 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.” (§ 233, subd. (a).) The statute defines “sick leave” as “accrued
increments of compensated leave.” (§ 233, subd. (b)(4).) We examine here
whether defendants‟ sickness absence policy, which provides for an uncapped
number of paid days off for illness so long as each instance of absence continues
for no longer than five consecutive days, constitutes sick leave within the meaning
of section 233.
Our primary task when faced with a question of statutory construction is to
determine the intent of the Legislature, and we begin by looking to the statutory
language. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th
1142, 1147.) We must give “the language its usual, ordinary import and accord[]
significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose. A construction making some words surplusage is to be
avoided. The words of the statute must be construed in context, keeping in mind
the statutory purpose, and statutes or statutory sections relating to the same subject
must be harmonized, both internally and with each other, to the extent possible.”
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,
1386-1387.) If the statutory language is susceptible of more than one reasonable
interpretation, we must look to additional canons of statutory construction to
6
determine the Legislature‟s purpose. (Olson v. Automobile Club of Southern
California, supra, 42 Cal.4th at p. 1147.) “Both the legislative history of the
statute and the wider historical circumstances of its enactment may be considered
in ascertaining the legislative intent.” (Dyna-Med, Inc. v. Fair Employment &
Housing Com., supra, 43 Cal.3d at p. 1387.)
The Court of Appeal concluded that “[s]ection 233 plainly applies to the
„sickness absence‟ policy” at issue here. We disagree. The statute requires
employers that provide sick leave to permit employees to use “accrued and
available sick leave” 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
care for an ill family member.4 (§ 233, subd. (a)). The statute, therefore, does not
apply to any and all forms of compensated time off for illness, but only to “sick
leave” as defined by the statute and only in the amount specified. The facts that
section 233 defines sick leave as “accrued increments of compensated leave,” and
that the statute limits the amount of sick leave that can be used to care for an ill
family member to “an amount not less than the sick leave that would be accrued
during six months,” indicates that the reach of the statute is limited to employers
that provide a measurable, banked amount of sick leave.
The requirement in section 233 that employers that provide sick leave permit
employees to use at least the “amount . . . that would be accrued during six
4
We note that most California employers are not required to provide sick
leave to employees (Chin, et al., Cal. Practice Guide: Employment Litigation (The
Rutter Group 2008) ¶ 12:2345, p. 12-183; Cal. Chamber of Commerce, 2 Cal.
Labor Law Dig. (2008), ch. 21, p. 548); accordingly, the statute applies only to
employers that elect to do so. Employers in San Francisco City and County are
required to provide sick leave to their employees pursuant to a local ordinance.
(S.F. Admin. Code, ch. 12W; Cal. Chamber of Commerce, 2 Cal. Labor Law Dig.,
supra, ch. 21, p. 548.)
7
months” for kin care cannot sensibly be applied to the sickness absence policy at
issue here, because it is impossible to determine the amount of compensated time
off for illness to which an employee might be entitled in a six-month period.
Defendants‟ sickness absence policy does not provide a bank of sick leave hours
or days to which the employee is entitled in a six-month or 12-month period, but
rather provides that an ill employee will be compensated for up to five consecutive
days for each instance of illness. But once the employee returns to work, he or she
is again entitled to compensation for another five-day period of illness. The only
limitation is imposed by defendants‟ attendance management policy, which
provides a schedule of progressive discipline if an employee is absent eight days
or more in a year absent extenuating circumstances. It is impossible to determine,
therefore, the amount of compensated time for sick leave to which an employee
might be entitled within six months and, thus, impossible to determine the amount
of time an employee could use for kin care under section 233.
Plaintiffs contend, relying on the Court of Appeal‟s conclusion, that section
233 applies to sickness absence policies like the one at issue here, even if “one
cannot in advance calculate with mathematical certainty the amount of sick leave
that employees would actually use in a six-month period.” Plaintiffs propose “at
least two ways of calculating” kin care leave under an unlimited sickness absence
policy like defendants‟. First, plaintiffs suggest — and the Court of Appeal found
persuasive — that because defendants‟ sickness absence policy applies to
employees after one year of employment, “employees earn the use of five-day
increments of compensated leave in the event of illness or injury . . . . This is their
„current rate of entitlement‟ „during‟ any six months of any calendar year
thereafter.”
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
8
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‟.
Our conclusion that the Legislature did not intend section 233 to apply to a
sickness absence policy like defendants‟ is supported by the Legislature‟s addition
to the Labor Code of section 234, which prohibits employers from using an
absence control policy to “count[] sick leave taken pursuant to Section 233 as an
absence that may lead to or result in discipline, discharge, demotion, or suspension
. . . .” As noted above, the only limitation on the amount of compensated time off
an ill employee may claim under defendants‟ sickness absence policy is
defendants‟ attendance management policy, which provides a schedule of
progressive discipline if an employee is absent eight days or more in a year.
Without this limitation, an ill employee could claim an unlimited number of
compensated sick days, provided the employee returned to work for at least part of
a day every week.
If section 233 required defendants to permit an employee to use a portion of
this compensated time for kin care, section 234, by its terms, would prohibit
defendants from using its attendance management policy to limit the amount of
kin care that an employee could claim. Thus, rather than being entitled to use for
kin care half of the amount of compensated time the employee could use as sick
time, sections 233 and 234 together would permit an employee to claim as kin care
9
far more compensated time off than the employee would be entitled to claim if
personally ill. Such a result would be contrary to the plain intent of section 233,
which requires only those employers who provide sick leave in accrued
increments to permit employees to use half of that annually accrued amount for
kin care.
In an effort to avoid this obviously problematic conclusion, the Court of
Appeal reasoned, and plaintiffs suggest in the alternative, that an employee‟s kin
care leave entitlement could be based on the amount of sick leave that the
employee actually utilizes in one year. The Court of Appeal acknowledged the
flaw with this reasoning, explaining that “one cannot in advance calculate with
mathematical certainty the amount of sick leave that employees would actually use
in a six month period because of the uncertainty of their illness or injury.
However, section 233 does not require any such certainty.” Not so.
Section 233 expressly sets forth a minimum amount of kin care leave that
covered employers must provide to employees — “an amount not less than the
sick leave that would be accrued during six months at the employee‟s then current
rate of entitlement.” (§ 233, subd. (a).) The Legislature endeavored to provide
employers with guidelines to ascertain, with precision, an employee‟s kin care
leave entitlement. An interpretation of the statute that renders impossible an
accurate calculation of an employee‟s kin care leave entitlement is illogical and
contrary to the Legislature‟s clear intent. Plaintiffs suggest that an employer‟s
ability to ascertain the amount of kin care leave to which its employees are entitled
“is not necessary to . . . find that the plan falls within the statutory definition.”
This reasoning is flawed. The plain language of the statute requires that the
amount of accrued and available kin care leave “in any calendar year” be
ascertainable in relation to the amount of sick leave that is accrued in any six-
month period. (§ 233, subd. (a).) Plaintiffs‟ argument — that there are multiple
10
ways to calculate an employee‟s kin care leave entitlement under a sickness
absence policy like defendants‟ — is self-defeating. Because the Legislature
intended to put employers and employees on notice of the minimum amount of kin
care leave to which an employee is entitled, an interpretation of section 233 that
permits different calculations based upon the same sickness absence policy cannot
be correct.
In addition to requiring that the amount of kin care leave be ascertainable,
the statute further limits the type of sick leave plans to which it applies, explaining
that sick leave means “accrued increments of compensated leave,” and employees
may only use a measurable portion of “accrued and available” sick leave for kin
care. (§ 233, subds. (b)(4), (a).) It is in these two portions of the statute that the
definition of “accrued” becomes critical.
Defendants argue that “by far the most common definition of „accrued‟ is „to
accumulate over time,‟ or words to that effect.” Our research yields a similar
conclusion.5 Plaintiffs disagree with defendants‟ proffered definition — that
accrued means “to accumulate over time” — contending that a temporal element is
not essential to a plain and commonsense understanding of the phrase. Once the
temporal element of the definition is excised, both parties agree that “accrued”
5
(See American Heritage Dict. (4th ed. 2000) p. 12 [defining “accrue” as
“[t]o accumulate over time”]; Black‟s Law Dict. (8th ed. 2005) p. 22 [defining
“accrue” as “[t]o accumulate periodically”]; Merriam-Webster‟s Collegiate Dict.
(11th ed. 2004) p. 9 [defining “accrue” as “to accumulate or be added
periodically”]; 1 Oxford English Dict. (2d ed. 1989) p. 90 [defining “accrued” as
“[a]ccumulated by growth”]; Random House Webster‟s Unabridged Dict. (2d ed.
2001) p. 13 [defining “accrue” as “to happen or result as a natural growth,
addition, etc.”]; Webster‟s 3d New Internat. Dict. (2002) p. 13 [defining “accrue”
as “to be periodically accumulated in the process of time whether as an increase or
a decrease”]; World Book Dict. (1991) p. 15 [defining “accrue” as “to grow or
arise as the product of money invested.”].)
11
means, in essence, “accumulated.” Indeed, plaintiffs contend that the definition of
“accrued” when used in the context of compensated leave “is most closely akin to
that indicated in Black‟s Law Dictionary, something which is „earned but not yet‟
due or paid.”
Applying this definition of “accrued” here, we conclude that defendants‟
sickness absence policy is not governed by section 233. The parties stipulated that
“employees do not earn, vest or accrue any particular number of paid sick days in
a year under Section 5.01F.” “Under [defendants‟] system of sickness absence
payments, employees do not have a „bank‟ of paid sick days that they accrue in
increments over a period of time.” In other words, defendants‟ policy is not an
accumulation policy. Under defendants‟ policy, there are simply no “earned but
not yet due or paid” sick days.
Plaintiffs strain to define the terms of section 233 to encompass defendants‟
policy, arguing that the definition of the term “accrued” changes based upon how
it is used in different portions of the statute. We see no reason to reach this
unusual conclusion. “Accrued” means “accumulated” each time it is used in the
statute. “Accrued” first appears in section 233 in the statute‟s opening sentence,
explaining that employers must allow employees to use “accrued and available
sick leave” to care for an ill relative. (§ 233, subd. (a).) Plaintiffs argue that the
Court of Appeal correctly suggested that the term “accrued” in this portion of the
statute means to “come into existence as [an] enforceable claim[].” By so defining
the term, plaintiffs argue that defendants‟ policy — which provides employees
with a vested right to use compensated sick leave after a one-year period of
employment is completed — is governed by section 233.
The appeal of according the term “accrued” this definition is not lost on the
court. Indeed, in some legal contexts, the term “accrued” means to “come into
existence as an enforceable claim or right; to arise.” (Black‟s Law Dict., supra, at
12
p. 22; see also Random House Webster‟s Unabridged Dict., supra, at p. 13
[defining “accrue” as “to become a present and enforceable right or demand”];
American Heritage Dict., supra, at p. 12 [same]; Webster‟s 3d New Internat. Dict.,
supra, at p. 13 [same].) Black‟s Law Dictionary explains, “ „The term “accrue” in
the context of a cause of action means to arrive, to commence, to come into
existence, or to become a present enforceable demand or right.‟ ” (Ibid., citing
Schwing, Cal. Affirmative Defenses § 25:3, at 17-18 (2d ed. 1996), italics added.)
Although the term “accrue” can be used to indicate that a cause of action has come
into existence, section 233 has nothing to do with causes of action. According the
term “accrued” another of its ordinary definitions — “accumulated” — makes
considerably more sense in the context of section 233.6
Further, plaintiffs‟ proposed definition of “accrued” as a vested or present
right is improper because it conflates the term “accrued” with the term “available,”
both of which are used in section 233. “Available” is defined as “present and
ready for use.” (American Heritage Dict., supra, at p. 123; see also 1 Oxford
English Dict., supra, at p. 812 [“available” defined as “capable of being made use
of, at one‟s disposal, within one‟s reach”]; Webster‟s 3d New Internat. Dict.,
supra, at p. 150 [“available” defined as “capable of use for the accomplishment of
a purpose”].) Because the statute defines the type of sick leave that may be used
for kin care as both “accrued and available” leave, it is clear that the Legislature
6
Brian Garner‟s A Dictionary of Modern Legal Usage (2d ed. 1995),
explains that “[a]t least two critics have recommended that this word [„accrue‟] be
restricted to monetary contexts, quite unaware of its most common meaning in
legal contexts. Interest accrues, we may be certain, but so do causes of
action . . . .” (Id. at p. 16.) We do not suggest that the term‟s definition with
respect to causes of action is in any way altered; instead, in this limited context of
sick leave, we suggest that the term is better defined in connection with
measurable or ascertainable amounts.
13
intended the terms to have distinct meanings. Defining “accrued” as a vested or
present right thwarts that intent, rendering the term “available” redundant. As we
have stated, “[a] construction making some words surplusage is to be avoided.”
(Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p.
1387.) Accordingly, we cannot agree with the suggestion that “accrued” as used
in section 233 means a present, vested right, or — put another way — available.
The final use of “accrued” appears in section 233‟s definition of sick leave,
defined as “accrued increments of compensated leave.” (§ 233, subd. (b)(4).) The
Court of Appeal suggested that the terms “accrued” and “increments” in this
phrase are nearly synonymous. We cannot agree; if the terms were to be read
identically, or nearly so, the word “increments” would be unnecessary, an
interpretation we do not believe the Legislature intended. (Dyna-Med, Inc. v. Fair
Employment & Housing Com., supra, 43 Cal.3d at p. 1387.) Plaintiffs again argue
that “accrued” means to “come into existence as [an] enforceable claim[],” when
used in the phrase “accrued increments.” We reject this argument for the same
reason mentioned above — although the term “accrued” has a particular meaning
in the context of a cause of action, there is nothing in section 233 to suggest that
the term “accrued” takes on that meaning here. Instead, by according the term
“accrued” a commonsense meaning of “accumulated,” the conclusion that section
233 applies only to accrual-based sick leave policies, not uncapped sickness
absence policies, is plain.
To avoid this conclusion, plaintiffs urge this court not to focus “on the debate
over the meaning of „accrue,‟ ” but ask instead that we “analyze the „intent‟ of
section 233.” By focusing on the language of section 233, we do both. Section
233 applies to employers who provide sick leave, defined by the statute as
“accrued increments of compensated leave.” The fact that the statute includes a
definition of “sick leave” suggests that the Legislature understood the term is
14
susceptible of multiple meanings, and endeavored to clarify precisely which types
of sick leave policies are covered by the statute. Some policies, by implication,
are not within the statute‟s reach. Had the Legislature intended that every type of
sickness absence or sick leave policy be governed by section 233, it could have
stated so expressly, or could have declined to provide a limiting definition of the
phrase “sick leave” in the statute, arguably broadening the statute‟s reach.
Although the plain language of the statute is clear, an examination of section
233‟s legislative history confirms that the statute was not intended to broadly
apply to all types of sick leave policies. Instead, the statute applies only to those
policies in which employers provide “accrued increments of compensated leave.”
(§ 233, subd. (b)(4).) The Legislature understood that this was a limiting
definition; indeed, in describing the bill‟s purpose, the Legislative Counsel
explained that “[t]his bill would require an employer who provides sick leave, as
defined, for employees to permit an employee to use . . . accrued sick leave” to
care for ill relatives. (Legis. Counsel‟s Dig., Assem. Bill No. 109 (1999-2000
Reg. Sess.), italics added.) The legislative history is replete with references to
limiting the types of sick leave to which the statute is aimed; the phrase “sick
leave, as defined” is oft repeated in analyses of the bill. (See, e.g., Legis.
Counsel‟s Dig., Assem. Bill No. 109 (1999-2000 Reg. Sess.) as amended June 21,
1999; Assem. Com. on Appropriations, analysis of Assem. Bill No. 109 (1999-
2000 Reg. Sess.) for hearing Apr. 28, 1999, p. 4; Assem. Com. on Labor and
Employment, analysis of Assem. Bill No. 109 (1999-2000 Reg. Sess.) for hearing
Apr. 7, 1999, p. 1 [bill “[d]efines „sick leave‟ to mean accrued increments of
compensated leave”].)
Assembly Bill No. 109‟s history confirms that the definition of sick leave
codified in section 233 was intentionally limited. Prior to the passage of
Assembly Bill No. 109 in 1999, Assembly Member Knox introduced a similar bill
15
in the 1997-1998 Regular Session, Assembly Bill No. 480, which failed to pass
out of the Senate. As introduced, Assembly Bill No. 480 defined “sick leave” as
“payment by an employer of the normal compensation of an employee, out of the
general assets of the employer, on account of periods of time during which the
employee is physically or mentally unable to perform his or her duties or is
otherwise absent for medical reasons.” (Assem. Bill No. 480 (1997-1998 Reg.
Sess.), as introduced Feb. 24, 1997.) The bill was amended four times before it
failed to pass, and the third amendment altered the original definition of “sick
leave” to the language currently in section 233. (Assem. Bill No. 480 (1997-1998
Reg. Sess.) as amended Sept. 5, 1997.) If the definition of “sick leave” contained
in Assembly Bill No. 480 had not changed to its current definition, defendants‟
sickness absence policy likely would have been covered by section 233.
While we conclude that the Legislature intended to limit the types of sick
leave policies to which the statute applies, we conclude that it also intended, as
plaintiffs suggest, to protect employees. Interpreting the statute to exclude
policies like defendants‟ does not run afoul of the legislative intent. Employers
are not required to provide sick leave. Many employers elect to do so, and many
do so in the form of an accrual-based system. Employers may choose to refuse
employees the right to use uncapped sick leave to care for relatives, although
employers are certainly not precluded from doing so. Indeed, defendants offer
compensated personal days off, which may be taken to care for ill relatives — a
policy of which plaintiff Huerta availed himself to receive one day of compensated
leave to care for his ill mother. There are employers, like defendants, that elect to
provide an uncapped compensated sick leave policy. We conclude that section
233 does not apply to those types of policies.
16
Conclusion
We reverse the judgment of the Court of Appeal.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
O‟ROURKE, J.*
_____________________________
*
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion McCarther v. Pacific Telesis Group
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 163 Cal.App.4th176
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S164692Date Filed: February 18, 2010
__________________________________________________________________________________
Court:
SuperiorCounty: Alameda
Judge: Robert B. Freedman
__________________________________________________________________________________
Attorneys for Appellant:
Weinberg, Roger & Rosenfeld and David A. Rosenfeld for Plaintiffs and Appellants.__________________________________________________________________________________
Attorneys for Respondent:
Paul, Hastings, Janofsky & Walker, J. Al Latham, Jr., Thomas E. Geidt, Laura N. Monfredini and Paul W.Cane, Jr., for Defendants and Respondents.
Erika C. Frank for California Chamber of Commerce as Amicus Curiae on behalf of Defendants and
Respondents.
Seyfarth Shaw, Stacy D. Shartin, John A. Van Hook and Simon L. Yang for California Employment Law
Council and Employers Group as Amici Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
David A. RosenfeldWeinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501-1091
(510) 337-1001
Joseph Al Latham, Jr.
Paul, Hastings, Janofsky & Walker
515 South Flower Street, 25th Floor
Los Angeles, CA 90071-2228
(213) 683-6000
Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: (1) Does Labor Code section 233, which mandates that employees be allowed to use a portion of "accrued and available sick leave" to care for sick family members, apply to employer plans in which employees do not periodically accrue a certain number of paid sick days but are paid for qualifying absences due to illness?
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 02/18/2010 | 48 Cal. 4th 104, 225 P.3d 538, 105 Cal. Rptr. 3d 404 | S164692 | Review - Civil Appeal | submitted/opinion due |
| 1 | McCarther, Kimberly (Plaintiff and Appellant) Represented by David A. Rosenfeld Weinberg Roger & Rosenfeld 1001 Marina Village Parkway, Suite 200 Alameda, CA |
| 2 | Huerta, Juan (Plaintiff and Appellant) Represented by David A. Rosenfeld Weinberg Roger & Rosenfeld 1001 Marina Village Parkway, Suite 200 Alameda, CA |
| 3 | Pacific Telesis Group (Defendant and Respondent) Represented by Thomas E Geidt Paul Hastings et al., LLP 55 Second Street, 24th Floor San Francisco, CA |
| 4 | Pacific Telesis Group (Defendant and Respondent) Represented by Joseph Al Latham Paul Hastings et al., LLP 515 S. Flower Street, 25th Floor Los Angeles, CA |
| 5 | Advanced Solutions, Inc. (Defendant and Respondent) Represented by Joseph Al Latham Paul Hastings et al., LLP 515 S. Flower Street, 25th Floor Los Angeles, CA |
| 6 | Pacific Bell Information Services (Defendant and Respondent) Represented by Joseph Al Latham Paul Hastings et al., LLP 515 S. Flower Street, 25th Floor Los Angeles, CA |
| 7 | Pacific Bell Telephone Company (Defendant and Respondent) Represented by Joseph Al Latham Paul Hastings et al., LLP 515 S. Flower Street, 25th Floor Los Angeles, CA |
| 8 | SBC Services, Inc. (Defendant and Respondent) Represented by Joseph Al Latham Paul Hastings et al., LLP 515 S. Flower Street, 25th Floor Los Angeles, CA |
| 9 | SBC Telecom, Inc. (Defendant and Respondent) Represented by Joseph Al Latham Paul Hastings et al., LLP 515 S. Flower Street, 25th Floor Los Angeles, CA |
| 10 | Southwestern Bell Video Services, Inc. (Defendant and Respondent) Represented by Joseph Al Latham Paul Hastings et al., LLP 515 S. Flower Street, 25th Floor Los Angeles, CA |
| 11 | California Chamber of Commerce (Amicus curiae for respondent) Represented by Erika Cuneo Frank California Chamber of Commerce 1215 "K" Street, Suite 1400 Sacramento, CA |
| 12 | California Employment Law Council (Amicus curiae for respondent) Represented by Stacy Dion Shartin Seyfarth Shaw 2029 Century Park East, Suite 3500 Los Angeles, CA |
| 13 | Employers Group (Amicus curiae for respondent) Represented by John Arthur VanHook Seyfarth Shaw LLP 2029 Century Park East, Suite 3300 Los Angeles, CA |
| 14 | Employers Group (Amicus curiae for respondent) Represented by Stacy Dion Shartin Seyfarth Shaw 2029 Century Park East, Suite 3500 Los Angeles, CA |
| Opinion Authors | |
| Opinion | Justice Carlos R. Moreno |
| Dockets | |
| Jun 27 2008 | Petition for review filed Respondents Pacific Telesis Group Attorney J. Al Latham, Jr., |
| Jun 30 2008 | Record requested |
| Jul 1 2008 | Received Court of Appeal record file jacket/briefs/appendix/accordian file |
| Jul 16 2008 | Answer to petition for review filed Kimberly McCarther et al., plaintiffs and appellants by David A. Rosenfeld, Weinberg Roger & Rosenfeld, PC |
| Jul 16 2008 | Request for judicial notice received (pre-grant) Kimberly McCarther et al, plaintiffs and appellants by David A. Rosenfeld, Weinberg Roger & Rosenfeld, counsel |
| Jul 25 2008 | Reply to answer to petition filed Pacific Telesis Group, respondent J. Al Latham, Jr., counsel |
| Aug 20 2008 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Aug 20 2008 | Letter sent to: all counsel enclosing a copy of the grant order and the form for certification of interested entities or persons |
| Sep 4 2008 | Certification of interested entities or persons filed by David A. Rosenfeld, Weinberg Roger & Rosenfeld, counsel for Appellants McCarther et al. |
| Sep 4 2008 | Certification of interested entities or persons filed by Thomas E. Geidt, counsel for defendants and respondents Pacific Telesis Group, et al. |
| Sep 5 2008 | Request for extension of time filed to file opening brief to November 18, 2008 Pacific Telesis Group, Pacific Bell Telephone Co., Advanced Solutions, Inc., Southwestern Bell Video Services, Inc. Pacific Bell Information Services SBC Services Inc., and SBC Telecom, Inc. Respondents |
| Sep 17 2008 | Extension of time granted On application of respondents and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 18, 2008. No further extensions are contemplated. |
| Nov 18 2008 | Opening brief on the merits filed Pacific Telesis Group, et al., respondents by J. Al Latham, Jr., Paul Hastings Janofsky & Walker LLP, counsel |
| Dec 12 2008 | Request for extension of time filed to and including January 26, 2009, to file appellants (McCarther and Huerta) answer brief on the merits. by David A. Rosenfeld, Weinberg et al., counsel |
| Dec 15 2008 | Extension of time granted On application of appellants and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 26, 2009. |
| Dec 26 2008 | Received application to file Amicus Curiae Brief The California Chamber of Commerce in support of respondents (by Erika C. Frank, Vice President and General Counsel |
| Jan 9 2009 | Permission to file amicus curiae brief granted The application of The California Chamber of Commerce for permission to file an amicus curiae brief in support of respondents is hereby granted. Any party may file a consolidated answer to all amicus curiae briefs within twenty (20) days after the last date that an application to file an amicus curiae brief may be filed under rule 8.520(f)(2). |
| Jan 9 2009 | Amicus curiae brief filed The California chamber of Commerce in support of respondents. by Erika C. Frank, counsel |
| Jan 13 2009 | Request for judicial notice filed (granted case) Appellants McCarther and Huerta by David A. Rosenfeld, counsel |
| Jan 27 2009 | Answer brief on the merits filed Kimberly McCarther and Juan Huerta, et al., appellants CRC 8.25(b) by David A. Rosenfeld of Weinberg, Roger & Rosefeld, counsel |
| Feb 5 2009 | Request for extension of time filed to file reply brief to March 19, 2009 Attorney J. Al Latham, Jr., Respondents Pacific Telesis Group, et al., |
| Feb 10 2009 | Extension of time granted On application of respondents and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including March 19, 2009. |
| Mar 17 2009 | Reply brief filed (case fully briefed) Pacific Telesis Group, et al., defendants and respondents by J. Al Latham, Jr., Paul Hastings et al, counsel |
| Apr 16 2009 | Application to file amicus curiae brief filed Amici Curiae California Employment Law Council and Employers Group in support of Defendants and Respondents Pacific Telesis Group, et al., [brief under same cover] |
| Apr 28 2009 | Permission to file amicus curiae brief granted The application of California Employment Law Council and Employers Group for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief. |
| Apr 28 2009 | Amicus curiae brief filed Amicus curiae for respondent: California Employment Law CouncilAttorney: Stacy Dion Shartin Amicus curiae for respondent: Employers GroupAttorney: Stacy Dion Shartin |
| May 15 2009 | Response to amicus curiae brief filed Plaintiff and Appellant: McCarther, KimberlyAttorney: David A. Rosenfeld |
| Aug 13 2009 | Received: Letter dated 8-12-2009 from J. Al Latham, Jr. of Paul Hastings et al., lead counsel for respondents, requesting that oral argument not be scheduled on October 8 or 9, 2009. He and wife are scheduled to depart for Europe on October 8 for a prepaid non-refundable vacation. |
| Oct 29 2009 | Case ordered on calendar to be argued Wednesday, December 9, 2009, at 9:00 a.m., in Los Angeles |
| Dec 9 2009 | Cause argued and submitted |
| Feb 16 2010 | Notice of forthcoming opinion posted To be filed on Thursday, February 18, 2010 @ 10 a.m. |
| Briefs | |
| Nov 18 2008 | Opening brief on the merits filed |
| Jan 9 2009 | Amicus curiae brief filed |
| Jan 27 2009 | Answer brief on the merits filed |
| Mar 17 2009 | Reply brief filed (case fully briefed) |
| Apr 28 2009 | Amicus curiae brief filed Amicus curiae for respondent: California Employment Law CouncilAttorney: Stacy Dion Shartin Amicus curiae for respondent: Employers GroupAttorney: Stacy Dion Shartin |
| May 15 2009 | Response to amicus curiae brief filed Plaintiff and Appellant: McCarther, KimberlyAttorney: David A. Rosenfeld |
| Brief Downloads | |
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| May 18, 2011 Annotated by benjamin treger | Facts: 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. Once an employee returns to work following any period of absence, section 5.01F may again be triggered if the employee is again absent for his or her own illness or injury. There is no bank of paid sick days that employees 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. Thus, if an employee 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 CBA also contains an attendance management policy, which outlines a schedule of progressive discipline that can be imposed upon an employee who doesn't meet attendance standards. An employee fails to meet these standards if he has eight or more absences in a 12-month period with no extenuating circumstances, or if he has more than four full days of absence and three or more "occurrences" of absences in a 12-month period with no extenuating circumstances. However, absences are 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.). 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 and medical leave act protected leave, which her employer denied. Procedural history: The trial court concluded that defendants' sickness absence policy did not constitute sick leave pursuant to section 233, and granted defendants' motion for summary judgment. Plaintiff appealed to the Court of Appeal, which reversed the trial court's grant of summary judgment for defendants. The Court of Appeal further concluded that section 234, which provides that employers may not discipline employees for taking leave under section 233, did not preclude defendants from disciplining employees for taking leave pursuant to section 233 to care for ill relatives in the same manner defendants disciplined employees for taking leave for their own illnesses or injuries. The California Supreme court granted defendants' petition for review. Issue: Holding: Analysis: Here, 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 disability programs if the illness or injury lasts longer than seven days. Thus, an employee's "current rate of entitlement" can be measured only in seven-day periods, and not in six-month periods as section 233 requires. Accordingly, section 233 does not apply to sickness absence policies like defendants'. Furthermore, Labor Code § 234, prohibits employers from using an absence control policy to "count[] sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension…" Thus, if section 233 required defendants to permit an employee to use a portion of this compensated time for kin care, section 234 would prohibit defendants from using its attendance management policy to limit the amount of kin care that an employee could claim. Thus, sections 233 and 234 together would permit an employee to claim as kin care far more compensated time off than the employee would be entitled to claim if personally ill. The Court found this result contrary to the plain intent of section 233. Relevant Statutes:
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