California Kin Care and Uncapped Leave Plans

The California Supreme Court, in a rare unanimous decision determined early in February that the Kin Care statute of the California Labor Code which allows employees to take up to half of their annual accrued sick time to care for a relative who is ill, cannot be applied when the employer does not set a cap on annual sick time accrual. The case is McCarther v. Pac. Telesis Group, No. S164692, (Cal. Feb. 2, 2010)

From Jackson Lewis:

Plaintiffs Kimberly McCarther and Juan Huerta worked for SBC Services, Inc., and Pacific Bell Telephone Company, respectively. They both were members of the Communication Workers of America, which had entered into a collective bargaining agreement (“CBA”) with the employers. The sick leave policy under the CBA provided for up to five consecutive days of paid time off for employees’ own illness or injury in a seven-day period. Each time an employee returned to work from an absence the entitlement would renew. The CBA also provided employees each year with six paid personal days off that they may take for any reason.

Unlike other sick leave policies, however, this policy did not provide for a bank of paid sick days accrued incrementally over a period of time. The policy also did not cap the total number of days employees could be absent each year. Employees were not paid for absences to care for ill family members.

When the plaintiffs took time off to care for their respective families, neither were disciplined for their respective absences, but neither were they paid for the days taken, which both considered to be in violation of the Kin Care Statute. Subsequently, the plaintiffs filed a class action lawsuit against the employer. The court found in favor of the defendant via summary judgement. Upon appeal, the CA Appeals Court reversed the ruling and found the employer’s policy did fall under the Kin Care statute. This time the employer appealed.

Again, from Jackson Lewis

: Examining the statute’s language, the Supreme Court disagreed with the Court of Appeal, finding the sick leave policy at issue was outside the “kin care” statute. Specifically, the Supreme Court noted that Section 233 permits employees to use up to six months (i.e., one-half) of their annual accrued paid “sick leave” to “attend to an illness of a child, parent, spouse, or domestic partner of the employee.” The definition of “sick leave” is “accrued increments of compensated leave.” The Supreme Court concluded that, by its terms, “the reach of the statute is limited to employers that provide a measurable banked amount of sick leave.”

Personally, I’m glad that this situation was able to provide greater clarification on Kin Care. While the statute itself seems very straight forward, it also seems that more and more employers are moving towards less traditional time off policies or even no time off policies at all, something which I don’t agree, but a reality nonetheless.

All of this just continually proves my point again and again, just when you think you’ve got sure footing in California employment law, the ground gives out and you start sinking again.