Legal Briefings

By Hall, James E.; Kobata, Mark T. et al. | Workforce Management, April 2010 | Go to article overview
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Legal Briefings

Hall, James E., Kobata, Mark T., Denis, Marty, Workforce Management


THE COMMUNICATIONS WORKERS OF AMERICA entered into a collective bargaining agreement with SBC Communications Inc. that included a provision allowing employees with one year of service to be paid for "sickness absence" up to five consecutive days in a seven-day period, with that entitlement renewing each time the employee returns to work. The only limitation on the amount of paid sick leave is an attendance management policy that provides for progressive discipline for excessive absences. That collective bargaining agreement applied to certain employees based in California.

When two California-based SBC employees were not paid for time taken off to care for ill family members, they sued SBC, claiming a violation of the California Labor Code's "kin care" provision. That law provides that an employer "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 rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee."

The California Supreme Court held that the Labor Code's "kin care" provision does not apply to sick-leave policies that provide an uncapped amount of paid leave, such as the one at issue here. The court held that because the "kin care" law permits employees to use "accrued and available" sick leave, the statute does not apply to all other forms of compensated sick leave, but only those "that provide a measurable, banked amount of sick leave." The court held that in uncapped policies, it is impossible to determine how much paid sick leave an employee is entitled to in a six-month period and therefore how much paid leave the employee could use for kin care. McCarther v. Pac. Telesis Group, Cal., No. S164692 (2/18/10).

IMPACT: Employers are advised to review applicable state law that may afford employees the opportunity to use sick leave and other benefits to care for family members.


THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION has published a notice of proposed rulemaking giving meaning to the "reasonable factors other than age" defense in the federal Age Discrimination in Employment Act.

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Legal Briefings


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