McCarther v. Pacific Telesis Group, 163 Cal. App. 4th 176 (2008)

Kimberly McCarther alleged that her employer, SBC Services, violated Cal. Labor Code § 233 (the “kin care” leave statute) when it failed to pay her for her absence for seven consecutive workdays in 2004 to care for two of her children who were ill. McCarther and another employee sued on behalf of themselves and all similarly situated employees. Section 233 states that an employee may use in any calendar year the amount of sick leave accrued by the employee during a six-month period “to attend to an illness of a child, parent, spouse, or domestic partner of the employee.” The collective bargaining agreement between plaintiffs’ union and the employer provided that “there is no cap or limit on the number of days that employees may be absent from work and receive full sickness absence payments…” In interpreting the statute, the Court of Appeal held that Section 233 plainly applies to the “sickness absence” policy at issue in this case even though that policy provided employees with an unlimited number of days of paid sick leave. Cf. Farrell v. Tri-County Metro. Transp. Dist., 530 F.3d 1023 (9th Cir. 2008) (employee was properly awarded lost wages for absences from work that were caused by emotional condition that resulted from employer’s wrongful denial of FMLA leave).