Lares v. Los Angeles County Metropolitan etc.
Unpublished, later certified for publication (Order attached) (2020)
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Rule of Law:
Where an employer's no-fault absenteeism policy provides that an employee may clear absences by working (or being available to work) during a certain clearance period, the employer does not violate the California Family Rights Act (CFRA) by extending the absence clearance period by the number of days the employee was on CFRA leave, provided the policy applies equally to all unpaid leaves.
Facts:
- Alfonso Lares was employed by the Los Angeles County Metropolitan Transportation Authority (MTA) as a bus operator from 2004 until March 2015.
- MTA had a collective bargaining agreement (CBA) which included an absenteeism rule subjecting employees to progressive discipline, up to termination, for accumulating a certain number of "charged" absences.
- The absenteeism rule allowed an employee to "clear" one instance of absence from their count by not having any absences for 60 consecutive calendar days.
- Absences covered under the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) were expressly excluded from being counted as "charged" absences for disciplinary purposes.
- MTA's record-keeping software for its absenteeism rule did not count days an employee was on non-charged leave, including FMLA/CFRA leave, towards the 60-day clearance period.
- Lares took 10 leaves of absence under the FMLA and CFRA during his employment, which were not counted as charged absences.
- Lares accumulated eight "charged" absences; on two occasions, more than 60 total calendar days had passed since a previous absence, but fewer than 60 counted days had passed because of intervening CFRA leaves.
- On February 13, 2015, Lares called in sick due to a cold, which was recorded as his eighth charged absence, leading to a formal disciplinary hearing and his termination on March 10, 2015.
Procedural Posture:
- Alfonso Lares filed a lawsuit against the Los Angeles County Metropolitan Transportation Authority (MTA) in Los Angeles County Superior Court (trial court), alleging retaliation for frequent use of CFRA leave, retaliation in violation of Government Code section 12940, subdivision (h), failure to prevent retaliation in violation of Government Code section 12940, subdivision (k), and interference with the use of CFRA leave.
- MTA and Lares filed cross-motions for summary judgment/summary adjudication, primarily disputing whether MTA’s absence clearance policy violated the CFRA.
- The trial court concluded, as a matter of law, that MTA was not required to count time spent on CFRA leave towards the 60-day absence clearance period, and therefore MTA did not violate the CFRA.
- The trial court granted MTA’s motion for summary judgment and denied Lares’s motion for summary adjudication.
- Lares filed a motion for reconsideration, which the trial court treated as a motion for a new trial and subsequently denied.
- Judgment was entered in favor of MTA.
- Lares, as appellant, timely filed a notice of appeal with the California Court of Appeal, Second Appellate District, with MTA as appellee.
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Issue:
Does an employer's failure to count days an employee is on California Family Rights Act (CFRA) leave when calculating a 60-day absence clearance period, under a no-fault attendance policy, violate the CFRA?
Opinions:
Majority - Willhite, J.
No, an employer's failure to count days an employee is on CFRA leave when calculating an absence clearance period does not violate the CFRA. The court rejected Lares's argument that extending the absence clearance period "counts against" an employee for taking CFRA leave. It reasoned that an employee is disciplined for unexcused absences within a specific number of scheduled work days or available-to-work days, not for taking the protected leave itself. The court adopted the rationale from Bailey v. Pregis Innovative Packaging, Inc. (7th Cir. 2010), which held that an employer does not violate the FMLA by not counting FMLA leave towards an attendance point removal period. This is because "absenteeism forgiveness" is an employment benefit accrued by working, and neither the FMLA nor the CFRA (per Cal. Code Regs., tit. 2, § 11089, subd. (b)(1)) generally requires employees to accrue new employment benefits while on leave; rather, benefits must resume at the same levels upon return. The court clarified that "absence clearance" is a reward for working, not a "health and welfare employee benefit plan" that must continue during leave under Cal. Code Regs., tit. 2, § 11092, subd. (f). The court noted a crucial caveat: this policy is permissible only if the employer extends the absence clearance period for any unpaid leave, thus not treating CFRA leave less favorably than other unpaid leaves. The court found Lares failed to present a triable issue of fact that MTA treated other unpaid leaves (such as jury duty, military, or bereavement) differently than CFRA leave for absence clearance purposes, as evidence he presented was either out of context, later corrected, or from a source without direct knowledge.
Analysis:
This case provides important clarification on the permissible scope of employer no-fault attendance policies in relation to the California Family Rights Act. It establishes that, generally, CFRA does not compel employers to grant accrual of work-related benefits, such as absence forgiveness, during an employee's leave. The ruling aligns California's interpretation with federal FMLA precedent on this specific issue, emphasizing that CFRA's primary purpose is job protection upon return, not the continuous accrual of all benefits during the leave period. Employers can avoid CFRA violations if their no-fault policies consistently apply the extension of clearance periods to all unpaid leaves, preventing discrimination against CFRA users. This provides employers with greater certainty in designing attendance management systems while upholding the spirit of CFRA.
