*1 644
hair was harmless. Consequently, reject we the defen- dant’s claim that the state’s use of that evidence entitles him to a new trial.
The judgment Appellate Court is affirmed. In opinion justices the other concurred.
SOUTHERN NEW ENGLAND TELEPHONE
COMPANY v. SHAUN B. CASHMAN, COMMISSIONER OF ET AL. LABOR,
(SC 17741) Norcott, Katz, Palmer, Zarella, Vertefeuille and Js. Argued January officially August 28, released *2 were Lori B. Alexander Vegliante, David with whom appel- A. for the and, brief, Christopher Kelland, on the (plaintiff). lant attorney III, general,
Thomas P. assistant Clifford whom, brief, Blumenthal, were Richard on attorney McCullough, and William J. assistant general, attorney general, appellee (named defendant). for the E. Talwar, pro vice, Mary
Atul hac with whom was Communi- Kelly, appellee 1298, for the Local (defendant America). cations Workers of
Opinion ZARELLA, plaintiff, J. The Southern New England Telephone Company, appeals from the of the judgment declaratory of the named affirming ruling trial court defendant,1 Cashman, Shaun B. the commissioner of application labor (commissioner), regarding law, and medical leave General Stat Connecticut seq. (family law), utes 31-51kk et and medical leave action, The other defendant Local Communications Workers permitted plaintiffs (Local 1298), of America was to intervene in the adminis represеntative appeal. bargaining cer trative Local 1298 is the collective plaintiffs employees tain of the whose interests be affected declaratory ruling. commissioner’s defendant, Cashman, B. We refer to Local 1298 and the named Shaun labor, collectively commissioner of as the defendants. set forth in the collective bar policy
to the sick leave plaintiff employ between the and its gaining agreement court appeal, plaintiff ees. On claims that the trial ruling affirmed the commissioner’s improperly leave,” employer’s policy provides “accumulated 31-5lpp (1), is in General Statutes (c) as that term used a maximum number of when it to each grants days per year for which the permit but does not unused for his or her own illness to the leave at the end of the to be carried over year. plaintiff claims that sub following *3 carry them to over ject policies permit that do not 1pp under 31-5 (c) unused sick leave are not covered employers employees from prohibits denying which (1), up to use to two weeks of “accumulated family purposes. leave We disagree leave” for medical plaintiff and, judgment affirm the accordingly, with the of the trial court. as set procedural history, facts and following
The decision, by trial court in its memorandum of forth In appeal. 2001, to our resolution of this are relevant plaintiff employees and its entered into collective for a agreement providing graduated bargaining The employment. on of policy longevity leave based full-time no sick leave granted agreement year employment, days paid of five of their first during year of their second sick leave at the commencement days paid and ten of sick leave at the employment of year employment and of their third of commencement The year employment agreement for each of thereafter.2 provisionally specifically provided: regular regular agreement “A pay periods part-time employee . . . receive normal for short full or shall by duty personal . . . as indicated below. time off occasioned sickness year “During of net credit service —None. the first days. year working “During the second of net credit service —Five days years working during each net credited service —Ten “After two year.” service year leave at the end permit did not unused sick year. following over to the to be carried Assembly amended the In the General 2003, law, 1, 2003, effective October and medical employees the employers from prohibit denying “accumulated sick leave” up to two weeks of use purposes. Public Acts medical 31-51pp 03-213, 1, codified at General Statutes § No. requested a declara- April 16, 2004, plaintiff On (c). tory respect to the from the commissioner ruling employer’s policy provide “Does an following question: used in 31- leave,’ ‘accumulated sick as that term is [§ days maximum number of sick 51pp when it sets a (c)], employee may paid per year for which [his such leave is not carried illness, own [when] her] if from one to the next but is lost not used over year?”3 calendar employee by the end of in original.) (Emphasis type ruled that the
Thereafter, the commissioner bargaining sick leave described in the collective meaning satisfied the of “accumulated sick agreement contemplated support In *4 (c). leave” § purpose his the commissioner cited the remedial ruling, family leave law4 and its regulations, of the and medical plaintiffs policy and the fact that the tied progressive availability increases in the sick leave to seniority. The commissioner also examined employee’s history family of the and medical leave legislative Assеmbly law and concluded that the General did not intend to limit the of “accumulated sick leave” meaning 3 plaintiff declaratory ruling questions sought The also a on two other pertaining law, and medical leave to sick leave under the neither of appeal. which are the issue on relevant to explained The commissioner that the law’s “intent is to strike a balance employer’s predictable presence employees between the need for the of its employees’ seriously time to care for ill members and need for off [the] for their own serious health conditions.” [or] year
to leave carried over from one to another. The determined that commissioner thus “accumulated “the 31-51pp (c) (1) leave” under included kind of days annual renewal of sick described under the collec- tive bargaining agreement.” plaintiff appealed
The to the trial court from the com- pursuant 4-183,5 missioner’s to General Statutes ruling “erroneous, incorrect, that the decision was claiming statutory provisions, contrary law, in violation of misapplication misinterpretation based and/or [on] plaintiff the law.” The also that the decision was argued clearly arbitrary, capricious and erronеous. The trial court affirmed the on similar to those ruling grounds appeal on which the commissioner had relied. This followed. plaintiff applies only claims that (c) (1) permit policies
to sick leave to accumu- by late sick over unused sick leave from carrying one to another or on a basis over the course regular year. respond that, of a The defendants because single nature, liberally the statute is remedial it must be provides part: “(a) person General Statutes 4-183 relevant A who agency has exhausted all administrative remedies within the available by aggrieved appeal Superior who is a final decision to the Court as provided in this section. * ** * “(j) judgment agency The court shall not substitute its for that of the questions weight to the of the evidence on of fact. The court shall affirm agency rights the decision of the unless the court finds that substantial person appealing prejudiced have been because the administrative inferences, conclusions, findings, (1) or decisions are: In violation of consti- statutory provisions; (2) statutory authority tutional or in excess of the upon procedure; agency; (3) (4) unlawful made affected other error law; clearly reliable, probative, (5) erroneous in view оf the and substantial record; arbitrary capricious (6) evidence the whole on characterized *5 by clearly abuse of discretion or unwarranted exercise of discretion. If the prejudice, appeal and, appropriate, court finds such it shall sustain the if judgment (k) a under subsection render of this section remand the proceedings. purposes section, case for further For of this a remand is a judgment. final . . .” similar to applied policies and to sick leave construed bargaining agreement, that described in the collective carry over unused employees which does not allow agree one to another.6 We from the defendants. analysis by applicable forth the begin setting
We our of “Ordinarily, standard of review. resolution [o]ur by scope appeals] is the limited guided [administrative Administra- judicial review afforded the [Uniform 4-166 et tive Procedure Act (UAPA), by an adminis- seq.] ... to the determinations made in view of all the decide, trative must agency. [W]e order, its acted evidence, agency, issuing whether the arbitrarily or or abused its dis- unreasonably, illegally, by the admin- cretion. . . . Conclusions of law reached must stand if the court determines that agency istrative the law to they application resulted from a correct reasonably logically the facts found and could fol- . . . low from such facts. court, however, required
“A is not to defer reviewing ... It improper application to an of the law. is expound apply governing function of the courts to principles previously law. . . . We have recognized interpretation that the construction and of a statute is a question courts, of law for the where the administrative special decision is not entitled to deference .... Questions of law a broader standard of review [invoke] ordinarily whether, than is involved in deciding light has evidence, agency unreasonably, acted arbitrarily, or in abuse of its discretion. . . . illegally Following law, plaintiff the enactment of the and medical leave renegotiated bargaining and its entered into collective parties agreement, the terms of which are not before this court. Both con argument, however, present appeal ceded at oral that the involves a live controversy subsequent bargaining and is not moot because collective agreement essentially provisions preced contains the same sick leave as the ing agreement.
650
of
question
us to examine a
this case forces
Because
interpretation
and
[statutory] construction
law, namely,
quotation marks
is de novo.” (Internal
. . . our review
Social Ser
v. Commissioner
Semerzakis
omitted.)
of
We are
11-12,
(2005).
“The statute, construing When are well established. [o]ur give is to ascertain and effect objective fundamental ... In other legislature. intent of the apparent the manner, in a determine, reasoned words, we seek applied to the statutory language the meaning question of whether case, including facts of [the] In actually apply. seeking ... does language l-2z directs meaning, determine that itself and its text of the statute us first to consider the after such If, examining to other statutes. relationship relationship, meaning and such considering text yield and does not plain unambiguous text is such results, extratextual evidence absurd or unworkable . . . shall not be considered. of the statute meaning we also plain unambiguous, is not When a statute history interpretive legislative guidance look for to the enactment, its surrounding and circumstances *7 and to implement, to designed it was policy legislative and common law relationship existing legislation its to subject matter general the same principles governing Friezo v. quotation omitted.) . . . .” marks (Internal A.2d 533 Friezo, 166, 181-82, (2007). 281 Conn. It shall provides: “(1) (c) General Statutes § 31-51qq, inclusive, a violation of sections 31-51kk any employer deny employee an sick leave or to up use to two weeks of accumulated demote, suspend discharge, discharge, threaten any employee in manner discriminate an against up to use, to exercise the using, attempting to a two weeks of accumulated sick leave to attend spouse serious health condition of a son оr daughter, parent employee, adoption of the or for the birth or employee. purposes of a son or For of daughter subsection, ‘sick means an absence from leave’ compensation provided work for which is an through employer’s policy compen- bona fide written providing by illness, sation for loss of occasioned but does wages not include compensa- absences from work for which provided employer’s plan, tion is through including, to, but not limited long-term disability plan, short or plan whether or not such is self-insured. Any employee by a
“(2) aggrieved violation of this complaint subsection file a with the Labor Commis- provisions sioner violation of the alleging of this subsec- Upon receipt tion. complaint, such the com- missioner shall hold a After the hearing. hearing, party copy commissioner shall send each a written the commissioner’s decision. The commissioner employee appropriate award the all relief, including employee’s previous or reinstatement to the rehiring job, payment wages of back and reestablishment of benefits to which the otherwise if a violation of this subsection eligible
would have been Any party by had not occurred. the decision aggrieved may appeal of the commissioner the decision to the Superior provisions with the Court accordance [UAPA]. specified and remedies this subsec-
“(3) rights tion and nonexclusive and are in addi- are cumulative tion to other or remedies afforded contract rights of law.” provisions or under other statute, which language We first turn to the plaintiff does define the word “accumulated.” The dictionary definition of “accumulate” observes that the *8 a up increasing is “a or so as to make gradual piling quantity or . . . .” Webster’s Third New great store Dictionary. plaintiff International thus contends that “accumulated sick leave” refers to sick leave that from one to another or has been carried over monthly contrast, In the acquired on a basis. gradually contends that “accumulated sick leave” commissioner paid in available progressive means “a increase employee’s seniority.” leave which is tied to the (Inter- that, quotation nal marks We conclude omitted.) plausible, only are that although interpretations both compatible of the commissioner is with the broader statutory scheme. is repeatedly stated, legislature
As we
have
“the
always
to have created a harmonious and
рresumed
body
quotation
law .
.
.
.” (Internal
consistent
Management
Renaissance
Co. Con-
v.
omitted.)
marks
Housing
Authority,
necticut
Finance
227,
281 Conn.
238,
requires
653 just have a rational presumed is intended lature T. omitted.) marks Teresa (Internal quotation result.” 428 734, A.2d (2005); v. 272 Conn. Ragaglia, than one con 1-2z. “When more cf. General Statutes § adopt we the one possible, is struction [of statute] effective and workable and that renders the enactment or bizarre reject any lead to unreasonable might v. quotation omitted.) marks (Internal results.” Graff 645, 653, 894 A.2d Zoning Appeals, 277 Conn. Board of (2006). we General present case, In the examine Statutes construing ll the word (B) 31-51 assist (e) (2) The former statute (c) (1). “accumulated” elect, an an grants eligible “to employer require employee, substi any paid tute accrued . . . sick leave of the medical employee” part leave to provision, which the is entitled under that parent for a including child, spouse leave to care a serious condition. (Emphasis added.) health General Statutes (e) (2) (B).7 Although (e) §§ 31-51ZZ 31-51ll (e) (2) provides: eligible employee (B) “An 31-51K may elect, may require employee, substitute leave, personal leave, the accrued vacation or medical sick leave *9 employee provided subparagraph (C), (D) (E) of the for leave under or (2) (a) any part subdivision of this for of subsection section the sixteen- period subsection, except nothing under said that in week of such leave inclusive, 31-51qq, require 5-248a 31-51kk to shall an section or sections provide employer paid paid any to or in sick leave medical leave situation any paid employer normally provide in which such would not such leave.” (Emphasis added.) provides: (a) (2) § General Statutes 31-5lñ “Leave under subsection may following be taken more of the for one or reasons: Upon daughter employee; “(A) a son or the the birth of Upon “(B) placement daughter employee of a son or with the for adoption care; or foster “(C) spouse, son, daughter parent In order care for the or of the to or employee, son, spouse, daughter parent if such or has a serious health con- dition; “(D) employee; of a serious health of the Because condition or organ “(E) In as an or marrow donor.” order to serve bone 1pp and 31-5 are in
(2) (B) (c) (1) distinguishable certain other respects,8 permit employees both statutes to sub paid stitute sick leave for pur medical poses. It interpretive is therefore reasonable to seek from 31-51ll guidance (e) (2) (B) because the “accu § mulated sick leave” to which refers (c) (1) § 31-51ll example, (e) apply (2) (B) § For 31-51K does not in situations which employer’s plan normally employee paid would not allow an to use sick purposes statute; leave for the medical leave described in that see (e) (2) (B) (“nothing § General Statutes 31-51ll in section 5-248a or sections 31-51qq,inclusive, require employer provide paid 31-5 1kk to shall an to paid any leave or medical leave in situation in which such would normally provide any 31-51pp paidleave”); (c) (1) applies § such whereas qualified employees, including to all otherwise those who receive benefits exclusionary (e) (2) (B) provi § under 31-5 1ll within those who fall (e) (2) (B). 31-51pp (c) (1) (“[i]t sion of 31-51ll See General Statutes 31-51qq,inclusive, any employer shall be aviolation of sections 31-51kkto for deny employee right up an tо use to two weeks of accumulated sick discharge, demote, suspend discharge, leave or to threaten to inor employee against using, attempting manner discriminate an for or to exercise right use, up to two weeks of accumulated sick leave to a to attend daughter, spouse parent serious health condition of a son or or of the employee” [emphasis purposes paid added]). The for which sick leave respects. be used under the two statutes also differ certain Section 31- (e) (2) permits (B) employee’s 51ll such leave for the to be used care of the child, spouse parent condition, employee’s or with a serious health for the purpose serving organ own serious health condition or for the anas or 31-51pp (c) (1), hand, permits bone marrow donor. Section on the other an employee paid to use at least two weeks of sick leave for the birth or adoption employee’s child, employee’s as well as for the care of the child, spouse parent with a serious health condition. enforcement, provides 31-51pp (c) (1) On the issue of 31-51qq, inclusive, shall be a violation of sections 31-51kk to “[i]t any employer deny up an to use to two weeks of discharge, demote, discharge, accumulated sick leave or to threaten to suspend against using, or in manner discriminate attempting use, up to exercise the to two weeks of accumulated designated purposes. Although provision sick leave” for the the enforcement only (c) (2) aggrieved §in is available violations (c), employees employers of subsection whose allow them to use child, parent spouse (e) (2) (B) leave to care for a under 31-51ll *10 right 31-51pp (c) § enforce the to do so for at least two weeks under because express language (c) (1), of the in which subsection refers to violations of 31-51qq, §§ 31-51kk to inclusive. may be of sick leave that type be the same appears to 31-51ll (e) leave under medical substituted (B). (2) 31- statutory the we note language, to
Turning rather than “accrued,” word (B) uses the (e) (2) 51ll in referring of the statute9 and “accumulated,” the title unpaid leave leave. paid of to the substitution “earned,” than “accu and rather The words “accrued” corresponding regulat are in the mulated,” also used Labor 31-51qq (“the See General Statutes ions.10 establish shall ... adopt regulations Commissioner necessary the implement guidelines procedures adopted lаw]”). Regulations medical leave [family “Family Length and medical leave: Statutes 31-51llis entitled: General schedules; leave; eligibility; substitution of reduced leave intermittent or added.) paid leave; employer.” (Emphasis notice to accrued Agencies 31-51qq-18 Regulations State of Connecticut Section the part: Generally, [family provides “(a) leave law and medical in relevant unpaid. However, (FMLA)] the described leave is under circumstances permits employee section, eligible to substitute choose FMLA an employee paid does not choose to substitute for FMLAleave. If the leave may require employee leave, employer paid leave for FMLA accrued paid leave. accrued leave for FMLA to substitute 4* paid vacation, personal “(c) leave or medical/sic/c Substitution accrued family member, any unpaid to care for a be made for leave needed employee’s of medical/sick own serious health condition. Substitution employer’s meet the be elected the extent the circumstances leave employer requirements for the medical/sick leave. An is usual use of unpaid paid required FMLA sick or medical leave for to аllow substitution employer’s policy would not situation’ where the uniform leave ‘in paid employee, therefore, normally has a allow such leave. An seriously paid care for a ill member substitute medical/sick leave to paid only employer’s plan used for that if the leave allows leave to be paid Similarly, employee purpose. does not have the to substitute not covered leave for serious health condition which is medical/sick plan. employer’s paid “(g) If neither the nor the elects to substitute circumstances, unpaid FMLA the above conditions and leave for leave under which is earned or shall remain entitled to all employer’s plan. (Emphasis added.) . . the terms under accrued *11 656
pursuant to a legislative directive have the force of law.
Empire
Dixon v.
Co.,
Mutual Ins.
See,
e.g.,
189 Conn.
n.5,
452
Neither “accrued” nor “earned” is defined in 31-§ 51 ll or in the applicable regulations. Under the rules of statutory construction, however, phrases “words and shall commonly approved be construed to the according . . . .” usage language 1-1 (a). “If a statute оr regulation sufficiently does not define term, appropriate it is to look to the common under- standing expressed dictionary.” of the term as in a Historic quotation District (Internal marks omitted.) Commission v. Hall, 672, 679-80, Conn. 923 A.2d The definition of in (2007). “accrue” Webster’s Third Dictionary New International is “to come into existence as an enforceable claim: by vest as a “to come right,” way of increase or addition,” periodically or “to be accumulated . . . .” The definition of “earn” is “to equitable receive as return for work done or services remuneration,” rendered: have accredited to one as duly worthy “to come to be of or entitled to as remunera- tion for work . . or services . .’’Id. plaintiffs policy employees of providing annual
progressive increases in sick leave on the seniority performed basis of for work during preced ing satisfies both definitions. Thus, interpreta tion of the term “accumulated sick leave” in § (c) (1) employees policies includes whose do not permit carry them over sick leave to the following year is the most workable construction of the statute 31-51 ll (e) (2) because it is the most consistent with words, In other use of the word (B). “accrued” 31- 51ll applies to all (e) (2) (B) covered carry over allowed who are those statute, including who year and those year leave from “accrued” “accrued” have time, any point at who, but may not, *12 to them. leave available only employees that argues nonetheless plaintiff leave carry over sick them to allow plans whose benefit desig leave for paid sick to use permitted should have only employees those because purposes nated We 31-51pp (c) (1). under § sick leave” “accumulated employees to treat no sense simply makes It disagree. year from one sick leave carry over not able to who are who are different from those manner in a another to by their plans adopted under the to do so permitted mean different by attributing Furthermore, employers. 31-51pp (c) (1) in § word “accumulated” to the ings (B), ll (e) (2) 31-51 § word “accrued” and the employ to certain rights be granting would legislature they would that statutory part in one scheme ees parts of the same in other be allowed to enforce not leg that the We therefore conclude statutory scheme.11 “accumulated,” “accrued” words islature used the provisions. in the relevant interchangeably “earned” is in accord 1pp оf 31-5 also (c) (1) a construction Such and medical purpose of with the remedial Co., v. International Silver See, law. Misenti e.g., stat (1990) (remedial A.2d 690 206, 210, 575 215 Conn. limitations on “impose not be construed ute should itself does . . the statute . that provided benefits limiting no addition, In there is clearly specify”). statutory indicating scheme in the language be treated differ employees to intended for legislature carry over they are able on whether ently depending another. We there- year one sick leave from unused to substitute two example, exercise their who For child, (e) (2) (B) care for a § 31-51ll sick leave under weeks of “accrued” 31-51pp (c). parent under spouse to enforce that would be unable opinion. footnote 8 of this See
fore conclude that the term “accumulated sick leave” in 31-51pp type includes the (c) (1) described in the collective bargaining agreement at appeal. issue in this
To the extent that ambiguity remains, the legisla history tive contains no indication that (c) “accumulated sick leave” was intended to exclude sick leave that not be earned over from one Contrary plaintiffs another. to the claim, legislative history specifically does not that the suggest legislature chosе to use the word applica “accumulated” to limit only tion of the statute. The restriction significant dis cussed the committee on the during hearings legislation employer’s was an amendment limiting obligation *13 accept paid the substitution of unused sick leave to provision’s potential two weeks because of the eco nomic effect on individual if employees businesses amounts of unused leave large permitted were to substi tute all of their accrued sick family leave for medical purposes. See Conn. Joint Committee Standing Hearings, Labor and Public Employees, 2, 2003 Sess., Pt. pp. 614-16, Representatives remarks of Richard O. Bel Lenny den and T. Winkler. Furthermore, leave was variously described during committee as hearing employees “currently time that have”; id., p. 615, remarks of Representative Winkler; “that bank of money”; id., p. 620, Representative remarks of Linda A. Orange; time”; id., 638, “accrued sick remarks of Leslie Brett, J. executive director of the permanent commis women; p. sion on the status of id., 643, remarks of Robert Katz; Id., p. and “time banked . . . .” 642, remarks of Robert Katz. No suggestion was made that provision applied only policies should be under which sick leave be could carried over to the following year or that thе word “accumulated” was selected to limit the use of such leave to a certain group employees. Assembly followed in the General debate
Legislative dif- Representatives, House of pattern. In the a similar as “accumu- described legislators ferent 5426, remarks Sess., p. Proc., 16, Pt. lated”; 46 H.R. “accrued”; p. 5428, id., Ryan; Kevin Representative and “earned Winkler; Representative remarks Brian J. Representative Id., p. 5431, .” remarks of . . . explained that Senate, one Flaherty. legislator In the companies and those to those provision “geared was time, their sick have accumulated employees [who] Pt. Proc., 46 S. added.) (Emphasis have not used it.” B. of Senator Edith 4001, remarks Sess., p. the committee hear- Furthermore, the focus of Prague. not on language and the debates was legislative ing issue of whether and but on the larger of the statute made or could be family how and medical leave should so ease people as to available number greater who might members the financial burden on away to care for other required to time from work take appears to have legislature The thus members. broadly term “accumulated sick leave” understood the had been referring sick leave that earned yet but not used. interpretation con- plaintiff claims that such an structively from the eliminates the word “accumulated” *14 of principles of well statute violation established if statutory The that the plaintiff argues construction. the and medical leave had intended legislature types leave, of it could have apply law to to all “accumulated,” or used the “available” instead of word any not at all. We disagree. chosen to add term limiting the statutory It is a tenet of construction that “basic meaningless provi- intend enact to legislature [does] statutes, presume . . we that construing sions. . [I]n sentence, every clause, a behind or purpose there is is part act and no of statute phrase used in an quotation marks Small superfluous.” omitted.) (Internal v. Going Forward, Inc., 417, 424, Conn. 915 A.2d 298 (2007). purpose One obvious of the word using “accumulated” in 1pp 31-5 is (c) (1) to distinguish leave credited on performed the basis of work in the past from sick leave that be obtained from sick leave banks for to performed work in the future. In the absence of this limiting term, distinction would absolutely not be clear. Use of the word “available” would create a similar ambiguity because it also fails to past between distinguish Only and future sick leave. terms such as “accrued,” “earned” and “accumulated” refer to sick leave that has been employee credited to an on the basis of work performed past. in the Accordingly, far from reading the word “accumulated” out of the statute, present the interpretation is consistent with purpose statute’s of prohibiting employers from denying right up to use to two weeks of paid sick leave earned on the past basis of their work for and medical purposes.
The is affirmed. judgment In opinion NORCOTT, PALMER and VERTE- FEUILLE, Js., concurred.
KATZ,J., majority concurring. concludes that an employee’s right, provided under General Statutes 31-51pp (c) “up to use to (1),1 two weeks of accumu- provides: (c) “(1) It shall be a violation of 31-51qq, inclusive, any employer deny sections 31-51kk an for up to use to two weeks accumulated sick leave or of discharge, discharge, demote, suspend threaten to or in manner against using, attempting discriminate an exercise use, up to two weeks accumulated sick leave to attend to a of daughter, spouse parent serious health condition a son or employee, adoption daughter employee. the birth or a son or purposes subsection, For of this ‘sick leave’ means an absence from wоrk compensation provided through employer’s for which is bona fide written policy compensation providing wages illness, for loss of occasioned but compensation provided does not include absences from work for which is *15 through employer’s plan, including, to, an long- but limited a short or disability plan, plan term whether or not such is self-insured. for a to care leave”; added); (emphasis lated time that to draw on sick employee an permits member rejects majority The therefore has earned. employee England New Southern plaintiff, of the the construction means that Company, “accumulated” Telephone that employ- only if the entitled to this benefit employees are to another. period from one carries over ee’s sick leave how- majority’s disagree, conclusion. I I with the agree conclusion. reasoning of that ever, with the essential analysis with General Statutes majority begins The its our provision of state (2) (B), 31-51ll another (e) by “(2) Any employee aggrieved of this subsection file a a violation provisions complaint alleging of the Labor Commissioner violation with the Upon receipt any complaint, of such the commissioner of this subsection. hearing. hearing, send After the commissioner shall each shall hold a party copy decision. The commissioner a written of the commissioner’s appropriate relief, including rehiring employee or reinstatement award the all previous job, payment wages employee’s reestablishment of back employee employee have otherwise would been of benefits which the Anyparty aggrieved eligible if of this subsection had not occurred. a violation Superior by may appeal decision to the the decision of the commissioner chapter provisions with the of 54. Court accordance “(3) specified rights in this are and remedies subsection cumulative any rights are in other remedies afforded and nonexclusive and addition to or provisions added.) (Emphasis law.” under other of contract or employer provides paid (e) provides: “(1) 31-51ll If an workweeks, leave for sixteen the additional weeks leave fewer than necessary required under attain the sixteen workweeks leave sections inclusive, may provided compen 31-51qq, without 5-248a 31-51kkto sation. may require employee may elect, employer “(2) (A) eligible or an An leave, personal any paid employee, accrued vacаtion to substitute of the provided subparagraph leave or leave of the for leave under any (B) (a) (A), (C) (2) subdivision of subsection of this section for period part subsection. of this sixteen-week of such under said may require employee may elect, employer “(B) eligible or an An leave, personal paid employee, to substitute of the accrued vacation provided leave, or sick for leave under medical (E) (2) (a) subparagraph (C), (D) or subsection of this of subdivision period any part leave under section of the sixteen-week of such said except subsection, nothing lkk in section 5-248a sections 31-5 to 31- provide 51qq,inclusive, require employer paid leave or shall normally such would not medical leave in situation in which provide any paid leave.” such *16 662
family and medical leave law (leave law); General Stat utes 31-51qq; 31-51kk through permits §§ elect, or an to require, the substi tution of certain types leave that the “accrued,” has including leave, unpaid for under the leave law.3 majority The then that, reasons 31-51 ll (e) (2) (B) provides because § substi tute sick leave for medical leave similar to that provided under 31-51pp it (c) (1), § is reasonable to look to the meaning of “accrued” sick leave under 31- § 51 ll “interpretive (e) in guidance” determining the of “accumulated” meaning sick leave under 31-51pp § (c). ultimately It concludes that the used the legislature terms “accumulated” and “accrued” interchangeably because such a construction is the most consistent man ner in which majority to read the statutes. The therefore adopt declines to the narrower term of “accumulated,” and instead reads (c) (1) as if it stated “accrued” or “earned.” I agree analyti cannot with this cal construct.
Typically, we assume that the legislature has a differ
ent intent when it uses different
terms in the same
statutory scheme. See Arminio v. Butler, 183 Conn.
211, 219,
The commonsense raised why legislature construction, however, is would provide every group have intended to this benefit to employees happen other than those who to receive their lump sum that cannot be carried forward period. example, into a new benefits For consider three employees, days employer each of whom has twelve paid sick leave available to use of December 1 of a year: given days A, who received twelve of sick leave January any days year’s on but who loses unused at day per end; B, who received one of sick leave month, carried over from month-to-month, but who loses year’s sick leave unused at end; C, and who received days per year years six of sick leave for two that carried year plaintiffs over from one to two. Under the construction of the term “accumulated,” B and C each would be entitled to use their sick leave for 31-51pp (c) § (1), leave under because their sick leave gradually, increased either from month-to-month or year-to-year. A, however, would not be entitled to use 31-51pp (c) (1), his sick leave for leave under solely days lump because he received his sick in one following into the over not be carried that could sum year. a distinc making such reason
If there is a rational statutory scheme. from it is not evident tion, limitations temporal imposes law the leave Although leave; see eligible employee becomes when an on once (a) (1); 31-51 ll (1) 31-51kk §§ have been employment and hours requisite period precondi imposes no further law sаtisfied, the leave in which of the manner on the basis eligibility tions to Indeed, benefits. employer receives mean “all bene benefits to law defines employees by an made available provided or fits 31-51kk (5). Statutes § . . . .” General demonstrate history 1pp 31-5 (c) purpose limited exclude this did not intend to legislature that the “accu solely by its use of the term class of I context, begin put this issue mulated.” To was the legislature law at the time the state of the 1pp became 31-5 that thereafter the bill considering the sixteen majority properly recognizes, As the (c). provided for under family and medical leave weeks of Statutes unpaid. is See General leave law generally 31-51qq-18 Agencies § Conn. State (d); Regs., 31-51 ll a substi however, allows (e) (2) (B), Section 31-51ll (a). *19 circum specified leave under paid of “accrued” tution An weeks of leave. any part of the sixteen stances for to ameliorate may “elect” that substitution employee impose, leave would hardship unpaid that the financial to avoid may “require” that substitution employer or an both the sixteen from work for employee’s an absence company law and leave under the leave unpaid weeks of 31-5177(e) (2) paid accrued leave. (B). of the leave law however, that section
Significantly, on the substitution specific a limitation imposes leave, types or medical but not on other accrued sick may leave, employee elect, “An providing: eligible employer require employee, or an to substitute any paid leave, personal leave, the accrued vacation employee pro or medical or sick leave of the for leave or of subdivision subparagraph (C), (D) (E) vided under any part of subsection of this section for of the (2) (a) period sixteen-week of such leave under said subsec tion, except nothing that in section 5-248a [leaves of employees) absence state or sections 3l-51kk to 31- inclusive, require an 51qq, employer provide shall paid paid any sick leave or medical leave in situation employer normally provide in which such would not paid leave.” Stat any (Emphasis added.) such General regulations clearly explain utes 31-51ll (e) (2) (B). exception that this “in situation” in 31-51ll (e) (2) employer paid limits the to substitute (B) only employer’s leave to those situations in which the plan purpose benefit allows sick leave to be used for the for which leave is See Conn. State sought. Regs., Agen 31-51qq-18 example, сies For an (c).5 employee could 31-51qq-18 Regulations Agencies, Section of the of Connecticut State paid unpaid?,” provides in entitled “Is leave leave or relevant [the law] Generally, part: “(a) unpaid. However, leave leave is under the [the law] section, permits eligible circumstances described in leave [the law] employee paid If to choose to substitute leave for leave leave. [the law] employee paid does not choose to substitute accrued leave for leave [the leave, employer may require employee accrued to substitute law] paid leave leave leave. [the law] “(b) employee paid vacation, personal Where an has earned or accrued family leave, paid part or be substituted for all leave birth, unpaid relating placement adoption leave of a child for [leave law] care, spouse, child, parent employee parent or foster or care for a of the employee’s spouse of the who has a serious health condition. The term ‘family provided by leave’ as used in leave refers to leave [the law] employer particular covering the circumstances for which the child, placement seeks leave for either the birth of a child and to care for such adoption care, spouse, child, parent of a child for or foster or care for a of the parent employee’s spouse with a serious health condition. example, employer’s plan “(1) For if the allows use of parent, required for a child but care not for is not allow accrued leave to be substituted for leave used to [leave law] parent. care for a *20 for a to care sick leave company paid not substitute pur- condition, permissible health a serious child with law, employ- if the leave under the unpaid for leave pose only sick leave to use employee permitted plan er’s family medi- and not for illness, employee’s own for the id. leave. See cal it provision as of the substitution
Thus, the benefit was (B) (e) (2) under 31-51ll to sick leave applied perspective they illusory employees’ from the rather — paid sick to use right to no more than were entitled under they already were entitled to which leave benefits benefit only evident employment agreement. their employer interfere that, should their to was purpose for a sick leave company with their use of employer’s law and the both under the leave permitted enforcement mechanisms they could invoke the plan, Statutes 31- leave law. See General provided under the ;6 Agencies Conn. State 51pp Regs., see also (a) (b) vacation, personal paid “(c) or medical/sick leave Substitution of accrued family member, any unpaid care for a be made for leave needed to employee’s of medical/sick own serious health condition. Substitution employer’s to the extent the circumstances meet the leave be elected employer requirements leave. An is not usual for the use of medical/sick unpaid paid required to allow substitution of sick or medical leave for [leave any employer’s policy where the uniform would not leave ‘in situation’ law] therefore, normally paid employee, has a to allow such leave. An seriously paid medical/sick leave to care for a ill member substitute only employer’s plan paid to be used for that if the allows leave purpose. Similarly, employee does not have the to substitute by which is not covered medical/sick leave for a serious health condition plan. employer’s . . .” part: 31-51pp provides “(a) (1) It shall be relevant 31-51qq, inclusive, any for a violation of sections 5-248a and 31-51kk of, attempt with, deny interfere restrain or the exercise or the any exercise, right provided said sections. under 31-51qq, “(2) be a violation of sections 5-248a and 31-51kk to It shall any employer discharged, inclusive, discharge or cause to be any any opposing any discriminate, against individual for manner other practice has said sections or because such made unlawful rights under said sections. afforded to such exercised 31-51qq, “(b) of sections 5-248a and 31-51kk to It shall be a violation discharged, inclusive, any person discharge to be or in or cause discriminate, against such individual: individual because other manner *21 668 31-51qq-25 protections enforcement (delineating
§ under law); Regs., Agencies 31-51qq- leave Conn. State types 47 of redress commissioner of labor (stating law). Thus, many family order for violations of leave situations, employees medical often either could not substitute their accrued sick leave or had insufficient purpose. Indeed, leave that could be used for that Family the federal and Medical 1993, between Act, seq., enacted, Leave 29 U.S.C. 2601 et was 2000, two thirds of the million workers who had under federal act to for unpaid taken care children or mеmbers could not afford the new leave, approximately workers, and of these 16 million one tenth were forced onto welfare. See Conn. Joint Public Standing Hearings, Committee Labor and Sess., p. Pt. written statement Employees, 2, 673, Beverley Brakeman, executive director of the Con- Chapter necticut of the National Organization by Family study Women conducted Leave Com- (citing mission). 2003, joint public
In committee on labor and employees considered several bills that (committee) paid leave, to take would have allowed expand circum- unpaid leave, rather than stances under which leave could be taken under the 933; Bill Nos. 26 and Proposed leave law. See Senate 5119, Proposed 5537, 5890, House Bill Nos. 6151 and Lenny T. Winkler introduced Pro- Representative 6448. Bill entitled “An posed Concerning House No. Act Family Leave,” the Use of Sick Time for which was enacted, amendments, after further as (c). any “(1) charge, Has filed or has instituted or caused to be instituted any proceeding, 5-248a and 31-51kk to 31- under or related to sections 51qq, inclusive; any any “(2) given, give, or is about to information in connection with Has inquiry proceeding relating right provided sections; under said or testified, testify, any inquiry “(3) proceeding Has or is about relating right provided ...” under said sections. busi require was purpose of the bill The stated “[t]o of sick time to authorize the use nesses origi Proposed Bill No. 6151. bill House leave.”7 31-5 1ll provision to nally to add this proposed drafted type on and set no limit the amount that “no provided be used. It that could *22 to attend use sick leave deny employee right an the to employee, parent of the child, spouse an illness of a or to employee,” a child of the adoption or for the birth or of employer interfering right, an from with that it barred to and civil remedies provided administrative it Thus, No. Proposed that House Bill 6151. right. enforce committee, bill would presented to the the originally no employees paid who had little or permitted have family to use be used for sick leave that could purpose. had for that See they whatever sick leave p. 642, Standing Hearings, supra, Conn. Committee Joint supported that he (testifying remarks of Robert Katz debilitating bill his from chronic because wife suffers law to use condition, then current did not allow him family leave, sick leave his collective bar accrued for provided only days sick agreement five gaining to and, although he is allowed under current law use family leave, vacation accrued vacation time his limited). leave is public original on the version Pro-
During hearings posed Representative Bill Winkler House No. 7 Proposed provides: House Bill No. 6151 “That section 31-51ll of the provide employer may deny general an statutes be amended to that no child, spouse use to to an illness a sick leave attend oí parent employee, adoption or or of the or for birth of a child of the employee. discharge, discharge, demote, No threaten to sus pend, using against or or manner discriminate attempting to attend to an illness of exercise use sick leave employee, adoption child, spouse parent or birth of a a Any employee. employee aggrieved this child of the a violation of section complaint Commissioner, may bring a with Labor civil file a judicial requirements this action for enforcement of the section.”
explained that bill would serve the dual purpose paid family with providing medical leave helping businesses curb employees’ abuse of sick leave.8 Id., p. Representative 613. Richard O. Belden Representative clarify asked Winkler to a comment that had he made that be a suggesting might there limit amount of sick leave that could used. Reрresentative be employers Belden noted that happy would system under which employees who had earned extraordinarily large amounts leave due to seniority could use their entire care for a member.9 An Id., p. exchange 614. ensued in which Representative Winkler support indicated that he would a limit of between two and weeks. four Significantly, Representative Winkler noted: “I’m not advocating just we . . . more give people time, way another *23 8 public hearings Proposed Because the on the House Bill No. 6151 took place before the committee redrafted the bill to include the term “accumu probably work some sick leave some seniority day it employer appears sick leave tors or others could considerably using lated," I, [Corporation], your 9Representative I had 200 more sick various other type days be years intention to to have used? Because I know . before I unlike the about 200 based method as the that would be a policy of limitation plan of more specifically that year sick, service, when provided like that could have Belden generously. descriptive majority, their sick and some possibly he on and it days. at worked in the cited how much nightmare, ascribеd to the term “accumulated.” sick leave to January would not indicate that some terms as work He grew you So that’s . . as an plaintiff provides inquired Representative policy days. [1] example sick time I’m somebody evidence rely if I had been back to why private sure. And their of was that I retired, on had I’m a situation based on his because, otherwise, testimony . . . of the out a portion sector. time, my asking to its at United in the same policy [A]n meaning could, 150—without Notably, if employees, of at those there would be sick leave was is if I took the sick Winkler: “[I]s work Technologies after that graduated the hearings for for one legisla [thirty] albeit some leave prior plan that 200 a limitation on how much absences that a stay Representative Belden. . . . Conn. [23] home for the next three .” and then in Joint person January Standing could I’m years. So, Committee leave could be eEgible out, say, adopting I’E for another 200 Hearings, just be accounted for and one come supra, p. in to child— work on December days say of sick remarks of I’ve of got these to added.) they currently (Emphasis what have.” of using hearings the p. during No comments were made Id., 615. on the imposed be that a limitation should suggest to sick time. employers of how conferrеd basis by redrafted the committee Thereafter, the bill was the Assemb presented in its form to General revised the ly.10 Among changes Committee Bill No. 6151. See the of the new placement made the bill was original to 31-51ll, in and the provision 31-51pp, rather than provide “sick to for modification of the term leave” Representative In of light “accumulated sick leave.” he Winkler’s comment had intended clarifying part: provides 31-51pp of Bill in relevant “Section Committee No. general by adding (c) as follows . . . statutes is amended subsection 31-51qq,inclusive, “(c) (1) It shall a violation of sections 31-51kk any employer deny employee an use accumulated suspend demote, discharge, discharge, or manner leave or threaten attempting against employee using, to exercise the discriminate use, to an of a accumulated sick leave to attend illness son parent employee, adoption daughter, spouse or for the birth or employee. daughter of a son or Any employee “(2) aggrieved file a a violation of this subsection provisions complaint alleging with the Labor Commissioner violation Upon receipt complaint, such the commissioner of this subsection. hearing. hearing, each hold a After the the commissioner shall send shall copy party The commissioner a written of the commissioner’s decision. appropriate relief, including rehiring employee or reinstatement award all previous job, payment wages employee’s and reestablishment of back to the which otherwise would have been benefits to *24 Any employee eligible not occurred. if a violation of subsection had complaint attorney’s prevails who in such a shall awarded reasonable Any by party aggrieved of the commissioner fees and decision costs. appeal Superior in accordance with the the decision Court chapter provisions of 54. Alternatively, any employee “(3) aggrieved a violation of this subsection judicial requirements bring enforcement of the of this a civil action superior judicial subsection, district where the violation in the court for the alleged employee prevails, is to have occurred. If the the court shall award attorney’s reasonable fees and costs. “(4) rights specified in are cumulative The and remedies this subsection any rights in or remedies afforded and nonexclusive are addition other provisions by contract or under other of law.” require
for the employers bill to provide additional sick employees, but, leave to allow rather, employees they to use currently what had leave, it appears that the insertion of the word “accumulated” simply was intended to make Indeed, that clarification. as the majority correctly points out, the debates that Representatives followed the House of and in the Senate do indicate expressed not that legislator support concern about for any type of limitation on employees’ they to use sick rights time had earned on they basis of how earned it. In the absence of statutory indication or the history scheme (c) legislature that intended the word do clarify “accumulated” to other than to anything that it was requiring employers provide leave, and in light of the remedial purpose statute, I would not narrowly construe “accumulated” to exclude only that class of who receive sick leave in a lump sum. Small v. Going Forward, Inc., See Conn. 417, 424, 915A.2d 298 (2007) (noting ambigu ous statute in remedial scheme must be interpreted liberally in of those favor whom legislature intended to I with the benefit). agree majority that “accumulated” simply means “earned” sick leave. respectfully I Accordingly, concur. LISBON,
WHEELABRATOR INC. v. DEPARTMENT OF UTILITY ET PUBLIC CONTROL AL.
(SC 17691) Norcott, Borden, Palmer, Kaplan, Zarella and J. Js.* * justices listing seniority reflects their status as of the date of argument. oral