Connecticut Advisory Opinions September 27, 2005: AGO 2005-025 (September 27, 2005)

AGO 2005-025.

[W]hat protections, if any, does section 2-3a provide to the member? May the member be required to submit bids in accordance with the contractual provision for the periods during which the General Assembly is in session? If he must submit bids in accordance with the contract, but is unable to work the shift which he had bid because of conflicting legislative duties, does section 2-3a permit him to switch, on a daily basis, to a shift which will not conflict with his legislative duties if another employee of the same rank is willing to switch or if there is not an employee of the same rank working that shift, as specified in a memorandum of March 6, 2003 concerning the settlement of a grievance dated February 3, 2003 regarding adjustments to work schedules to perform state legislative duties? Does section 2-3a provide protections above and beyond those described in the memorandum?

As discussed below, we conclude that Conn. Gen. Stat. § 2-3a requires an employer to give an employee who is a member of the legislature a choice of shifts to enable the legislator to perform legislative duties without regard to seniority or other bars that may be contained in a collective bargaining agreement that would otherwise render the employee ineligible for such a choice. Although the law does not necessarily require that the employer provide a choice of shifts on a daily basis, the choice must be given at a time that will reasonably allow the employee-legislator and the employer to adjust their schedules to accommodate both the legislative responsibilities of the employee-legislator and the proper functioning of the employer's operations. Conn. Gen. Stat. § 2-3a requires employers to agree to reasonable accommodations in order to enable employees to serve in the legislature without being penalized in the workplace. Additionally, the employee must be allowed to take unpaid time off as necessary and should be permitted to switch shifts with another willing employee of the same rank if such an employee is available.

Conn. Gen. Stat. § 2-3a provides:

(a) No employer of twenty-five or more persons shall discriminate against, discipline or discharge any employee because such employee (1) is a candidate for the office of representative or senator in the General Assembly, (2) holds such office, (3) is a member-elect to such office, or (4) loses time from work in order to perform duties as such representative, senator or member-elect, provided the failure of such employer to pay wages or salaries for any such time lost shall not be considered a violation of this section. Such employee shall solely determine the activities which constitute duties as such representative, senator or member-elect, as applicable, as provided in this section. No employee under this section shall lose any seniority status which may have accrued to him and, where the function of such employee is performed in work shifts, such employee shall be given a choice of shifts .

(b) Any employer violating the provisions of this section shall reinstate any employee so discriminated against, disciplined or discharged to his full status as an employee as of the date of such violation and shall pay him any wages withheld or diminished retroactive to the date of such violation. In addition, such employee may recover costs and a reasonable attorney's fee in any action brought under this section. Any employee nominated to such office shall, within thirty days following his nomination, give written notice thereof to his employer.

Conn. Gen. Stat. § 2-3a (emphasis added).

The General Assembly passed Conn. Gen. Stat. § 2-3a in 1959 in order to protect its members from disciplinary actions by their employers because of time lost from work in the performance of their legislative duties. As the legislative history of the statute makes clear, the General Assembly was concerned that without such protection, the ability to serve in the legislature would be limited to the wealthy and the self-employed. In this regard, Senator Fleming remarked in submitting a 1991 amendment to the statute that its purpose "is to insure that the middle class in the state has an opportunity to serve in the Legislature." Joint Standing Committee Hearings, Legislative Management, 1991 Sess. 27-28 (March 19, 1991)(remarks of Sen. Fleming). Similarly, Senator Sullivan noted in connection with a 1997 amendment that "it is increasingly difficult for members of the real world where there is work to find time to come and serve in government at all levels, and particularly in the legislature." 40 Conn. S. Proc., pt. 5, 1997 Sess. 1465 (April 30, 1997)(remarks of Sen. Sullivan).

Although the legislature wanted working people to be able to serve in the legislature without being penalized by their employers, it was also concerned about imposing too great a burden on employers. Accordingly, the statute does not apply to employers with fewer than 25 employees, who have less ability to cover employee absences, and does not require the employer to pay an employee for time lost due to the performance of legislative duties. See 8 Conn. H. R. Proc., pt. 6, 1958 Sess. 2252 (May 5, 1959)("The words 'twenty-five or more persons' were deliberately put in there. We considered the affect [sic] of some shop keeper with one person whose man left for the General Assembly. . . . It would become a hardship on the small employer")(remarks of Rep. Zanobi).

In 1971, in order to make "available to wage earners in our State a real possibility of membership in this General Assembly," 14 Conn. H. R. Proc., pt. 5, 1971 Sess. 2485 (May 11, 1971)(remarks of Sen. Donnelly), the legislature added the requirement that "where the function of such employee is performed in work shifts, such employee shall be given a choice of shifts." 1971 Conn. Pub. Acts No. 71-671. This amendment is the focus of your questions. In particular, you have questioned whether the amendment permits an employee to choose his shift on a daily basis when the collective bargaining agreement of which he is a part requires him to choose his shift for four weeks at a time.

In analyzing a statute, the "fundamental objective is to ascertain and give effect to the apparent intent of the legislature." Manifold v. Ragaglia , 272 Conn. 410, 419 (2004). In searching for the legislative intent, a court looks first "to the text of the statute itself and its relationship to other statutes." Conn. Gen. Stat. § 1-2z. If the text of the statute is not clear and unambiguous, it is appropriate to look to the statute's "legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Jagger v. Mohawk Mountain Ski Area, Inc ., 269 Conn. 672, 679 (2004).

In stating that an employee "shall be given a choice of shifts," Conn. Gen. Stat. § 2-3a does not specify how frequently that choice must be given or how conflicting provisions of a collective bargaining agreement should be accommodated. The legislative history of the provision is equally uninformative and contains no discussion of either point.

Although the language and legislative history of Conn. Gen. Stat. § 2-3a do not directly answer the specific question that you pose, the legislative history indicates that the legislature was attempting to achieve a balance between protecting employees and not overburdening employers. See , e.g ., 8 Conn. H. R. Proc., pt. 6, 1958 Sess. 2252 (May 5, 1959)(extending statute to employers of less than 25 employees would become a hardship on the small employer); 8 Conn. S. Proc., pt. 5, 1959 Sess. 2665 (May 12, 1959) ("this is a compromise bill . . . The compromise was that it covers employers of twenty-five or more and it provides for notifying the employer of their nomination within thirty days")(remarks of Sen. Miller).

To construe the requirement that employees "be given a choice of shifts" to mean that an employee can change his shift whenever he desires, even on a daily basis, would potentially be extremely disruptive to employers, possibly requiring other employees' schedules to be changed to accommodate the day-to-day needs of the employee-legislator and injecting considerable uncertainty into the employer's scheduling process. Such an interpretation would fly in the face of well-established rules of statutory construction, which require that if multiple constructions of a statute are possible, we "adopt the more reasonable construction," Pollio v. Planning Commission , 232 Conn. 44, 55 (1995), that "makes the statute effective and workable." Barrett v. Montesano , 269 Conn. 787, 797 (2004). The more reasonable construction of Conn. Gen. Stat. § 2-3a is not that an employee can change his shift whenever he desires, but rather that, in offering shifts to employees, the employer must give the employee-legislator a choice of shifts, including shifts for which he would otherwise be ineligible due to lack of seniority or due to other provisions that may be contained in a collective bargaining agreement. This choice must be given at a time that will reasonably allow the employee-legislator and the employer to adjust their schedules to accommodate both the legislative responsibilities of the employee-legislator and the proper functioning of the employer's operations.

Although such a construction may conflict with the provisions of an employee's collective bargaining agreement, it is the general rule that state "statutes cannot be preempted by a collective bargaining agreement or any contract between parties." Kreidler v. Bic Pen Corp ., 16 Conn. App. 437, 442 (1988). "There is a presumption that parties contract in the light of existing statutes." Id . "Statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention." Id .; State College AAUP v. State Board of Labor Relations , 197 Conn. 91, 98 (1985). "Therefore, the terms of statutes must necessarily prevail over inconsistent provisions in collective bargaining agreements." Kreidler , 16 Conn. App. at 442. Even though Conn. Gen. Stat.§ 2-3a does override a collective bargaining agreement in respect to employee-legislators, it was the legislature's intent to achieve a balance of employee-legislator and employer interests concerning the timing for choosing shifts.

When the General Assembly amended Conn. Gen. Stat. § 2-3a to permit employee/legislators to have a choice of shifts, the principles set forth above would suggest that the statutory provisions of § 2-3a should prevail over any conflicting provisions of the collective bargaining agreement. Before reaching this conclusion, however, it is also necessary to consider other relevant statutes. This is "[b]ecause the legislature is always presumed to have created a harmonious and consistent body of law." Pollio v. Planning Commission , 232 Conn. 44, 53 (1995). Therefore "the proper construction of any statute must take into account the mandates of related statutes governing the same general subject matter." Id .

In the present case, because Representative Witkos is part of a municipal employee collective bargaining agreement, it is necessary to consider the Municipal Employee Relations Act ("MERA"), Conn. Gen. Stat. § 7-467 et seq. Of particular note is Conn. Gen. Stat. § 7-474(f), which concerns situations in which a municipal employee collective bargaining agreement conflicts with other state or local laws. Section 7-474(f) states, in pertinent part, that:

Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of section 7-467 to 7-477, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any charter, special act, ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission, or any general statute directly regulating the hours of work of policemen or firemen , or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees' retirement system or under the Policemen and Firemen Survivor's Benefit Fund, the terms of such agreement shall prevail .

Conn. Gen. Stat. § 7-474(f)(emphasis added). Under this statute, the provisions of a municipal employee collective bargaining agreement will supersede conflicting state statutes in only two specific situations: when the conflicting statute (1) "directly regulat[es] the hours of work of policemen or firemen;" or (2) "provid[es] for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees' retirement system or under the Policemen and Firemen Survivor's Benefit Fund." Id . Because Conn. Gen. Stat. § 2-3a does not fall within either of these categories, it prevails over the terms of Rep. Witkos' collective bargaining agreement.(fn1)

Accordingly, we conclude that, in the specific circumstance that you present, the requirement in Conn. Gen. Stat. § 2-3a that legislative members and candidates be given a choice of shifts supersedes any conflicting terms of Rep. Witkos' collective bargaining agreement and requires his employer to give him his choice of shifts at a time that will reasonably allow Representative Witkos and his employer to adjust their schedules to accommodate both the legislative responsibilities of Representative Witkos and the proper functioning of his employer's operations. Although Representative Witkos' employer assigns shifts for all employees in four week blocks, 56 days in advance, according to a collective bargaining agreement, that collective bargaining agreement is superseded by Conn. Gen. Stat. § 2-3a in the assignment of shifts to Representative Witkos. The assumption is reasonable that legislative meetings and hearings will be scheduled with one or two weeks notice to legislators and other legislative business may require attention and attendance with little or no advance notice. Equally reasonable is the assumption that Representative Witkos' employer can properly operate by accommodating the needs of a single employee-legislator to choose his shifts in one or two week blocks, if informed one or two weeks in advance.(fn2) Conn. Gen. Stat. § 2-3a requires that an employer make reasonable accommodations for an employee-legislator(fn3) in order to better enable employees to serve the State of Connecticut and its citizens without being penalized in the workplace for doing so.

If Representative Witkos later finds that he is unable to work the shift he had chosen on a given day due to legislative commitments, and if a reasonable accommodation can not be worked out, Conn. Gen. Stat. § 2-3a(4) requires that his employer allow him unpaid time off in order to fulfill his legislative responsibilities. If another employee of the same rank is willing to switch shifts with Representative Witkos, such a switch should be permitted because it provides a choice of shifts that is consistent with the legislative intent of Conn. Gen. Stat. § 2-3a to enable employees to serve in the legislature without being penalized in the workplace, while at the same time minimizing the burden on employers.

I trust that this letter answers your inquiry. Please do not hesitate to contact me again if I may be of further assistance.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Jane R. Rosenberg

Assistant Attorney General

FN1. Although, in the present case, Conn. Gen. Stat. § 2-3a has an effect on the hours of a policeman, it does not "directly regulat[e]" those hours.

FN2. Extrordinary circumstances, such as a special session, may require some additional flexibility.

FN3. On March 6, 2003 Representative Witkos and his employer entered into an agreement providing a mutually acceptable accommodation. We understand that this agreement has expired. The March 6, 2003 agreement provided:

1. As per contract, you will make an attempt to swap shifts with another sergeant.

2. If no other sergeant is willing to swap shifts, you will be allowed to move to a contiguous shift if there is no sergeant working that shift or you will be allowed to work a special shift (i.e. 11:00 a.m. to 7:00 p.m. or 7:00 p.m. to 3:00 a.m.). Schedule adjustments must not breach the minimum staffing requirements of the contract and must provide sergeant supervision of patrol shifts. Any adjustment not meeting these criteria will be approved in the sole discretion of management.

3. When legislative duties so require, you may work four hours of a scheduled shift.

4. Under all circumstances, if time off to attend to legislative duties requires the Town to pay overtime to maintain minimum staffing, you will be required to use vacation leave or compensatory time off (per contract rules governing use of compensatory time) or take unpaid leave as required by statute.

Memorandum from Frederic Turkington, Jr., Chief Administrative Officer, Town of Canton, to Sgt. Kevin Witkos, dated March 6, 2003.