Opinion
No. CV04 4002298-S
March 10, 2006
MEMORANDUM OF DECISION
I. Background
In this matter, the Southern New England Telephone Company (SNET) appeals a declaratory ruling by the Connecticut Department of Labor (DOL), dated September 21, 2004, concerning the application of the Family Medical Leave Act (FMLA) to its collectively bargained sick leave benefit. SNET's amended appeal, dated March 19, 2005 is made to the superior court pursuant to the provisions of General Statutes § 4-183 (UAPA) claiming that the DOL ruling is contrary to law and, in addition, that it is arbitrary and capricious and clearly erroneous.
General Statutes § 4-183(j) provides, as follows: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings . . . For purposes of this section, a remand is a final judgment."
The specific language used by SNET in its amended appeal is that the DOL decision was "erroneous, incorrect, in violation of statutory provisions, contrary to law, and based upon a misapplication and/or misinterpretation of law."
In 2003, the General Assembly enacted legislation amending the FMLA to include the right of employees to use two weeks of "accumulated sick leave" for the purposes set forth in the family leave act. In 2001, prior to the effective date of this new law, SNET and its employees had entered into a collective bargaining agreement providing for a graduated sick leave policy, based upon longevity of employment. The 2001 agreement provided no right to sick leave for full-time employees during their first year of employment. The agreement further provided for five days of sick leave at the commencement of their second year of employment and, finally, ten days of sick leave at the commencement of their third year of employment and for each year of employment thereafter. Any sick leave unused at the end of each year was forfeited, and did not "roll over" to the next year. Subsequent to the enactment of Public Act § 03-213, the parties entered into a renegotiated collective bargaining agreement, the terms of which are not before the court.
Effective October 1, 2003, § 1 of Public Act 03-213 amended § 31-51pp of the general statutes by adding the following new language "(c)(1) It shall be a violation of § 31-51kk to 31-51qq, inclusive, for any employer to deny an employee the right to use up to two weeks of accumulated sick leave or to discharge, threaten to discharge, demote, suspend or in any manner discriminate against an employee for using, or attempting to exercise the right to use, up to two weeks of accumulated sick leave to attend to a serious health condition of a son or daughter, spouse or parent of the employee, or for the birth or adoption of a son or daughter of the employee. For purposes of this subsection, "sick leave" means an absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness, but does not include absences from work for which compensation is provided through an employer's plan, including, but not limited to, a short or long-term disability plan, whether or not such plan is self-insured."
The DOL's declaratory ruling in this case responded to three questions presented by SNET. SNET questioned first whether the amended FMLA applies to a sick leave policy where unused sick days are not accumulated little by little, are not carried over from year to year and are therefore forfeited at the end of each year. Second, SNET questioned whether the act applies to a sick leave policy that provides a limited pay protection benefit for sick days, but which does not create an entitlement to take a particular number of sick days off per year. And third, SNET questioned whether the act prevails over an existing collective bargaining agreement that was in effect prior to October 1, 2003, the effective date of the amended FMLA, Public Acts No. § 03-213.
In its declaratory ruling, the DOL concluded that the FMLA, as amended by Public Act § 03-213, applied under all of the circumstances assumed in the questions posed by SNET.
II. Discussion A. The Proper Standard of Review
The parties agree that the DOL's interpretation of the amended FMLA, General Statutes § 31-51 pp., is a question of first impression before the court. It is well established that, "when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 274 Conn. 119, 127, 874 A.2d 776 (2005). Accordingly, the court will review the claims of law in this case de novo.
Notwithstanding the legal questions presented in this appeal, the DOL and Local 1298 Communications Workers of America each argue that the administrative findings in this case are findings of fact to be accorded proper deference in an administrative appeal; namely, that the questions posed by SNET constituted "accumulated sick leave" under the FMLA. They argue that the application of the FMLA to the collective bargaining agreement involves a determination of fact, and that the contract provides a benefit that involves "accumulated sick leave." The court disagrees.
In order to address this question, the court acknowledges the well settled principles of contract interpretation. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract." (Internal quotation marks omitted.) Bentz v. Halsey, 54 Conn.App. 609, 616, 736 A.2d 931 (1999). On the other hand, "[w]hen an ambiguous term is at issue, the trial court can examine the extrinsic evidence to resolve the question of the parties' intent." (Internal quotation marks omitted.) Larson v. Jacobson, 38 Conn.App. 186, 190, 659 A.2d 753 (1995). "Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion." Paul Revere Life Ins. Co. v. Pastena, 52 Conn.App. 318, 322, 725 A.2d 996, cert. denied, 248 Conn. 917, 734 A.2d 567 (1999), citing Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998).
The present issues arise from an appeal of a declaratory ruling by the DOL. The underlying questions posed by SNET involved the proper interpretation of a new state law and did not involve an analysis of or assessment of facts. Although the interpretation of a contract can be a question of fact, as noted above, the DOL made no specific findings of fact in this case. The DOL made no finding that the contractual terms of the collective bargaining agreement were ambiguous. It neither sought extrinsic evidence of the intent of the parties, nor did it make any specific findings concerning the intent of the parties. Instead, the DOL simply interpreted the SNET contract for sick leave to be "accumulated sick leave" under the FMLA. Therefore, the findings of the DOL are not factual findings for the purposes of an administrative appeal. Instead, for the purpose of this appeal, they are to be treated as conclusions of law.
B. Statutory Interpretation
The fundamental question presented in this appeal is whether the SNET "sick leave" benefit is " accumulated," as contemplated by the amended FMLA. This issue raises a matter of law involving the proper interpretation of statutory language.
Under the provisions of General Statutes § 1-1(a), statutory words are to be construed according to their ordinary meanings. The particular word in question in this case is the word "accumulated" sick time. Although General Statutes § 31-51pp defines the term "sick leave," the word "accumulated" is undefined by the statute. Under the well established rules of statutory construction, statutory words are not to be treated as superfluous. Szewczyk v. Dept. of Social Services, 275 Conn. 464, 684-85, 881 A.2d 259 (2005). In addition, pursuant to General Statutes § 1-2z, the court is required to interpret statutory language according to its "plain meaning."
General Statutes § 1-1(a) provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." This statute is informally known as the "plain meaning statute."
"In order to ascertain the plain meaning of a word, it is appropriate to look to the dictionary definition." Washington v. Meachum, 238 Conn. 692, 714 n. 14, 680 A.2d 262 (1996). Accumulate is defined to mean "to gather or pile up esp. little by little to increase gradually in quantity or number." Merriam Webster's Collegiate Dictionary, Tenth Edition, at 8 (1997). It may similarly mean "assemble," "increase," "join," "procure" and "store up." Roget's International Thesaurus (4th Ed.) at 796. In addition, the word accumulation is defined to mean "1: something that has accumulated or has been accumulated 2: the action or process of accumulation: the state or being or having accumulated 3: increase or growth by addition esp. when continuous or repeated . . ." Merriam Webster's Collegiate Dictionary, Tenth Edition, at 8 (1997). It may similarly mean "acquisition," "assemblage," "increase," and "store." Roget's International Thesaurus (4th Ed.) at 796.
Although the word "accumulated" is not specifically defined in any dictionary that has been identified by the court, the court notes that this is the simple past tense form of the verb accumulate.
The DOL argues that the FMLA, as amended by P.A. § 03-213, is a remedial statute which should therefore be liberally construed by the court. SNET counters that the plain meaning rule supersedes and curtails this method of statutory analysis. The court agrees with the DOL. General Statute § 31-51pp(c)(2) provides a remedy for employees aggrieved by a violation of the substantive right to use up to two weeks of "accumulated sick time," as specifically provided in § 31-51pp(c)(1). Therefore, General Statute § 31-51pp(c) is a remedial statute.
The longstanding rule of statutory construction in Connecticut is that a remedial statute is to be liberally construed. See Clifford v. Cronin, 97 Conn. 434, 438, 117 A. 489 (1922); Ackerman v. Hughes, 11 Conn.Sup. 133, 135-36 (1942); Mytych v. May Dept Stores Co., 260 Conn. 152, 160-61, 793 A.2d 1068 (2002); Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463, 704 A.2d 222 (1997); Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696, 651 A.2d 1286 (1995). Therefore, where remedial statutes are concerned, the court "must resolve statutory ambiguities . . . in a manner that will further the remedial purpose of the act." (Internal quotation marks omitted.) Mello v. Big Y Foods, Inc., 265 Conn. 21, 26, 826 A.2d 1117 (2003). Since the enactment of the "plain meaning rule" in 2003, remedial statutes have continued to be construed liberally by our courts. See Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 881 A.2d 139, (2005), also see Rutolo v. Tietjen, 93 Conn.App. 432 (2006). In addition, "[w]hen a dispute arises regarding application of [a remedial] statute . . . the burden rests on the party seeking to deny the statutory protection." Rutolo v. Tietjen, supra, 93 Conn.App. at 439.
Since the enactment of the plain meaning statute in 2003, our courts continue to employ traditional methods of statutory construction, including the liberal construction of remedial statutes. However, the recently enacted plain meaning statute must be given consideration in the interpretation of any statutory language. Therefore, in interpreting statutory language, the court should go no further than the well-established meanings of particular words and phrases. English words and phrases, however, may have multiple denotative meanings, depending upon their context. "Commonly approved usage," as required by General Statutes § 1-1(a), and the "plain meaning rule" should not, therefore, demark the line between primary and well established secondary meanings of a statutory word or phrase. Moreover, the plain meaning rule was not intended to supplant all court-established methods of statutory interpretation. Instead, the plain meaning rule was used by the courts of this state for many years prior to the enactment of the plain meaning statute. Therefore, the legislation was intended to reestablish the plain meaning rule, and to codify the threshold for permitting the use of extratextual evidence of legislative intent, among other existing rules used for the purpose of statutory interpretation.
Our courts have also continued to use the principle of strict construction of penal statutes in cases decided subsequent to the enactment of General Statutes § 1-2z. See State v. Peeler, 271 Conn. 338, 857 A.2d 808 (2004).
General Statutes § 1-2z.
During the Senate debate on An Act Concerning Statutory Interpretation, Senator McKinney made the following statement concerning the effect of the legislation on the Supreme Court case of State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003): "And if you read the dissent and in particular, footnote 12, it states, and I'm quoting, `I do not intend to deemphasize my fundamental disagreement with the majority's rejection of the plain meaning rule' . . . The majority does away with the plain meaning rule and the dissents [sic] from that rejection. Let no Superior Court judge, Appellate Court judge or Supreme Court judge, should they look at this legislative intent and understand the passage of this bill to mean other than our rejection of the majority's rejection of the plain meaning rule." 46 S. Proc., Pt. 13, 2003 Sess., p. 3213.
SNET generally argues that the word "accumulated" sick time does not include all sick time benefits available to employees. The court agrees. The statute itself defines accumulated sick time to exclude unpaid sick leave and other leave available to employees, including, but not limited to disability plans. In addition, the word "accumulated," by its own clear meaning, excludes the use of a future sick leave benefit, not yet available to or accumulated by an employee.
C. Sick Leave Not Carried Over From Year To Year CT Page 4839
SNET's first specific argument is that its sick leave policy is not within the meaning of the FMLA, as amended, because it does not allow for sick leave to be accumulated little by little, nor does it allow for sick leave to be carried over from year to year. The DOL concluded that the sick leave benefit provided under the SNET collective bargaining agreement is "accumulated" sick leave because it "provides for a progressive increase in available paid sick leave which is tied to the employee's seniority . . ." Connecticut Department of Labor Declaratory Ruling, dated September 21, 2004, at p. 4. The statute provides in relevant part that: "It shall be a violation of § 31-51kk to 31-51qq, inclusive, for any employer to deny an employee the right to use up to two weeks of accumulated sick leave General Statutes § 31-51 pp(c)(1). Pursuant to General Statutes § 1-2z, the court must consider first the text of the relevant statutory provision to determine whether it is ambiguous.Although the court agrees that SNET's interpretation of the word "accumulated" is the better and primary use of the term, the court finds that the DOL's reading presents a plausible interpretation of the salient statutory language within the applicable principles of statutory construction. Where there are two plausible meanings of statutory language, there is sufficient ambiguity for the court to turn to extratextual evidence for the purpose of determining its intended meaning. See General Statutes § 1-2z.
The court, however, notes that it was error for the DOL to consider extratextual evidence of the meaning of the amended FMLA, to the extent that it did so without first finding ambiguity in the relevant statutory language.
In seeking extratextual evidence of the intended meaning of the words "accumulated sick leave," as used in Public Act § 03-213, the court finds elucidating the comments of Representatives Belden and Winkler at a public hearing on the proposed language of the committee bill before the Joint Committee on Labor and Public Employees. Representative Belden stated his concern that there should be a limit on the amount of sick time made available under the proposal, as follows: ". . . I know when I was . . . at United Technologies, that their sick time policy was that I could, after 30 some years of service, and it grew as you had time, my sick leave was probably about 200 and some work days. And their policy is if I took 200 work days this year sick, at January 1st if I had been back to work for one day I had 200 more sick days . . . So I'll just come back to work on December 23rd and then in January I'm eligible for another 200 days of sick leave . . ." In response to this concern, Representative Winkler, as the proponent of the bill at the hearing, stated "Excuse me, that's not what I'm advocating . . . What I had said was a two week . . . period of time to be able to be used if a person has that kind of sick time." Representative Winkler further stated that the bill was not intended to grant an additional sick leave benefit to employees; instead, the intent behind the bill was to prevent the abuse of sick leave by employees with an existing sick leave policy.
Committee Bill 6151 included the words "accumulated sick leave" but, at the time of the hearing, the proposed language of the bill had no time limit regarding the number of sick days that could be used by employees.
Conn. Joint Standing Committee Hearings, Labor Public Employees, Pt. 2, 2003 Sess., pp. 614-15.
The example used by Representative Belden is elucidating because his understanding of his employer's sick leave benefit was that employees had a certain number of sick days available to use per year, based upon seniority. He gave no indication in his example that sick days could or would be carried over from year to year; instead, each employee would be allotted an increasing annual allotment of sick days, based upon seniority. Although Representative Belden's sick leave benefit was enormously greater than the SNET benefit, it is strikingly similar in its core principle; namely, that employees are annually allowed a maximum number of sick days, based upon seniority.
Even if there were no legislative history to resolve the ambiguity found in the use of the term "accumulated" sick leave, the court must nonetheless "resolve statutory ambiguities . . . in a manner that will further the remedial purpose of the act." (Internal quotation marks omitted.) Mello v. Big Y Foods, Inc., supra, 265 Conn. 26. Therefore, the court agrees with the DOL's conclusion that SNET's sick leave policy is within the intended meaning of the words "accumulated sick leave," as provided under the amended FMLA.
D. Pay Protection Plans With No Entitlement To Sick Leave
SNET's second argument is that its sick leave policy does not provide an entitlement for employees to use the applicable number of sick days provided under their sick leave policy. Instead, SNET claims that its sick leave agreement is a "pay protection only" benefit, conditioned upon numerous factors, including volume of work in the employee's department, prior duration and history of absences, information indicating that the employee was able to work and other factors that could lead to discipline of an employee, even for use of less than the number of sick days provided to them under the sick leave policy. In other words, SNET claims that its sick leave policy did not provide a "bank of time" or an allotment, guarantee or entitlement to a particular number of days of sick leave in a given year.
At the outset, the court concludes that the sick time benefit provided in the SNET agreement is "sick leave." As defined in the amended FMLA, "sick leave" is "[a]n absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness § 31-51pp(c)(1). Based upon this unambiguous language, the court finds that SNET's "pay protection" sick leave policy falls within the clear meaning of the term "sick leave," as defined by the amended FMLA.
The remaining question is whether SNET's pay protection sick leave policy is one that is "accumulated," within the meaning of the statute. The court finds that the use of the term "accumulated" is not inconsistent with SNET's sick leave benefit, which it interprets to include several well reasoned conditions relating to its application to particular employees. The fact that an employee is not "entitled" to use accumulated sick leave, and is subject to employer oversight of its proper use, does not logically preclude the application of the amended FMLA. To hold otherwise would defeat the remedial purpose of the FMLA, and permit employers to escape its requirements by the establishment of ostensibly reasonable conditions for the use of sick leave by employees. The court therefore finds no error in the DOL's declaratory ruling on SNET's second question.
Although Representative Belden's comments, quoted supra, implied that the sick leave policy of his employer was unconditional, and therefore an entitlement, the focus of his concern was the duration of the sick leave benefit made available to employees under the proposal.
E. Application Of Amended FMLA To An Existing Contract
SNET argues that the amended FMLA may not be lawfully applied to an existing contract because to do so would violate the contract clause of the United States Constitution. Although SNET acknowledges that new laws involving the health and safety of employees are appropriately applied to existing contracts for reasons of public policy, SNET contends that a new law intended to expand an employee benefit may not be incorporated into an existing collective bargaining agreement. The court agrees with SNET's conclusion, but only for the specific reasons set forth herein.
The constitution of the United States, article one, § 10, provides in relevant part: "No State shall . . . pass any . . . Law Impairing the Obligation of Contracts . . ." Although the language of the contract clause speaks in absolute terms, "literalism in the construction of the . . . clause . . . would make it destructive of the public interest by depriving the State of its prerogative of self-protection . . . The constitutional prohibition against the impairment of contractual obligations, therefore, must be accommodated to the state's interest in safeguarding the welfare of its citizens." (Internal citations omitted; internal quotation marks omitted.) Serrano v. Aetna Ins. Co., 233 Conn. 437, 446, 664 A.2d 279 (1995).
In Serrano, our Supreme Court established a test to determine whether a legislative enactment violates the contract clause. The court "must first ask whether the change in [the] law has operated as a substantial impairment of a contractual relationship . . . This inquiry has three components: whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial . . . If upon application of this test it appears that the challenged legislation substantially impairs existing contract rights, the enactment may nevertheless withstand constitutional scrutiny if it serves a significant and legitimate public purpose . . ." (Citations omitted; internal quotation marks omitted.) Serrano v. Aetna Ins. Co., supra, 233 Conn. 447. The court further noted that "[s]everal factors are to be considered in determining the degree to which the challenged enactment operates as an impairment of the parties' contractual relationship. These include the severity of the impairment, the extent to which it frustrates a party's reasonable contractual expectations and the extent to which the subject matter of the impairment has been regulated in the past." (Internal citations omitted; internal quotation marks omitted.) Id., 448.
In its declaratory ruling, the DOL considered the SNET contract to be superseded by the amended FMLA. If the legislature intended that the amended FMLA was to be applied to existing contracts, the court might very well conclude in this case that it substantially impaired the SNET collective bargaining agreement. Nonetheless, in applying contract clause analysis to the FMLA, the court could reasonably find that the act serves a significant and legitimate public purpose; namely, allowing employees in Connecticut the economic freedom and opportunity to protect the health and welfare of members of their families. Moreover, family leave legislation originated in the state of Connecticut with a benefit first provided to state employees in the mid-1980s, followed by a similar benefit for employees of private concerns in 1989. Therefore, employers in Connecticut have long been regulated in this particular area of employment law. It is therefore reasonable and logical for a court to find that the state's police power could be legislatively exercised in this area of the law in a manner that legitimately outweighs the constitutional constraints of the contract clause. The question here is whether the legislature exercised its authority to do so in this case.
No. 87-291 of the 1987 Public Acts (PA. 87-291).
No. 89-382 of the 1989 Public Acts (PA. 89-382). Thereafter, the Connecticut legislation became a model for federal FMLA benefits.
The court finds the following reasoning of Justice Stevens to be instructive on this point: "Of course, the finding of a significant and legitimate public purpose is not, by itself, enough to justify the impairment of contractual obligations. A court must also satisfy itself that the legislature's adjustment of `the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation's adoption . . . But, we have repeatedly held that unless the State is itself a contracting party, courts should properly defer to legislative judgment as to the necessity and reasonableness of a particular measure . . . Thus, in the landmark case of Home Building Loan Ass'n. v. Blaisdell, the Court upheld Minnesota's statutory moratorium against home foreclosures, in part, because the legislation was addressed to the legitimate end of protecting "a basic interest of society, and not just for the advantage of some favored group . . . As Justice Stewart explained: `[I]t is to be accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States. It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals." (Internal citations and quotation marks omitted.) Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S. 470, 503-05, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987).
In support of its declaratory ruling, the DOL cited language in the act, now codified at General Statutes § 31-51pp(c)(3), as follows: "The rights and remedies specified in this subsection are cumulative and nonexclusive and are in addition to any other rights or remedies afforded by contract or under other provisions of law." Id. Although it is clear from this language that the substantive provisions of this law are an affirmative legal right and are to be incorporated into contracts; the issue remains: do the words "in addition to any other rights or remedies afforded by contract" intentionally incorporate the substantive provisions of the act into, and arguably impair, existing contracts and therefore have the effect of retroactive application? The court finds this statutory language to be insufficient to express a specific legislative intent to apply the new and substantive provisions of the amended FMLA to an existing contract.
Serrano v. Aetna offers an opportunity to review a contrasting scenario in which the General Assembly enacted legislation that was specifically intended to apply to existing contracts. In that case, the Supreme Court considered the constitutionality of section three of Public Act 93-77, which expressly expanded from two to three years the procedural right to bring an action under an existing uninsured or underinsured motor vehicle policy. The language reviewed in Serrano was clear and unmistakable and was intended to have a retroactive effect on existing contracts.
"No uninsured or underinsured motorist claim or action pending on December 5, 1992, or brought after said date and prior to the effective date of this act, in which a settlement has not been reached or a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted to arbitration or such action shall be commenced to a period of time less than that allowed under § 38a-336 of the general statutes, as amended by section 2 of this act." Public Acts 1993, No. 93-77, An Act Concerning Uninsured and Underinsured Motorists Insurance Coverage. Because § 3 of P.A. 93-77 is deemed to be special in nature, it has not been codified.
The court finds the creation of a right to use two weeks of sick leave for the purposes of the FMLA to be a substantive change in the law. It is axiomatic that "[s]ubstantive changes in the law are presumptively not applied retroactively absent any clearly expressed legislative intent to the contrary . . ." Poirier v. Zoning Bd. of Appeals of Town of Wilton, 75 Conn.App. 289, 293-94, 815 A.2d 716 (2003). For an act of the legislature to be incorporated into an existing contract by operation of law, it would be, in effect, a retroactive application of the new law. See Giaimo v. City of New Haven, 257 Conn. 481, 778 A.2d 33 (2001); Cece v. Felix Indus., Inc., 248 Conn. 457, 728 A.2d 505 (1999); Central Bank v. Hickey, CT Page 4844 238 Conn. 778, 680 A.2d 298 (1996); Serrano v. Aetna Ins. Co., 233 Conn. 437, 664 A.2d 279 (1995); Kulisch v. Aetna Casualty Surety Co., 36 Conn.App. 141, 648 A.2d 890 (1994). In this case, the court finds that there was no clearly expressed legislative intent to apply the amended FMLA to existing contracts.
The general thrust of the language cited by the DOL from the amended FMLA is to ensure that the two-week sick leave benefit provided in the legislation would be added to any other family leave rights an employee may have, whether by state law, federal law or by contract. In other words, these various rights are to be "cumulative and nonexclusive." Although it is possible that the choice of word "contract" could be interpreted to mean "existing contract," this meaning is not clearly and specifically expressed. Given the constitutional weight of the contracts clause question in this matter, the specific requirements of contracts clause analysis must prevail over an alternative approach involving the liberal interpretation of a remedial statute resulting from any ambiguity that may exist in the language of the statute. Thus, the additional benefit provided in the amended FMLA does not apply to the SNET collective bargaining agreement that was formed prior to October 1, 2003, the effective date of the act.
III. Conclusion
The DOL declaratory rulings on the first and second questions presented are affirmed, except to the extent that there was error in seeking extratextual evidence of legislative intent absent a finding of ambiguity in the language of the statute. However, the court finds the declaratory ruling on question three to be contrary to the law.