Attorney General: Senator William A. DiBella, Connecticut Senate, 1996-020 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 18, 1996

Senator William A. DiBella
Senate Minority Leader
Connecticut Senate
Legislative Office Building
Hartford, CT 06106

Dear Senator DiBella:

You have inquired as to the proper interpretation of Conn. Gen. Stat. 2-3a, which prohibits employers from discriminating against employees who are members of the general assembly. Specifically, you ask what is included in the term "duties of such office" as used in the statute, whether the "time off" provision contained in the statute applies to campaigning, and who determines the scope of a legislator's duties. In order to respond to your questions, it is necessary to examine briefly the language and history of 2-3a.

Section 2-3a provides:

Employer not to discriminate against candidates for or members of the general assembly.

No employer of twenty-five or more persons shall discriminate against, discipline or discharge any employee because such employee is a candidate for the office of representative or senator in the general assembly, or because he is elected to such office, or because he loses time from work in order to perform the duties of such office, 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. No such employee 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. 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.

This provision, first passed in 1959, was designed to protect members of the General Assembly from disciplinary action by their employers because of time lost in the performance of "the duties of such office." Both the language of the statute and the legislative history that accompanied its passage make clear that an employer may not penalize an employee because he loses time from work in order to fulfill his duties as a state legislator, although he is not obligated to pay him for the lost time. Your first question concerns the scope of a legislator's duties such that they fall within the protection of the statute.

The term "duties of such office" is not defined in the statute, although it is clear that the legislature could define the term if it chose to do so. In the absence of a statutory definition, we may look to the common usage of the terms and the intent of the legislature in enacting the provision, as gleaned from the legislative history surrounding the statute's passage and subsequent amendments.

It appears from the legislative history that the legislature was concerned with enabling individuals of all employment categories to serve in the legislature, rather than restricting such service to the wealthy or self- employed. As Sen. Fleming remarked upon submitting an amendment to the statute in 1991, the purpose of the statute "is to insure that the middle class in the state has an opportunity to serve in the Legislature." Conn. Joint Committee on Legislative Management Hearings, 1991 Sess., pp. 28-29. At the same time, the legislature was concerned about imposing too great a burden on employers, who would be required to provide employees with time off, albeit without pay, for the discharge of legislative duties. In view of both of these concerns, it appears that the statute requires covered employers1 to permit an employee who is a member of the legislature to take time off without penalty to perform all duties reasonably necessary to carry out the functions of his office. This would include attending legislative sessions, committee activities, hearings, and caucuses directly related to the performance of the legislative function, and, depending on the particular circumstances involved, could also include other matters commonly performed by legislators in connection with their legislative function, such as meetings with other public officials or constituents to discuss pending or proposed legislation. As you note in your letter, the employer is protected against abuse by the statute's provision that the employer need not pay for time lost.

You also ask who has the authority to make the determination of whether a particular function falls within the scope of the term "legislative duties" in the event a dispute arises.2 We believe that the employer has no authority to determine what constitutes a legislative duty. If the responsibility for making this interpretation lay with each employer, then the resulting interpretations would likely be inconsistent, with some employers giving an unduly narrow reading to the terms, and others giving a broader reading. The resulting chaos would be unworkable, providing little or no protection to those legislators whose employers took a restrictive approach, and could not have been what the legislature intended in passing the statute. In fact, it was to address this very situation -- where some employers allowed their employees great leeway to attend to legislative duties, while others refused to allow them even to attend a session to vote on legislation -- that prompted passage of the statute in the first place. Conn. Joint Committee on the Judiciary, 1959 Sess., pp. 524-525, 532-533.

Rather, we believe that the individual legislator has the authority and responsibility to make this determination in the first instance. As noted above, Section 2-3a provides a strong disincentive for any legislator to abuse the rights created in the statute by providing that, while an employer must permit his employee to take time off to attend to his legislative duties, he need not pay him for any time so lost. Therefore, the employee would have no incentive to exaggerate the scope of his legislative duties in order to increase his authorized time off because he would also be losing income for that time.

Where there is a dispute between the employer and the employee over the reasonableness of the employee's interpretation, Section 2-3a provides that an employee- legislator may bring an action against the employer, and recover lost wages, costs and attorney fees if it is determined that the legislator's rights under the statute have been violated.

Consequently, in the absence of a statutory definition or procedure to determine the scope of legislative duties, it is the responsibility of the legislator in the first instance to determine which functions are encompassed within the phrase "duties of such office," and if there is a dispute, that determination may ultimately have to be made by a court.

Finally, you ask whether 2-3a applies to require employers to provide time off for campaign duties. We believe that it does not. Although the statute provides that no covered employer shall "discriminate against, discipline or discharge" any employee simply because he is a candidate for legislative office, it expressly limits the time off provision to those circumstances involving the performance of legislative, not campaign, duties.

We hope this responds to your questions.

Very truly yours,

Richard Blumenthal

Attorney General

Carolyn K. Querijero

Assistant Attorney General


1 Employers included within the scope of the statute are those employing twenty- five or more persons.

2 The legislature clearly has the power to define the term in the statute, or to set up a statutory procedure for making such a determination. To date, however, the legislature has not done so.


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