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Cendant Corp. v. Commissioner of Labor10/25/2005
he trier of fact, by a preponderance of the evidence, that, despite the alternate characterization offered by the employer . . . the benefit is one that the employee would have received if leave had not been taken." (Emphasis added.) Id. With these two approaches in mind, we turn to our analysis.
Like FMLA, the leave statute is silent as to the appropriate analytical framework to be employed in analyzing an interference claim under the leave statute. As we previously have stated herein, however, our legislature has made clear its intention that Connecticut law conform to FMLA and federal regulations promulgated pursuant to the federal statute. We therefore endorse the framework employed by the majority of federal courts and conclude that the trial court properly affirmed the commissioner's application of the strict liability standard and his allocation of the burden of proof.
We are persuaded that the framework employed by the majority of federal courts should apply to the leave statute for several reasons. First, we find the strict liability framework adopted by the majority of federal courts to be consistent with the mandatory language used in the FMLA provision and the leave statute prohibiting interference with an employee's rights. Specifically, the FMLA provision in question provides that " t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (Emphasis added.) 29 U.S.C. ยง 2615 (a) (1). Section 31-51pp (a) (1) of the leave statute similarly provides that " t shall be a violation of sections 5-248a and 31-51kk to 31-51qq, inclusive, for any employer to interfere with, restrain or deny the exercise of, or the attempt to exercise, any right provided under said sections." This court previously has recognized the significance of the legislature's choice in electing to choose "shall" or "may" in formulating a statutory directive. "The words shall and may must . . . be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." (Internal quotation marks omitted.) Builders Service Corp., Inc. v. Planning & Zoning Commission, 208 Conn. 267, 304-305, 545 A.2d 530 (1988); Fenton v. Connecticut Hospital Assn. Workers' Compensation Trust, 58 Conn. App. 45, 53, 752 A.2d 65, cert. denied, 254 Conn. 911, 759 A.2d 504 (2000). We therefore adopt the reasoning that "Congress used the words `shall be unlawful for an employer to [deny an employee's rights under the FMLA]' rather than the words `may be unlawful to [to deny an employee's rights under the FMLA],' [to indicate that it] intended to hold employers strictly liable for denying FMLA provided rights to employees." Cross v. Southwest Recreational Industries, Inc., supra, 17 F. Sup. 2d 1368.
We note that the plaintiff mischaracterizes the scope of the term strict liability in challenging this standard on appeal. Specifically, the plaintiff claims that the trial court improperly affirmed the commissioner's use of a strict liability standard because such a standard implies that an employer must reinstate an employee following her leave, even if the employer had legitimate business reasons for not doing so. We disagree. The term "strict liability" has been used to distinguish the framework used for interference claims from the framework used for discrimination claims under FMLA. Specifically, in establishing an employer's liability for discrimination under FMLA, an employee must show a discriminatory intent on the part of the employer. By contrast, intent is irrelevant in establishing an employer's liability under an interference claim. It is in this sense only that an employer is strict
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