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Cendant Corp. v. Commissioner of Labor10/25/2005
ly liable for interfering with an employ-ee's FMLA rights. Contrary to the plaintiff's claim, none of the courts adopting the strict liability framework has interpreted this term to suggest that an employer is liable for failing to reinstate an employee even if the employer had legitimate business reasons for failing to do so. Indeed, FMLA and the leave statute both provide that an employee's right to reinstatement is not absolute. Specifically, § 2614 (a) (3) of FMLA provides in relevant part that " othing in this section shall be construed to entitle any restored employee to . . . (B) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." Similarly, General Statutes § 31-51nn (c) (2), a provision of the leave statute, uses identical language. Moreover, the Eighth Circuit Court of Appeals recently has rejected explicitly the claim that the term strict liability applies to interference claims in the sense understood by the plaintiff in the present case. Throneberry v. McGehee Desha County Hospital, supra, 403 F.3d 977 ("FMLA . . . does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave" [emphasis added]). Accordingly, we reject the plaintiff's argument that the trial court improperly affirmed the commissioner's use of a strict liability standard.
We also find persuasive the burden-shifting analysis used by the majority of federal courts because this analysis is consistent with the regulations implementing FMLA and the leave statute. The federal regulations provide in relevant part that " n employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. . . ." 29 C.F.R. § 825.216 (a). In order to make such a showing, "an employer would have the burden of proving that an employee would have been laid off during the FMLA leave period, and, therefore, would not be entitled to restoration." (Emphasis added.) 29 C.F.R. § 825.216 (a) (1). The leave statute contains identical regulations. See Regs., Conn. State Agencies § 31-51qq-24 (a). We agree with the reasoning of the Tenth Circuit Court of Appeals that the federal regulation "validly shifts to the employer the burden of proving that an employee, laid off during FMLA leave, would have been dismissed regardless of the employee's request for, or taking of, FMLA leave." Smith v. Diffee Ford-Lincoln-Mercury, Inc., supra, 298 F.3d 963. Several other federal courts also have been guided by 29 C.F.R. § 825.216 (a) in adopting the burden-shifting framework. See, e.g., Throneberry v. McGehee Desha County Hospital, supra, 403 F.3d 980; Bachelder v. America West Airlines, Inc., supra, 259 F.3d 1125; O'Connor v. PCA Family Health Plan, Inc., supra, 200 F.3d 1354; Parker v. Hahneman University Hospital, 234 F. Sup. 2d 478, 486 (N.J. 2002). We agree with these courts that a plain reading of 29 C.F.R. § 825.216 (a) clearly establishes the burden-shifting framework to be used in analyzing an interference claim, and we interpret our similar state regulation, § 31-51qq-24 (a) of the Regulations of Connecticut State Agencies, in the same manner. We therefore reject the plaintiff's claim that the regulation only explains the nature of the substantive right to reinstatement without establishing a definitive burden-shifting framework.
We also reject the plaintiff's argument that the McDonnell Douglas Corp. burden-shifting framework should apply to the interference claim in the present case for several reasons. First, we note that, in view of the weight of
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