The Honorable James A. Amann

Speaker of the House

Legislative Office Building, Room 4100

Hartford, CT  06106-1591

Dear Representative Amann:

         This letter is in response to your request for a formal legal opinion concerning an employment issue impacting Representative Bruce Morris. I understand from your letter that Representative Morris is employed as the director of human relations for the Norwalk Board of Education (the “Board”) and has been serving as a member of the Connecticut General Assembly since his election in 2006. Because of the possibility that Representative Morris’ legislative duties could conceivably interfere with his job responsibilities, the Board has proposed that Representative Morris enter into a letter agreement permitting him to be paid his full salary, but requiring him to bear the cost of training and compensating a third party to perform his Board duties if he is absent from work due to legislative obligations. You note that, since his election, Representative Morris has been able to fulfill the requirements of his job and has not been informed of any complaints by the Board or the superintendent concerning his performance. You further note that the Board may be allowing other administrators to be absent from work for other purposes, such as teaching classes, without requiring that they pay for the training and compensation of substitutes to perform their duties in their absence. Given this situation, you are concerned that Representative Morris is being treated differently than other employees and question whether requiring him effectively to forfeit a portion of his wages constitutes a violation of Conn. Gen. Stat. §§ 2-3a, 31-71e, or 31-73.

         I conclude that the Board cannot require Representative Morris to pay for training and compensation for a substitute if it is treating him differently than other similarly situated employees. Such disparate, discriminatory treatment would violate § 2-3a. Further, even if Representative Morris is treated consistently with the Board's practice concerning other employees, the Board must ensure that Representative Morris is paid all that he is entitled to be compensated pursuant to Conn. Gen. Stat. § 2-3a.  At a minimum, Representative Morris must be paid the percentage of his full time salary that is equivalent to the percentage of time that he works for the Board, net of all costs incurred to train and pay a substitute.

         Conn. Gen. Stat. § 2-3a prohibits employers from discriminating against employees who are absent from work in order to perform the duties of legislative office. Specifically, § 2-3a states, in pertinent part, that:

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.

Conn. Gen. Stat. § 2-3a(a).

          The General Assembly passed Conn. Gen. Stat. § 2-3a in 1959 to protect its members from discrimination and discipline 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. As Senator Sullivan noted in connection with a 1997 amendment to § 2-3a, “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). Accordingly, § 2-3a was intended to ensure that working individuals would be able to serve in the General Assembly without retribution from their employers.

          To avoid violating § 2-3a, an employer must ensure that its policies do not discriminate against employees who are serving in the General Assembly. A policy is discriminatory if it treats similarly situated employees differently. Ramos v. Town of Vernon, 254 Conn. 799, 826 (2000); Francis v. Fitzpatrick, 129 Conn. 619, 623 (1943). Thus, for example, in Fleming v. Asea Brown Boveri, Inc., No. CV 990586460, 2006 Conn. Super. Lexis 84 at *23-27 (Conn. Superior Ct. Jan. 6, 2006), the court found that a company that promoted its employee to director and paid him at an “E-9 salary level” because he was a legislator had discriminated against the employee in violation of § 2-3a because the company consistently classified other directors at salary level E-11, which was higher than the E-9 level. When the company argued that the difference was insignificant,  the court responded that § 2-3a “does not authorize even a small amount of discrimination against legislators.” Fleming v. Asea Brown Boveri, Inc., No. CV 990586460, 2006 Conn. Super. Lexis 581 at *8 (Conn. Superior Ct., Feb. 21, 2006).

In the present case, you state that although the Board has proposed requiring Representative Morris to pay for the training and compensation of substitutes to perform his duties while he is attending to legislative matters, it may have a policy of permitting other administrators to be absent for other purposes, such as teaching, without requiring them to make similar arrangements for paying substitutes. If this is the case, such a policy as applied only to a  legislator carrying out legislative duties would be a violation of § 2-3a.  We recommend that the Board review its policies to ensure that Representative Morris is not being treated differently than other administrators in equivalent positions with regard to work-related absences simply because he is a legislator. If replacements are provided at no cost to other administrators for such absences, then the Board may not require Representative Morris to pay for such substitutes when he is absent on legislative business.

If it is determined that deducting the cost of training and paying a substitute from Representative Morris's pay is consistent with the policies applied to other administrators absent for other purposes, then the Board should review the impact of its policy on Representative Morris's net pay .Pursuant to § 2-3a, the Board is not required to compensate Representative Morris for time when he is absent from work performing legislative duties. Thus, if Representative Morris is absent from work for legislative duties 20% of a full time week, the Board is permitted to pay him only 80% of his full time salary. It is not, however, permitted to pay him less than that. Fleming v. Asea Brown Boveri, Inc., No. CV 990586460, 2006 Conn. Super. Lexis 84 at *26-27 (Conn. Superior Ct. Jan. 6, 2006). In the present case, the Board is proposing that it pay Representative Morris his full salary, but require him to pay for training and compensating a substitute. When the latter costs are subtracted from Representative Morris’ full salary, it is possible that the net result will be lower than the pay to which Representative Morris is entitled under § 2-3a. The Board must review this issue to ensure that Representative Morris will in fact be fully compensated for the time that he works for the Board.

          You also question whether the Board’s proposed letter agreement with Representative Morris might violate Conn. Gen. Stat. §§ 31-71e or 31-73.  Section 31-71e prohibits an employer from withholding wages from an employee except under limited circumstances, such as when the employee has agreed to the withholding. Specifically, § 31-71e provides that:

No employer may withhold or divert any portion of an employee’s wages unless (1) the employer is required or empowered to do so by state or federal law, or (2) the employer has written authorization from the employee for deductions on a form approved by the commissioner, or (3) the deductions are authorized by the employee, in writing, for medical, surgical or hospital care or service, without financial benefit to the employer and recorded in the employer’s wage record book.

Conn. Gen. Stat. § 31-71e.

Similarly, § 31-73 prohibits an employer from requiring an employee to refund wages already paid in order to keep his job. In pertinent part, § 31-73 states:

No employer, contractor, subcontractor, foreman, superintendent or supervisor of labor, acting by himself or by his agent, shall, directly or indirectly, demand, request, receive or exact any refund of wages, fee, sum of money or contribution from any person, or deduct any part of the wages agreed to be paid, upon the representation or the understanding that such refund of wages, fee, sum of money, contribution or deduction is necessary to secure employment or continue in employment. No such person shall require, request or demand that any person agree to make payment of any refund of wages, fee, contribution or deduction from wages in order to obtain employment or continue in employment.

Conn. Gen. Stat. § 31-73(b). 

In construing §§ 31-71e and 31-73, the Connecticut Supreme Court has concluded that the legislative intent was not to impose any specific formula for calculating wages, but rather “to protect the sanctity of the wages earned by an employee pursuant to the agreement he or she has made with his or her employer.” Mytych v. May Dept. Stores Co., 260 Conn. 152, 161 (2002). Thus, for example, in Mytych v. May Dept. Stores Co., 260 Conn. 152, 161 (2002), the court held that an employer’s practice of deducting the cost of returned items from an employee salesperson’s compensation did not violate either § 31-71e or § 31-73 because the practice was consistent with the formula for calculating wages to which the employee had agreed when she was hired. An employer cannot, however, require an employee to refund wages previously earned as a condition of continued employment. Thus, in Lockwood v. Professional Wheelchair Transportation, Inc., 37 Conn. App. 85, cert. denied, 233 Conn. 902 (1995), the court held that an employer violated § 31-73(b) when it demanded that its employee pay the $1000 deductible on the employer’s insurance policy as a condition of returning to work following a work-related traffic accident.

These cases make clear that the Board and Representative Morris may enter into a voluntary agreement establishing a formula for calculating Representative Morris’ future wages without violating §§ 31-71e and 31-73 as long as that voluntary agreement does not violate the requirements of Conn. Gen. Stat. § 2-3a. See Mytych v. May Dept. Stores Co., 260 Conn. 152 (2002). If Representative Morris is working less than full time for the Board due to his legislative obligations, the Board may withhold the amount it would otherwise owe for the lost time without violating § 31-71e, even in the absence of an agreement, because it “is empowered to do so by state . . . law,” specifically § 2-3a. See Conn. Gen. Stat. § 31-71e. It may not, however, require Representative Morris to reimburse it for the past costs of paying substitute employees as a condition of continued employment without running afoul of § 31-73. Nor can it require Representative Morris to agree to a formula or pay for costs that result in his being paid less than the pro rata amount to which he is entitled under § 2-3a.

In sum, the Board must ensure that its policies regarding employee absences are not discriminatory against legislators and apply equally to all similarly situated employees. In addition, any proposed agreement between Representative Morris and the Board must provide Representative Morris with no less than the full amount of compensation he is due under § 2-3a. In short, he must be paid for all the time that he works for the Board.

I trust that the foregoing addresses your concerns.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL