-: SJC-13567,
Amy Bodge et al versus Commonwealth et al.
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-: Okay, Attorney Davis,
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-: Chief Justice and Associate Justices,
may it please the court.
My name is Samuel Davis and I have the honor today
of representing the plaintiffs-appellants.
Appellants are Massachusetts State Police Troopers
who in anticipation of major life events
such as the birth of a child, hope to take leave,
under the Massachusetts Paid Family Medical Leave Act
codified at Chapter 175M.
They were told that if they took PFMLA leave,
they would be unable to continue accruing
important employment benefits
and would lose their seniority.
Four of the appellants took leave anyway after giving birth
and suffered these consequences.
Other troopers utilized sick leave or vacation days,
or were forced forego taking leave entirely.
The certified question before this court
is whether Section 2(f) of the PFMLA
provides that state employees covered by the act,
shall accrue seniority, length of service credit,
vacation time, and sick time
while they're on family and medical leave.
The answer to this question is yes for three reasons.
First, the text of Section 2(f) ,
makes clear that covered employees
are entitled to continue accruing benefits
during their leave period on the same schedule
as they enjoyed prior to taking leave.
Second, the structure of the PFMLA
confirms that Section 2(f)'s protection
of the right to accrue benefits must apply to the time
during which an employee is on leave
to avoid rendering other provisions of the act superfluous.
And third, any doubts regarding the scope
and applicability of Section 2(f) are resolved?
When the text is considered in light of the acts,
clearly expressed remedial purpose.
Starting with the text, Section 2(f) expressly provides
that the taking of family or medical leave
shall not affect an employee's right
to accrue various employment benefits.
Contrary to the statutory mandate, the Commonwealth policy-
-: Do you wanna with...
You wanna start with 2(e)? -: I'm sorry.
-: An employee who has taken family or medical leave
shall be restored to the employee's previous position
or to an equivalent position,
blankety-bank as of the date of leave.
Isn't that a problem for you?
-: I don't believe so, Your Honor.
Our understanding of Section 2(e)
is that it restores an employee
to the position or an equivalent position
that they had prior to taking leave, right?
-: With the same employment benefits.
-: I think we understand that in a categorical way,
Your Honor, and so I think if you look at the language here,
there's two provisions, right?
There's the same position or an equivalent position
with the same benefits pay, et cetera.
So I think the circumstance here
that this section is trying to address,
is for example, if you're a senior associate
before you leave for covered leave,
when you come back, your employer needs to restore you
to being a senior associate.
But they also can't say,
"Okay, you're still a senior associate
but before you had health insurance,
you don't have health insurance anymore."
That's what that second provision is trying to protect,
that this is essentially the same position
both in form and in substance and so-
-: How does that work with the length of service credit
as of the date of the leave too?
Isn't the length of service credit
particular to the length of service?
I just...
I have trouble sort of making that make sense.
-: Yes, Your Honor, you know, I think it's notable
that for length of service credit there's different...
So to step back, there are different laws,
different provisions that might define
who is a creditable employee
for purposes of length of service credit.
We think here the PFMLA has made a judgment
that this kind of leave the nature of this kind of leave,
which is for employees who are dealing
with circumstances largely out of their control,
that those employees are entitled to continue accruing
that kind of benefit during a leave period.
So we don't read the limitation...
You know, it says restore to the same,
we don't necessarily read that as saying this puts a cap.
You cannot have any more of any kind of benefit
than the day you left.
-: Do you have a good working definition, sorry,
of the word restored?
-: I don't think the word restored is defined in the statute
but I think kind of plain, ordinary meaning
restored would be put in the same position.
-: Returned, I think would be to the same position, right?
It...
I think embedded in the word restored
means that there's an interruption
and you're being returned back.
If that...
If I am correct about that,
doesn't that seem to make less plausible
your reading of the right to language in 2(f)?
-: I understand that question, Your Honor,
I think no, for two reasons.
And so one, I think it's important
to take a close look at how kinda the restoration
of certain of these benefits actually works in function.
So if you look at seniority for example,
which the Commonwealth has changed its position from the-
-: Right, so I don't know that it's really
before us anymore, correct?
-: I believe it is before us, Your Honor.
-: Why? -: For two reasons.
-: If they've already changed their position,
why is that before us now?
-: For two reasons, Your Honor.
So first, plaintiffs below alleged an interference claim,
essentially that the Commonwealth
by providing information to them that we assert was wrong,
interfered with their right to take leave under this act.
And so obviously, a predicate for that claim
is that the information... (microphone glitches)
Excuse me, the information was wrong.
That is essentially the question before the court.
-: Okay, so for those employees who relied upon
that incorrect interpretation, they would have a claim
for interference with their right under the PMLA?
-: Correct, Your Honor, and I think additionally,
so the appellants here are state troopers, but the class,
and this was on a motion to dismiss,
so we haven't gotten to class certification.
-: [Justice Wolohojian] Right.
-: But the class they are proposing is of all state employees
who are similarly...
Have similarly been interfered with and so-
-: But that would presumably
be a small and finite number of people.
-: Correct, Your Honor.
But to the extent that the Commonwealth
has changed its position, I think it's notable,
it's changed its position in informal communications
with some of the plaintiffs.
There's not a department regulation,
there hasn't been formal rulemaking.
In theory, the Commonwealth changes-
-: But maybe they'll stand up and make a representation
as an officer of the court today.
-: That would be...
That would be great.
I think though to your question,
the treatment of seniority I think actually illustrates
a little bit of the incoherence here
in the Commonwealth's position.
So seniority is a relative benefit, right?
Your seniority is determined
in reference to other members of your class.
And so under the Trooper's Collective Bargaining Agreement,
that class rank is set when you graduate
and then you maintain that class rank.
But the way you maintain that class rank
is by continuing to accrue seniority.
If you are suspended without pay or disciplined,
you would not continue accruing seniority.
And the reason you would drop in class rank
is because for that,
let's say, you were suspended for two months,
during those two months, presumably other of your colleagues
would continue accruing seniority
and they would surpass you in the rankings.
What the state is saying here is essentially,
you're not allowed to accrue seniority.
The decision below and to quote from the Superior Court,
"an employee should not receive any more
or less of each enumerated category."
So you cannot receive any more seniority but to-
-: But you don't have to.
I mean the employer can always step up and do more,
this is the base.
-: That that is correct, Your Honor,
and the statute is clear.
It does not displace additional obligations
that the employer undertakes
in a Collective Bargaining Agreement.
-: Alright, so as a baseline
you get restored to the same position.
I guess I'm trying to...
I'm struggling with your argument
that restoring employee benefits to the same
allows the actual accrual while on leave
when the provision F says right to accrue
and then specifically talks about employer's obligation
during the leave related to health insurance.
-: Yes, Your Honor, let me take that kind of in two parts.
So with respect to the right to accrual language,
I think the function of right to accrual
as opposed to just saying,
an employee will accrue these benefits
is that the act itself is not a source of the right.
So the act does not guarantee an employee
access to vacation time or any of the other benefits here.
What the act is saying is if the employee
has a preexisting right, that is dictated by their contract,
the Collective Bargaining Agreement, et cetera,
it is protected when they take this kind of leave.
I think to be candid, the idea that just pausing
the right to accrue during a leave period,
I don't understand how that is not a negative change
that is prohibited by the act, right?
Because what the Commonwealth is essentially saying is,
okay, in the month before you take leave,
you have the right to accrue
whatever benefits you've agreed upon.
Then during your time on leave, you don't have any right
to accrue those benefits because-
-: But you don't actually accrue them.
The right to accrue them is, I would say,
suspended during the leave and then re-triggered
when the employee comes back.
-: [Justice Wolohojian] Or restored-
-: Yeah, oh, excuse me.
-: Restored. -: Restored, yeah.
Understood, Your Honor.
I think it's notable if you look at 2(f)
in the context of the rest of the statute,
so if you look at Section 9(c),
which provides that any negative change
in the seniority status, employment benefits, pay,
or other terms or conditions of employment,
which occurs any time during a leave taken
by an employee under this chapter,
shall be presumed to be retaliation under this section.
And I think if you look at the phrase
terms or conditions of employment,
I think as that is commonly understood,
and I don't believe it's defined under the statute,
but if you, again, if you were an employee
who prior to taking leave, you had the right
to accrue two vacation days every month
and then you came back and your employer said,
"Actually you have no vacation days,
you don't get to accrue vacation days anymore."
That would plainly be a negative change
in the terms or conditions of employment, right?
And so the two 2(f) for it to have any meaning,
needs to actually apply during the leave period
before the protections of other sections of the act.
-: If I were a legislature and I were trying to write
what you say 2(f) means, I think I would write it
to say an employee shall accrue vacation time,
sick leave bonuses, advancement, seniority,
et cetera, et cetera, et cetera,
during the period of leave, right?
That would be clear and an affirmative obligation,
but that's not what they wrote.
And so I have a hard time understanding
what meaning is to be given to the words right to,
which is clearly different than shall accrue, right?
So can you please help me by articulating
in your interpretation of this,
what meaning the words right to accrue
have that's different, independent of shall crew?
Because I'm going to...
At least speaking personally,
I would expect to see shall accrue
if that's actually what the legislature had intended.
-: Yes, Your Honor.
So again, to draw this distinction
between shall accrue and right to accrue,
the phrase shall accrue, I think implies
that those benefits must accrue like so the categories
that are identified within the statute-
-: [Justice Wolohojian] They will continue to accrue.
-: They will continue to accrue.
But I think that is not necessarily right
because the statute itself
is not a source of any of those benefits.
The statute itself does not provide employees
who are covered on leave with vacation time
or sick leave, or bonuses in the way that the statute does
in other sections provide a wage replacement, for example.
And so the phrase right to accrue rather than shall accrue
recognizes that whether or not an employee
has a right to accrue certain benefits
is outside the ambit of the statute,
it's actually fixed by the employment relationship
between the employee and the employer.
-: Why?
I mean that argument is undercut
by the second sentence in 2(f) in my view
because the statute has gone into that ambit
when the legislature wanted to,
it said that you shall employ...
You shall provide the employee's health insurance benefits.
So if they wanted to go down that road,
why wouldn't they have just done it
the way they did in the second sentence
for the health insurance? -: Well, I think, Your Honor,
that the provision addressing health insurance
doesn't really implicate the reading of the first sentence.
I think health insurance in contrast to benefits
like again, vacation time, sick leave, bonuses,
those are all things that you accrue over a set schedule.
Whereas something like health insurance
as I think it's commonly provided,
either the employer provides health insurance to an employee
or doesn't, it's not something that accrues
over the duration of an employment relationship.
-: Well, there are actually a lot of employment relationships
that don't give health insurance
until you've completed a certain number of months of work.
-: Right, and I think then that this provision
makes very clear that it is the kind of
the specific form of health insurance that is made available
to the employee on the day before they take leave.
That must be maintained throughout that leave period.
And I think that is different than saying,
if you as an employee have the right to accrue
certain benefits on a set schedule,
we will respect that schedule during the leave period.
-: Why wouldn't the legislature have just written
shall continue to accrue?
Because if they haven't written that,
then we need to figure out what right to means.
We can't just substitute right to, for something else,
that would've been a clearer way,
-: Your Honor, respectfully,
you know, I don't know why the statute was written-
-: Right, so doesn't that just land us
into the world of ambiguity?
-: Our position is that the statute is clear
but yes, that is a- -: [Justice Wolohojian] Okay.
-: Textual source of ambiguity.
-: [Justice Wolohojian] Then we get-
-: The problem with that though,
is that we have an administrative agency
charged with interpreting the statute
that has already interpreted in a way
not favorable to your clients.
-: That is correct, Your Honor,
but we don't think the regulations
are entitled to deference here.
And there's, two reasons,
and I recognize I'm coming up on time.
The first reason, which you might disagree with,
is that we think it contravenes the text,
and structure, and purpose of the statute, regulations...
Incorrect interpretations of statutes
are not entitled to deference,
this court has said that many times.
The second reason we think is that this
is not a circumstance where the ordinary reasons
for deferring to agency expertise are present.
So in general, courts defer to agencies
on questions of interpretation of their own statutes
because there's a long history or experience
interpreting and applying a statute,
or there's some kind of independent expertise,
that's not the case here.
The department that was charged with enacting the...
Excuse me, with interpreting this statute,
was created by the statute in at the same time.
This interpretation came right as
this litigation was arising.
This is not a agency that has years and years
of experience and now-
-: That'd be a pretty radical reworking
of our administrative law,
the way you're just describing it.
We tend to give deference for reasonable interpretations
by administrative agencies within their area of expertise.
This is sort of core to that, right?
I mean I've never heard
of these distinctions you're just bringing up.
-: That that is fair, Your Honor.
I think if you look Craft Beer Guild,
which is cited by both the parties,
talks about the reasons deference are warranted
is experience, technical competence,
and specialized expertise.
Justice Kafker: Aren't all three of those present here?
-: Respectfully, Your Honor, I don't think the agency
has a specialized expertise interpreting this.
Justice Kafker: Interpreting the pension laws?
(Justice Kafker laughs)
-: We're talking about crab, right?
(Justice Kafker laughs)
Okay, okay.
-: Yeah, yes, respectfully, our principal argument is that-
Justice Kafker: I get that. -: No deference is warranted
because the interpretation imports a temporal restriction
that is not present in the statute,
which the legislature could have written
into that first sentence of Section 2(f).
Unless there are further questions,
we'll ask for a reversal and rest on our briefs.
-: Okay, thank you.
Okay, Attorney McLaughlin.
-: Good morning, just about.
May it please the court,
Anne McLaughlin Assistant Attorney General
on behalf of defendants, appellees, the Commonwealth,
the State Retirement Board and the State Police.
The appellees respectfully request that the court affirm
the Superior Court's decision below and answer the question,
the certified question before it, in the negative.
Section 2(f) of the Paid Family Medical Leave Act
does not provide that employees shall accrue seniority,
length of service credit, vacation, and sick time
while they are out on family medical leave
and that's for three reasons.
First, as Your Honors have recognized,
Section 2(f) has to be read in harmony with Section 2(e).
And Section 2(e) explicitly provides that an employee
who's taken family or medical leave shall be restored
to their previous position with the same status, pay,
employment benefits, length of service credit,
and seniority as of the date of the leave.
So if an employee were entitled
to accrue benefits during the leave,
then they would return from leave with more benefits,
more vacation time, more sick time.
So they would come back with more not the same benefits
as of the date of the leave,
so that would contravene Section 2(e).
So plaintiff's interpretation
would essentially nullify Section 2(e).
The other reason why the certified question
should be answered in the negative is Section 2(f) itself.
And as Justice Wolohojian has recognized,
this language of right to accrue is important
and it's distinctive because it's not accrual.
And this is what the Superior Court recognized as well
because what that right to accrue language means,
is it preserves the employee's benefits.
-: But let me just play the devil's advocate for a second.
So it could have just written, you know,
as Justice Wolohojian said, we can rewrite it,
the right to vacation time, sick leave, bonuses,
but it wrote the right to accrue,
which is a little different isn't it?
It's kind of odd to formulate this as a right to accrue
when nothing's accruing, isn't it?
-: Well, I think what that preserves
is the employee's right to accrue on an agreed upon schedule
when they return from the leave.
So what it does is it prevents an employee
from returning from leave,
being restored to their same position with the same benefits
and then their employer telling them,
"Oh by the way, you have to wait six months
before you can start to accrue your benefits again."
That would violate Section 2(f),
it wouldn't necessarily violate Section 2(e).
-: That'd violate all kinds of other laws too?
-: It very well might but it certainly...
That's a scenario that shows that 2(e) and 2(f)
are dealing with two different scenarios.
And I think the second sentence of 2(f)
with the legislature specifically called out
during the duration of the leave,
the employer will continue to provide
for health insurance benefits.
So the legislature specifically contemplated
what benefits were going to continue during the duration
and it only called out health insurance benefits.
It did not call out any other benefits.
-: You have the problem that you're missing
a temporal limitation in the first sentence of 2(f) though.
-: I would agree there's not a temporal limit,
there's not a...
It doesn't say exactly- -: Or wouldn't say limitation-
-: When that rate triggered.
-: Maybe marker, so a temporal indication
as to what's to happen.
It certainly, it seems to me a plausible...
That the agency's interpretation
is certainly a plausible interpretation
but it's not driven by the plain language here, I think,
because the plain language is missing a temporal marker.
-: Your Honor, you're right.
It doesn't say when that right to accrue is triggered.
The agency has interpreted it as upon reinstatement,
when the employee returns.
But I think reading 2(f) in harmony with 2(e),
that requires the employee to come back
with the same benefits as of the date of the leave,
reading those two in harmony in conjunction
with that second sentence about health insurance,
specifically called out for during
the duration of the leave,
makes clear that holistically that's how Section 2(f)
should be interpreted.
-: But then why wouldn't they have used the word restored
in 2(f) as opposed to affect?
-: That I don't know, it's a good question.
-: And let's assume that choice was deliberate.
-: I don't think that choice was deliberate
for all the other reasons that I've mentioned.
When you look at 2(f) with 2(e),
because if you were to read 2(f) as allowing the...
Or entitling the employee to accrue benefits
during the leave, then that can't be squared
with Section 2(e), which says the employee comes back
with the same benefits as of the date of the leave.
So if you're accruing during the leave,
you're coming back with more benefits,
vacation time, sick time, seniority, et cetera.
So that's the only reading that squares
and harmonizes all of the provisions.
And this is a reasonable interpretation
of the agency's regulations.
And because it is a reasonable interpretation,
those are entitled to deference.
They were duly promulgated by the department.
They are presumptively valid
and they can only be struck down
if under no reasonable construction
they can be interpreted in harmony with the statute
and they certainly can.
-: Was there any legislative history here
saying something like, "Hey, you're off, you're on leave,
you shouldn't be getting more.
You shouldn't be accruing sick leave time
when you're basically taking care of a sick person
and not at work."
And was there anything...
Any legislative history that's useful?
-: There's none that I was able to find
on this particular point.
Justice Kafker: Okay.
-: But again, I think what's clear
is 2(e) working in conjunction with 2(f),
as well as in harmony with the regulations themselves.
So essentially what happens under the statute
is that there is a pause in benefits.
The employee goes out on leave,
all of their benefits pause,
their seniority, vacation time, sick time.
Then they return and their benefits are the same
as when they left and then they resume,
their right to accrue continues upon their return.
And that, as I've discussed, is a reasonable interpretation
of the statute by the regulations.
-: Do you happen to know how many other states
have similar acts and how the language of 2(f)
compares with any comparable provisions
in those other state's laws?
-: I don't other...
There's a myriad of of paid leave laws
across the Commonwealth.
I don't know what other state statutes can say.
All I can say is that the federal version is the same
in that you don't accrue benefits while you're on leave.
-: Right but it doesn't use the right to accrue language.
Ms. McLaughlin: That is correct.
-: So do you know if the right to accrue language
is used in any other states?
-: I am not...
I do not know.
-: So we don't know whether that phrase
has been construed anywhere else?
-: That is correct.
In other states, I don't know if it has been.
Again, I think holistically with the statute,
the plain mean is clear as I said, along...
Also in harmony with the regulations.
I know it's been a long morning.
Unless there are any other questions,
I'm happy to rest on my briefs.