WEBVTT
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SJC-13567,
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Amy Bodge et al versus Commonwealth et al.
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(courtroom items shuffling)
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(courtroom items shuffling continues)
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Okay, Attorney Davis,
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(binder shuffling)
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Chief Justice and Associate Justices,
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may it please the court.
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My name is Samuel Davis and I have the honor today
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of representing the plaintiffs-appellants.
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Appellants are Massachusetts State Police Troopers
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who in anticipation of major life events
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such as the birth of a child, hope to take leave,
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under the Massachusetts Paid Family Medical Leave Act
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codified at Chapter 175M.
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They were told that if they took PFMLA leave,
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they would be unable to continue accruing
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important employment benefits
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and would lose their seniority.
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Four of the appellants took leave anyway after giving birth
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and suffered these consequences.
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Other troopers utilized sick leave or vacation days,
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or were forced forego taking leave entirely.
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The certified question before this court
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is whether Section 2(f) of the PFMLA
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provides that state employees covered by the act,
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shall accrue seniority, length of service credit,
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vacation time, and sick time
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while they're on family and medical leave.
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The answer to this question is yes for three reasons.
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First, the text of Section 2(f) ,
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makes clear that covered employees
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are entitled to continue accruing benefits
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during their leave period on the same schedule
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as they enjoyed prior to taking leave.
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Second, the structure of the PFMLA
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confirms that Section 2(f)'s protection
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of the right to accrue benefits must apply to the time
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during which an employee is on leave
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to avoid rendering other provisions of the act superfluous.
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And third, any doubts regarding the scope
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and applicability of Section 2(f) are resolved?
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When the text is considered in light of the acts,
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clearly expressed remedial purpose.
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Starting with the text, Section 2(f) expressly provides
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that the taking of family or medical leave
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shall not affect an employee's right
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to accrue various employment benefits.
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Contrary to the statutory mandate, the Commonwealth policy-
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Do you wanna with...
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You wanna start with 2(e)?
I'm sorry.
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An employee who has taken family or medical leave
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shall be restored to the employee's previous position
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or to an equivalent position,
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blankety-bank as of the date of leave.
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Isn't that a problem for you?
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I don't believe so, Your Honor.
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Our understanding of Section 2(e)
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is that it restores an employee
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to the position or an equivalent position
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that they had prior to taking leave, right?
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With the same employment benefits.
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I think we understand that in a categorical way,
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Your Honor, and so I think if you look at the language here,
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there's two provisions, right?
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There's the same position or an equivalent position
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with the same benefits pay, et cetera.
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So I think the circumstance here
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that this section is trying to address,
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is for example, if you're a senior associate
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before you leave for covered leave,
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when you come back, your employer needs to restore you
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to being a senior associate.
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But they also can't say,
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"Okay, you're still a senior associate
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but before you had health insurance,
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you don't have health insurance anymore."
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That's what that second provision is trying to protect,
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that this is essentially the same position
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both in form and in substance and so-
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How does that work with the length of service credit
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as of the date of the leave too?
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Isn't the length of service credit
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particular to the length of service?
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I just...
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I have trouble sort of making that make sense.
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Yes, Your Honor, you know, I think it's notable
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that for length of service credit there's different...
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So to step back, there are different laws,
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different provisions that might define
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who is a creditable employee
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for purposes of length of service credit.
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We think here the PFMLA has made a judgment
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that this kind of leave the nature of this kind of leave,
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which is for employees who are dealing
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with circumstances largely out of their control,
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that those employees are entitled to continue accruing
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that kind of benefit during a leave period.
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So we don't read the limitation...
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You know, it says restore to the same,
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we don't necessarily read that as saying this puts a cap.
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You cannot have any more of any kind of benefit
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than the day you left.
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Do you have a good working definition, sorry,
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of the word restored?
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I don't think the word restored is defined in the statute
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but I think kind of plain, ordinary meaning
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restored would be put in the same position.
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Returned, I think would be to the same position, right?
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It...
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I think embedded in the word restored
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means that there's an interruption
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and you're being returned back.
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If that...
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If I am correct about that,
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doesn't that seem to make less plausible
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your reading of the right to language in 2(f)?
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I understand that question, Your Honor,
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I think no, for two reasons.
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And so one, I think it's important
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to take a close look at how kinda the restoration
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of certain of these benefits actually works in function.
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So if you look at seniority for example,
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which the Commonwealth has changed its position from the-
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Right, so I don't know that it's really
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before us anymore, correct?
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I believe it is before us, Your Honor.
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Why?
For two reasons.
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If they've already changed their position,
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why is that before us now?
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For two reasons, Your Honor.
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So first, plaintiffs below alleged an interference claim,
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essentially that the Commonwealth
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by providing information to them that we assert was wrong,
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interfered with their right to take leave under this act.
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And so obviously, a predicate for that claim
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is that the information...
(microphone glitches)
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Excuse me, the information was wrong.
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That is essentially the question before the court.
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Okay, so for those employees who relied upon
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that incorrect interpretation, they would have a claim
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for interference with their right under the PMLA?
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Correct, Your Honor, and I think additionally,
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so the appellants here are state troopers, but the class,
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and this was on a motion to dismiss,
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so we haven't gotten to class certification.
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[Justice Wolohojian] Right.
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But the class they are proposing is of all state employees
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who are similarly...
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Have similarly been interfered with and so-
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But that would presumably
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be a small and finite number of people.
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Correct, Your Honor.
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But to the extent that the Commonwealth
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has changed its position, I think it's notable,
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it's changed its position in informal communications
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with some of the plaintiffs.
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There's not a department regulation,
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there hasn't been formal rulemaking.
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In theory, the Commonwealth changes-
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But maybe they'll stand up and make a representation
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as an officer of the court today.
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That would be...
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That would be great.
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I think though to your question,
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the treatment of seniority I think actually illustrates
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a little bit of the incoherence here
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in the Commonwealth's position.
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So seniority is a relative benefit, right?
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Your seniority is determined
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in reference to other members of your class.
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And so under the Trooper's Collective Bargaining Agreement,
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that class rank is set when you graduate
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and then you maintain that class rank.
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But the way you maintain that class rank
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is by continuing to accrue seniority.
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If you are suspended without pay or disciplined,
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you would not continue accruing seniority.
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And the reason you would drop in class rank
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is because for that,
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let's say, you were suspended for two months,
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during those two months, presumably other of your colleagues
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would continue accruing seniority
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and they would surpass you in the rankings.
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What the state is saying here is essentially,
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you're not allowed to accrue seniority.
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The decision below and to quote from the Superior Court,
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"an employee should not receive any more
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or less of each enumerated category."
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So you cannot receive any more seniority but to-
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But you don't have to.
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I mean the employer can always step up and do more,
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this is the base.
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That that is correct, Your Honor,
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and the statute is clear.
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It does not displace additional obligations
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that the employer undertakes
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in a Collective Bargaining Agreement.
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Alright, so as a baseline
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you get restored to the same position.
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I guess I'm trying to...
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I'm struggling with your argument
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that restoring employee benefits to the same
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allows the actual accrual while on leave
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when the provision F says right to accrue
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and then specifically talks about employer's obligation
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during the leave related to health insurance.
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Yes, Your Honor, let me take that kind of in two parts.
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So with respect to the right to accrual language,
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I think the function of right to accrual
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as opposed to just saying,
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an employee will accrue these benefits
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is that the act itself is not a source of the right.
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So the act does not guarantee an employee
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access to vacation time or any of the other benefits here.
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What the act is saying is if the employee
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has a preexisting right, that is dictated by their contract,
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the Collective Bargaining Agreement, et cetera,
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it is protected when they take this kind of leave.
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I think to be candid, the idea that just pausing
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the right to accrue during a leave period,
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I don't understand how that is not a negative change
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that is prohibited by the act, right?
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Because what the Commonwealth is essentially saying is,
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okay, in the month before you take leave,
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you have the right to accrue
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whatever benefits you've agreed upon.
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Then during your time on leave, you don't have any right
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to accrue those benefits because-
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But you don't actually accrue them.
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The right to accrue them is, I would say,
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suspended during the leave and then re-triggered
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when the employee comes back.
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[Justice Wolohojian] Or restored-
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Yeah, oh, excuse me.
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Restored.
Restored, yeah.
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Understood, Your Honor.
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I think it's notable if you look at 2(f)
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in the context of the rest of the statute,
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so if you look at Section 9(c),
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which provides that any negative change
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in the seniority status, employment benefits, pay,
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or other terms or conditions of employment,
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which occurs any time during a leave taken
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by an employee under this chapter,
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shall be presumed to be retaliation under this section.
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And I think if you look at the phrase
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terms or conditions of employment,
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I think as that is commonly understood,
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and I don't believe it's defined under the statute,
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but if you, again, if you were an employee
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who prior to taking leave, you had the right
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to accrue two vacation days every month
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and then you came back and your employer said,
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"Actually you have no vacation days,
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you don't get to accrue vacation days anymore."
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That would plainly be a negative change
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in the terms or conditions of employment, right?
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And so the two 2(f) for it to have any meaning,
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needs to actually apply during the leave period
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before the protections of other sections of the act.
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If I were a legislature and I were trying to write
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what you say 2(f) means, I think I would write it
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to say an employee shall accrue vacation time,
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sick leave bonuses, advancement, seniority,
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et cetera, et cetera, et cetera,
267
00:11:31.140 --> 00:11:34.140
during the period of leave, right?
268
00:11:34.140 --> 00:11:37.710
That would be clear and an affirmative obligation,
269
00:11:37.710 --> 00:11:39.897
but that's not what they wrote.
270
00:11:39.897 --> 00:11:43.260
And so I have a hard time understanding
271
00:11:43.260 --> 00:11:48.260
what meaning is to be given to the words right to,
272
00:11:48.960 --> 00:11:53.760
which is clearly different than shall accrue, right?
273
00:11:53.760 --> 00:11:58.760
So can you please help me by articulating
274
00:11:59.910 --> 00:12:02.310
in your interpretation of this,
275
00:12:02.310 --> 00:12:06.120
what meaning the words right to accrue
276
00:12:06.120 --> 00:12:11.120
have that's different, independent of shall crew?
277
00:12:11.370 --> 00:12:12.660
Because I'm going to...
278
00:12:12.660 --> 00:12:14.550
At least speaking personally,
279
00:12:14.550 --> 00:12:16.560
I would expect to see shall accrue
280
00:12:16.560 --> 00:12:20.280
if that's actually what the legislature had intended.
281
00:12:20.280 --> 00:12:21.900
Yes, Your Honor.
282
00:12:21.900 --> 00:12:25.230
So again, to draw this distinction
283
00:12:25.230 --> 00:12:28.320
between shall accrue and right to accrue,
284
00:12:28.320 --> 00:12:30.270
the phrase shall accrue, I think implies
285
00:12:30.270 --> 00:12:34.170
that those benefits must accrue like so the categories
286
00:12:34.170 --> 00:12:35.105
that are identified within the statute-
287
00:12:35.105 --> 00:12:36.060
[Justice Wolohojian] They will continue to accrue.
288
00:12:36.060 --> 00:12:37.804
They will continue to accrue.
289
00:12:37.804 --> 00:12:40.950
But I think that is not necessarily right
290
00:12:40.950 --> 00:12:42.600
because the statute itself
291
00:12:42.600 --> 00:12:45.420
is not a source of any of those benefits.
292
00:12:45.420 --> 00:12:48.450
The statute itself does not provide employees
293
00:12:48.450 --> 00:12:52.200
who are covered on leave with vacation time
294
00:12:52.200 --> 00:12:54.900
or sick leave, or bonuses in the way that the statute does
295
00:12:54.900 --> 00:12:57.870
in other sections provide a wage replacement, for example.
296
00:12:57.870 --> 00:13:01.200
And so the phrase right to accrue rather than shall accrue
297
00:13:01.200 --> 00:13:03.510
recognizes that whether or not an employee
298
00:13:03.510 --> 00:13:06.090
has a right to accrue certain benefits
299
00:13:06.090 --> 00:13:07.920
is outside the ambit of the statute,
300
00:13:07.920 --> 00:13:10.650
it's actually fixed by the employment relationship
301
00:13:10.650 --> 00:13:12.120
between the employee and the employer.
302
00:13:12.120 --> 00:13:12.953
Why?
303
00:13:12.953 --> 00:13:14.460
I mean that argument is undercut
304
00:13:14.460 --> 00:13:17.010
by the second sentence in 2(f) in my view
305
00:13:17.010 --> 00:13:20.070
because the statute has gone into that ambit
306
00:13:20.070 --> 00:13:21.570
when the legislature wanted to,
307
00:13:21.570 --> 00:13:23.220
it said that you shall employ...
308
00:13:23.220 --> 00:13:28.220
You shall provide the employee's health insurance benefits.
309
00:13:30.930 --> 00:13:33.000
So if they wanted to go down that road,
310
00:13:33.000 --> 00:13:34.500
why wouldn't they have just done it
311
00:13:34.500 --> 00:13:36.060
the way they did in the second sentence
312
00:13:36.060 --> 00:13:38.273
for the health insurance?
Well, I think, Your Honor,
313
00:13:38.273 --> 00:13:40.440
that the provision addressing health insurance
314
00:13:40.440 --> 00:13:43.560
doesn't really implicate the reading of the first sentence.
315
00:13:43.560 --> 00:13:45.960
I think health insurance in contrast to benefits
316
00:13:45.960 --> 00:13:48.750
like again, vacation time, sick leave, bonuses,
317
00:13:48.750 --> 00:13:51.660
those are all things that you accrue over a set schedule.
318
00:13:51.660 --> 00:13:53.955
Whereas something like health insurance
319
00:13:53.955 --> 00:13:56.310
as I think it's commonly provided,
320
00:13:56.310 --> 00:13:59.880
either the employer provides health insurance to an employee
321
00:13:59.880 --> 00:14:02.460
or doesn't, it's not something that accrues
322
00:14:02.460 --> 00:14:04.680
over the duration of an employment relationship.
323
00:14:04.680 --> 00:14:07.500
Well, there are actually a lot of employment relationships
324
00:14:07.500 --> 00:14:08.820
that don't give health insurance
325
00:14:08.820 --> 00:14:12.420
until you've completed a certain number of months of work.
326
00:14:12.420 --> 00:14:14.700
Right, and I think then that this provision
327
00:14:14.700 --> 00:14:18.510
makes very clear that it is the kind of
328
00:14:18.510 --> 00:14:21.810
the specific form of health insurance that is made available
329
00:14:21.810 --> 00:14:24.720
to the employee on the day before they take leave.
330
00:14:24.720 --> 00:14:27.267
That must be maintained throughout that leave period.
331
00:14:27.267 --> 00:14:29.550
And I think that is different than saying,
332
00:14:29.550 --> 00:14:31.560
if you as an employee have the right to accrue
333
00:14:31.560 --> 00:14:33.540
certain benefits on a set schedule,
334
00:14:33.540 --> 00:14:36.240
we will respect that schedule during the leave period.
335
00:14:38.220 --> 00:14:41.040
Why wouldn't the legislature have just written
336
00:14:41.040 --> 00:14:43.053
shall continue to accrue?
337
00:14:44.370 --> 00:14:46.740
Because if they haven't written that,
338
00:14:46.740 --> 00:14:50.070
then we need to figure out what right to means.
339
00:14:50.070 --> 00:14:52.860
We can't just substitute right to, for something else,
340
00:14:52.860 --> 00:14:56.010
that would've been a clearer way,
341
00:14:56.010 --> 00:14:58.042
Your Honor, respectfully,
342
00:14:58.042 --> 00:15:01.110
you know, I don't know why the statute was written-
343
00:15:01.110 --> 00:15:02.670
Right, so doesn't that just land us
344
00:15:02.670 --> 00:15:04.473
into the world of ambiguity?
345
00:15:05.910 --> 00:15:07.380
Our position is that the statute is clear
346
00:15:07.380 --> 00:15:08.970
but yes, that is a-
[Justice Wolohojian] Okay.
347
00:15:08.970 --> 00:15:09.942
Textual source of ambiguity.
348
00:15:09.942 --> 00:15:10.775
[Justice Wolohojian] Then we get-
349
00:15:10.775 --> 00:15:11.608
The problem with that though,
350
00:15:11.608 --> 00:15:13.890
is that we have an administrative agency
351
00:15:13.890 --> 00:15:15.840
charged with interpreting the statute
352
00:15:15.840 --> 00:15:19.620
that has already interpreted in a way
353
00:15:19.620 --> 00:15:21.630
not favorable to your clients.
354
00:15:21.630 --> 00:15:22.980
That is correct, Your Honor,
355
00:15:22.980 --> 00:15:24.480
but we don't think the regulations
356
00:15:24.480 --> 00:15:25.740
are entitled to deference here.
357
00:15:25.740 --> 00:15:27.120
And there's, two reasons,
358
00:15:27.120 --> 00:15:29.370
and I recognize I'm coming up on time.
359
00:15:29.370 --> 00:15:32.010
The first reason, which you might disagree with,
360
00:15:32.010 --> 00:15:34.050
is that we think it contravenes the text,
361
00:15:34.050 --> 00:15:37.190
and structure, and purpose of the statute, regulations...
362
00:15:38.040 --> 00:15:40.470
Incorrect interpretations of statutes
363
00:15:40.470 --> 00:15:41.550
are not entitled to deference,
364
00:15:41.550 --> 00:15:43.230
this court has said that many times.
365
00:15:43.230 --> 00:15:44.700
The second reason we think is that this
366
00:15:44.700 --> 00:15:47.820
is not a circumstance where the ordinary reasons
367
00:15:47.820 --> 00:15:51.000
for deferring to agency expertise are present.
368
00:15:51.000 --> 00:15:53.730
So in general, courts defer to agencies
369
00:15:53.730 --> 00:15:56.460
on questions of interpretation of their own statutes
370
00:15:56.460 --> 00:15:58.860
because there's a long history or experience
371
00:15:58.860 --> 00:16:00.690
interpreting and applying a statute,
372
00:16:00.690 --> 00:16:03.480
or there's some kind of independent expertise,
373
00:16:03.480 --> 00:16:05.100
that's not the case here.
374
00:16:05.100 --> 00:16:07.770
The department that was charged with enacting the...
375
00:16:07.770 --> 00:16:09.780
Excuse me, with interpreting this statute,
376
00:16:09.780 --> 00:16:13.350
was created by the statute in at the same time.
377
00:16:13.350 --> 00:16:15.150
This interpretation came right as
378
00:16:15.150 --> 00:16:16.860
this litigation was arising.
379
00:16:16.860 --> 00:16:18.930
This is not a agency that has years and years
380
00:16:18.930 --> 00:16:20.130
of experience and now-
381
00:16:20.130 --> 00:16:22.740
That'd be a pretty radical reworking
382
00:16:22.740 --> 00:16:24.390
of our administrative law,
383
00:16:24.390 --> 00:16:26.070
the way you're just describing it.
384
00:16:26.070 --> 00:16:29.910
We tend to give deference for reasonable interpretations
385
00:16:29.910 --> 00:16:33.810
by administrative agencies within their area of expertise.
386
00:16:33.810 --> 00:16:36.720
This is sort of core to that, right?
387
00:16:36.720 --> 00:16:37.890
I mean I've never heard
388
00:16:37.890 --> 00:16:40.080
of these distinctions you're just bringing up.
389
00:16:40.080 --> 00:16:41.310
That that is fair, Your Honor.
390
00:16:41.310 --> 00:16:43.350
I think if you look Craft Beer Guild,
391
00:16:43.350 --> 00:16:45.750
which is cited by both the parties,
392
00:16:45.750 --> 00:16:47.760
talks about the reasons deference are warranted
393
00:16:47.760 --> 00:16:50.910
is experience, technical competence,
394
00:16:50.910 --> 00:16:52.620
and specialized expertise.
395
00:16:52.620 --> 00:16:54.870
Aren't all three of those present here?
396
00:16:54.870 --> 00:16:57.120
Respectfully, Your Honor, I don't think the agency
397
00:16:57.120 --> 00:17:00.120
has a specialized expertise interpreting this.
398
00:17:00.120 --> 00:17:02.109
Interpreting the pension laws?
399
00:17:02.109 --> 00:17:03.660
(Justice Kafker laughs)
400
00:17:03.660 --> 00:17:05.731
We're talking about crab, right?
401
00:17:05.731 --> 00:17:06.744
(Justice Kafker laughs)
402
00:17:06.744 --> 00:17:07.710
Okay, okay.
403
00:17:07.710 --> 00:17:10.913
Yeah, yes, respectfully, our principal argument is that-
404
00:17:10.913 --> 00:17:12.579
I get that.
No deference is warranted
405
00:17:12.579 --> 00:17:15.420
because the interpretation imports a temporal restriction
406
00:17:15.420 --> 00:17:17.430
that is not present in the statute,
407
00:17:17.430 --> 00:17:18.930
which the legislature could have written
408
00:17:18.930 --> 00:17:21.567
into that first sentence of Section 2(f).
409
00:17:22.650 --> 00:17:24.360
Unless there are further questions,
410
00:17:24.360 --> 00:17:26.280
we'll ask for a reversal and rest on our briefs.
411
00:17:26.280 --> 00:17:27.483
Okay, thank you.
412
00:17:30.390 --> 00:17:31.743
Okay, Attorney McLaughlin.
413
00:17:34.920 --> 00:17:36.840
Good morning, just about.
414
00:17:36.840 --> 00:17:37.740
May it please the court,
415
00:17:37.740 --> 00:17:39.630
Anne McLaughlin Assistant Attorney General
416
00:17:39.630 --> 00:17:42.900
on behalf of defendants, appellees, the Commonwealth,
417
00:17:42.900 --> 00:17:45.990
the State Retirement Board and the State Police.
418
00:17:45.990 --> 00:17:48.510
The appellees respectfully request that the court affirm
419
00:17:48.510 --> 00:17:51.360
the Superior Court's decision below and answer the question,
420
00:17:51.360 --> 00:17:53.820
the certified question before it, in the negative.
421
00:17:53.820 --> 00:17:56.910
Section 2(f) of the Paid Family Medical Leave Act
422
00:17:56.910 --> 00:18:01.140
does not provide that employees shall accrue seniority,
423
00:18:01.140 --> 00:18:03.900
length of service credit, vacation, and sick time
424
00:18:03.900 --> 00:18:06.060
while they are out on family medical leave
425
00:18:06.060 --> 00:18:08.160
and that's for three reasons.
426
00:18:08.160 --> 00:18:09.900
First, as Your Honors have recognized,
427
00:18:09.900 --> 00:18:13.830
Section 2(f) has to be read in harmony with Section 2(e).
428
00:18:13.830 --> 00:18:17.550
And Section 2(e) explicitly provides that an employee
429
00:18:17.550 --> 00:18:21.019
who's taken family or medical leave shall be restored
430
00:18:21.019 --> 00:18:25.080
to their previous position with the same status, pay,
431
00:18:25.080 --> 00:18:26.970
employment benefits, length of service credit,
432
00:18:26.970 --> 00:18:30.150
and seniority as of the date of the leave.
433
00:18:30.150 --> 00:18:32.040
So if an employee were entitled
434
00:18:32.040 --> 00:18:35.010
to accrue benefits during the leave,
435
00:18:35.010 --> 00:18:37.590
then they would return from leave with more benefits,
436
00:18:37.590 --> 00:18:40.260
more vacation time, more sick time.
437
00:18:40.260 --> 00:18:43.230
So they would come back with more not the same benefits
438
00:18:43.230 --> 00:18:45.150
as of the date of the leave,
439
00:18:45.150 --> 00:18:47.307
so that would contravene Section 2(e).
440
00:18:48.270 --> 00:18:50.130
So plaintiff's interpretation
441
00:18:50.130 --> 00:18:52.917
would essentially nullify Section 2(e).
442
00:18:53.970 --> 00:18:56.940
The other reason why the certified question
443
00:18:56.940 --> 00:19:00.540
should be answered in the negative is Section 2(f) itself.
444
00:19:00.540 --> 00:19:03.060
And as Justice Wolohojian has recognized,
445
00:19:03.060 --> 00:19:06.090
this language of right to accrue is important
446
00:19:06.090 --> 00:19:09.210
and it's distinctive because it's not accrual.
447
00:19:09.210 --> 00:19:11.790
And this is what the Superior Court recognized as well
448
00:19:11.790 --> 00:19:14.880
because what that right to accrue language means,
449
00:19:14.880 --> 00:19:18.030
is it preserves the employee's benefits.
450
00:19:18.030 --> 00:19:20.760
But let me just play the devil's advocate for a second.
451
00:19:20.760 --> 00:19:23.039
So it could have just written, you know,
452
00:19:23.039 --> 00:19:26.130
as Justice Wolohojian said, we can rewrite it,
453
00:19:26.130 --> 00:19:29.700
the right to vacation time, sick leave, bonuses,
454
00:19:29.700 --> 00:19:31.980
but it wrote the right to accrue,
455
00:19:31.980 --> 00:19:34.260
which is a little different isn't it?
456
00:19:34.260 --> 00:19:39.000
It's kind of odd to formulate this as a right to accrue
457
00:19:39.000 --> 00:19:41.010
when nothing's accruing, isn't it?
458
00:19:41.010 --> 00:19:42.390
Well, I think what that preserves
459
00:19:42.390 --> 00:19:44.970
is the employee's right to accrue on an agreed upon schedule
460
00:19:44.970 --> 00:19:46.380
when they return from the leave.
461
00:19:46.380 --> 00:19:48.630
So what it does is it prevents an employee
462
00:19:48.630 --> 00:19:50.250
from returning from leave,
463
00:19:50.250 --> 00:19:52.830
being restored to their same position with the same benefits
464
00:19:52.830 --> 00:19:54.457
and then their employer telling them,
465
00:19:54.457 --> 00:19:56.190
"Oh by the way, you have to wait six months
466
00:19:56.190 --> 00:19:58.140
before you can start to accrue your benefits again."
467
00:19:58.140 --> 00:19:59.640
That would violate Section 2(f),
468
00:19:59.640 --> 00:20:01.350
it wouldn't necessarily violate Section 2(e).
469
00:20:01.350 --> 00:20:03.270
That'd violate all kinds of other laws too?
470
00:20:03.270 --> 00:20:04.680
It very well might but it certainly...
471
00:20:04.680 --> 00:20:06.948
That's a scenario that shows that 2(e) and 2(f)
472
00:20:06.948 --> 00:20:08.970
are dealing with two different scenarios.
473
00:20:08.970 --> 00:20:11.430
And I think the second sentence of 2(f)
474
00:20:11.430 --> 00:20:13.980
with the legislature specifically called out
475
00:20:13.980 --> 00:20:16.620
during the duration of the leave,
476
00:20:16.620 --> 00:20:18.150
the employer will continue to provide
477
00:20:18.150 --> 00:20:20.460
for health insurance benefits.
478
00:20:20.460 --> 00:20:23.700
So the legislature specifically contemplated
479
00:20:23.700 --> 00:20:26.970
what benefits were going to continue during the duration
480
00:20:26.970 --> 00:20:29.250
and it only called out health insurance benefits.
481
00:20:29.250 --> 00:20:31.350
It did not call out any other benefits.
482
00:20:31.350 --> 00:20:33.180
You have the problem that you're missing
483
00:20:33.180 --> 00:20:37.590
a temporal limitation in the first sentence of 2(f) though.
484
00:20:37.590 --> 00:20:39.780
I would agree there's not a temporal limit,
485
00:20:39.780 --> 00:20:40.613
there's not a...
486
00:20:40.613 --> 00:20:41.590
It doesn't say exactly-
Or wouldn't say limitation-
487
00:20:41.590 --> 00:20:42.423
When that rate triggered.
488
00:20:42.423 --> 00:20:45.420
Maybe marker, so a temporal indication
489
00:20:45.420 --> 00:20:48.150
as to what's to happen.
490
00:20:48.150 --> 00:20:50.040
It certainly, it seems to me a plausible...
491
00:20:50.040 --> 00:20:52.380
That the agency's interpretation
492
00:20:52.380 --> 00:20:55.350
is certainly a plausible interpretation
493
00:20:55.350 --> 00:20:58.800
but it's not driven by the plain language here, I think,
494
00:20:58.800 --> 00:21:02.837
because the plain language is missing a temporal marker.
495
00:21:05.580 --> 00:21:06.413
Your Honor, you're right.
496
00:21:06.413 --> 00:21:08.550
It doesn't say when that right to accrue is triggered.
497
00:21:08.550 --> 00:21:12.120
The agency has interpreted it as upon reinstatement,
498
00:21:12.120 --> 00:21:13.966
when the employee returns.
499
00:21:13.966 --> 00:21:18.150
But I think reading 2(f) in harmony with 2(e),
500
00:21:18.150 --> 00:21:20.040
that requires the employee to come back
501
00:21:20.040 --> 00:21:23.880
with the same benefits as of the date of the leave,
502
00:21:23.880 --> 00:21:26.160
reading those two in harmony in conjunction
503
00:21:26.160 --> 00:21:28.260
with that second sentence about health insurance,
504
00:21:28.260 --> 00:21:29.730
specifically called out for during
505
00:21:29.730 --> 00:21:30.925
the duration of the leave,
506
00:21:30.925 --> 00:21:34.590
makes clear that holistically that's how Section 2(f)
507
00:21:34.590 --> 00:21:35.423
should be interpreted.
508
00:21:35.423 --> 00:21:38.010
But then why wouldn't they have used the word restored
509
00:21:38.010 --> 00:21:40.263
in 2(f) as opposed to affect?
510
00:21:41.520 --> 00:21:43.200
That I don't know, it's a good question.
511
00:21:43.200 --> 00:21:45.500
And let's assume that choice was deliberate.
512
00:21:46.530 --> 00:21:48.300
I don't think that choice was deliberate
513
00:21:48.300 --> 00:21:50.280
for all the other reasons that I've mentioned.
514
00:21:50.280 --> 00:21:52.290
When you look at 2(f) with 2(e),
515
00:21:52.290 --> 00:21:54.570
because if you were to read 2(f) as allowing the...
516
00:21:54.570 --> 00:21:57.300
Or entitling the employee to accrue benefits
517
00:21:57.300 --> 00:22:00.090
during the leave, then that can't be squared
518
00:22:00.090 --> 00:22:03.600
with Section 2(e), which says the employee comes back
519
00:22:03.600 --> 00:22:06.540
with the same benefits as of the date of the leave.
520
00:22:06.540 --> 00:22:08.100
So if you're accruing during the leave,
521
00:22:08.100 --> 00:22:10.050
you're coming back with more benefits,
522
00:22:10.050 --> 00:22:13.020
vacation time, sick time, seniority, et cetera.
523
00:22:13.020 --> 00:22:15.360
So that's the only reading that squares
524
00:22:15.360 --> 00:22:17.640
and harmonizes all of the provisions.
525
00:22:17.640 --> 00:22:20.070
And this is a reasonable interpretation
526
00:22:20.070 --> 00:22:21.480
of the agency's regulations.
527
00:22:21.480 --> 00:22:23.700
And because it is a reasonable interpretation,
528
00:22:23.700 --> 00:22:25.290
those are entitled to deference.
529
00:22:25.290 --> 00:22:28.380
They were duly promulgated by the department.
530
00:22:28.380 --> 00:22:30.510
They are presumptively valid
531
00:22:30.510 --> 00:22:32.160
and they can only be struck down
532
00:22:32.160 --> 00:22:34.380
if under no reasonable construction
533
00:22:34.380 --> 00:22:37.710
they can be interpreted in harmony with the statute
534
00:22:37.710 --> 00:22:39.060
and they certainly can.
535
00:22:39.060 --> 00:22:41.730
Was there any legislative history here
536
00:22:41.730 --> 00:22:46.140
saying something like, "Hey, you're off, you're on leave,
537
00:22:46.140 --> 00:22:48.090
you shouldn't be getting more.
538
00:22:48.090 --> 00:22:49.800
You shouldn't be accruing sick leave time
539
00:22:49.800 --> 00:22:53.010
when you're basically taking care of a sick person
540
00:22:53.010 --> 00:22:53.843
and not at work."
541
00:22:53.843 --> 00:22:55.080
And was there anything...
542
00:22:55.080 --> 00:22:56.970
Any legislative history that's useful?
543
00:22:56.970 --> 00:22:58.140
There's none that I was able to find
544
00:22:58.140 --> 00:22:59.447
on this particular point.
545
00:22:59.447 --> 00:23:01.110
Okay.
546
00:23:01.110 --> 00:23:02.430
But again, I think what's clear
547
00:23:02.430 --> 00:23:06.000
is 2(e) working in conjunction with 2(f),
548
00:23:06.000 --> 00:23:10.500
as well as in harmony with the regulations themselves.
549
00:23:10.500 --> 00:23:12.930
So essentially what happens under the statute
550
00:23:12.930 --> 00:23:15.330
is that there is a pause in benefits.
551
00:23:15.330 --> 00:23:16.740
The employee goes out on leave,
552
00:23:16.740 --> 00:23:18.030
all of their benefits pause,
553
00:23:18.030 --> 00:23:20.040
their seniority, vacation time, sick time.
554
00:23:20.040 --> 00:23:23.460
Then they return and their benefits are the same
555
00:23:23.460 --> 00:23:25.050
as when they left and then they resume,
556
00:23:25.050 --> 00:23:29.010
their right to accrue continues upon their return.
557
00:23:29.010 --> 00:23:31.890
And that, as I've discussed, is a reasonable interpretation
558
00:23:31.890 --> 00:23:34.080
of the statute by the regulations.
559
00:23:34.080 --> 00:23:37.980
Do you happen to know how many other states
560
00:23:37.980 --> 00:23:42.630
have similar acts and how the language of 2(f)
561
00:23:42.630 --> 00:23:45.300
compares with any comparable provisions
562
00:23:45.300 --> 00:23:46.830
in those other state's laws?
563
00:23:46.830 --> 00:23:47.760
I don't other...
564
00:23:47.760 --> 00:23:49.950
There's a myriad of of paid leave laws
565
00:23:49.950 --> 00:23:51.390
across the Commonwealth.
566
00:23:51.390 --> 00:23:53.850
I don't know what other state statutes can say.
567
00:23:53.850 --> 00:23:57.540
All I can say is that the federal version is the same
568
00:23:57.540 --> 00:24:00.158
in that you don't accrue benefits while you're on leave.
569
00:24:00.158 --> 00:24:02.730
Right but it doesn't use the right to accrue language.
570
00:24:02.730 --> 00:24:03.563
That is correct.
571
00:24:03.563 --> 00:24:05.160
So do you know if the right to accrue language
572
00:24:05.160 --> 00:24:07.110
is used in any other states?
573
00:24:07.110 --> 00:24:07.943
I am not...
574
00:24:07.943 --> 00:24:08.776
I do not know.
575
00:24:08.776 --> 00:24:10.440
So we don't know whether that phrase
576
00:24:10.440 --> 00:24:12.930
has been construed anywhere else?
577
00:24:12.930 --> 00:24:13.763
That is correct.
578
00:24:13.763 --> 00:24:15.780
In other states, I don't know if it has been.
579
00:24:16.920 --> 00:24:19.020
Again, I think holistically with the statute,
580
00:24:19.020 --> 00:24:23.550
the plain mean is clear as I said, along...
581
00:24:23.550 --> 00:24:25.983
Also in harmony with the regulations.
582
00:24:27.270 --> 00:24:28.380
I know it's been a long morning.
583
00:24:28.380 --> 00:24:30.960
Unless there are any other questions,
584
00:24:30.960 --> 00:24:33.363
I'm happy to rest on my briefs.