Riding the media tidal wave of hostility toward public safety employees receiving workers compensation-type benefits, the Appeals Court of Massachusetts has ruled that a police dispatcher permanently disabled from her job as a result of unsolicited roughhousing at work by a police officer is ineligible for an accidental disability retirement.

In Damiano v. CRAB , 07-P-520 (July 23, 2008), a dispatcher got up from her seat intending to use the restroom and grab work-related forms. As she rose, a police officer jokingly placed her in a headlock and then dragged her eight feet. This action resulted in two employees falling against the wall and the floor. The dispatcher injured her wrist and elbow, which never fully recovered. She never returned to work as a result of the injuries from this incident.

Under Massachusetts General Laws, Chapter 32, §7, public employees are entitled to an accidental disability retirement if they are “unable to perform the essential duties of [their] job by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, [their] duties at some definite place and at some definite time ….” Accidental disability retirees are eligible for 72 percent of their salary for the duration of their permanent disability. In exchange for this payment, these retirees are barred from full-time jobs in the Massachusetts public sector, and also face limitations on what they can earn from outside work.

In the new case, the Appeals Court narrowly interpreted the phrase “in the performance of duty” to deny disability benefits to the dispatcher. Although the dispatcher was working at the time of the injury, was in no way at fault for the injury, and was engaging in conduct permitted by the employer, the Court held that she was not performing actual productive work in a traditional sense and therefore cannot receive accidental disability retirement. The Court seemed to acknowledge that her injury qualified for workers compensation benefits, but stated there is a higher standard of proof to qualify for accidental disability retirement.

The Court seemingly adopted a narrow view of the occasionally mundane day-to-day responsibilities of public safety employees. The Court associated work-related disability incidents with the public safety heroics popularized by the media:

A firefighter who is injured while rushing into a burning building, or fighting a fire, as well as the police officer who is injured while directing traffic, or apprehending a fleeing felon, can easily be understood to have been injured while ‘in the performance of’ duties undertaken on behalf of the public.” The same cannot be said of the dispatcher.

One wonders if the court will recognize the benefits intended by the Legislature to employees injured (for whatever reason) while completing a report, cleaning department equipment, or performing any of the many incidental, unglamorous but indispensable tasks of public safety work. In the future, retirement boards and courts will need to be educated about what actual public safety work entails, and claimants for accidental disability retirement will need to emphasize the key job functions they performed at the time of the injury.

Most employees, public and private, are entitled to overtime compensation under the Federal Labor Standards Act (FLSA) for every hour actually worked beyond 40 hours in a seven-day period. As another needless reminder of the second-class status of police officers and firefighters, Congress permits public safety employers to pay less overtime so long as the employer adopts a “partial overtime exemption,” under the FLSA (commonly known as a “§207(k)” work period,” in reference to the relevant section of the Act). Where a public safety employer lawfully adopts a §207(k) work period, police officers may not be entitled to FLSA overtime unless they work 171 actually hours in a 28-day work period, while firefighters may not receive FLSA overtime until they actually work 212 hours within that same period. Considering that paid leave time (sick, vacation, etc) does not count toward the 171 or 212 hours, public safety officers are functionally denied the benefits of the FLSA through this exemption.

As a credit to the strength of union solidarity and collective action, most labor contracts provide overtime compensation in more circumstances than the minimum required by the FLSA. However, the FLSA overtime rate, when applicable, frequently is more generous than labor contract rates, because the FLSA rate must include many differentials, stipends, etc. That’s why the issue of whether an employer properly adopted a §207(k) work period is the most critical piece of FLSA litigation involving police and firefighters. Sandulli Grace, P.C. (on behalf of its client the Boston Police Patrolmen’s Association, Inc.) won a landmark decision , when the Labor Relations Commission (now the Commonwealth Employment Relations Board), ruled that the voluntary adoption of a partial overtime exemption under §207(k) is a mandatory subject of bargaining and cannot be unilaterally implemented by the employer. The City of Boston has appealed this decision, and it is now pending before the Supreme Judicial court.

In O’Brien v. Town of Agawam (on which Sandulli Grace, PC, while not directly involved. consulted on the briefs), the U.S. Circuit of Court of Appeals ruled that the §207 work period does not apply in the case of a 4-and-2 schedule, absent an affirmative adoption of this partial overtime exemption by the employer. In O’Hara v. Menino, Sandulli Grace leveraged the O’Brien decision to impose damages against the City of Boston, based upon a 40-hour work period. In neither case did the employer purport to affirmatively adopt a valid §207(k) work period.

We now are seeing cases litigating whether and when an employer lawfully adopted the partial overtime exemption. In Calvao v. Framingham, (July 3, 2008) , a class action involving Framingham police officers, the Federal Trial Court in Massachusetts affirmed that a §207(k) exemption applies only if the employer adopts an applicable work period (or there exists a regular, recurring work period consistent with §207(k), AND it takes affirmative steps to implement this period). In Calvao, the Court ruled that a Town Administrator’s memo adopting a period sent to the Police and Fire Chiefs and Town Counsel was sufficient to adopt a period, even though the former Town Counsel and Administrator had no memory of the memo and the work period was inconsistent with the terms of the collective bargaining agreement and Town Bylaws. Finally, the Court suggests that an employer adequately implements a §207(k) work period, simply by distributing the memorandum periodically and filing it in relevant places, even if the employer apparently never actually complied with the memo or applied a §207(k) work period.

The Calvao decision was issued by a federal trial judge and may be appealed to the U.S. First Circuit Court of Appeals. It also is possible for another federal trial judge in Massachusetts to adopt a different interpretation of the law on the same issue. (Massachusetts federal trial judges have issued differing interpretations of FLSA before).

At first glance, the Supreme Judicial Court’s decision in Sheriff of Suffolk County v. Jail Officers and Employees (http://socialaw.org/slip.htm?cid=18288&sid=120, decided June 23, 2008), which upholds an arbitrator’s reinstatement of a public employee, is unremarkable. Unfortunately, the Court’s reasoning and commentary in the case signal a shift in the law away from unions and the finality of the arbitration process.

As discussed in an earlier blog entry , the SJC granted further review of an Appeals Court decision upholding an arbitrator’s award. The case involved a county jail guard who allegedly witnessed the beating of an inmate and was not fully forthcoming about the incident. After the sheriff fired the guard, his union filed a grievance and an arbitrator reduced the discipline to a six-month suspension. The sheriff appealed and lost at the Superior Court and Appeals Court levels.

The SJC upheld the award too, but only because it could not determine from the arbitrator’s award whether the arbitrator had found the officer had lied. Because the arbitrator had died, there was no way to remand for further findings. But the Court went out of its way to comment that, if the arbitrator had found that the guard had lied, then the reinstatement would have violated public policy. According to the decision, which was written by SJC newcomer Justice Margot Botsford:

In a situation where a jail officer actually witnesses fellow officers assault an individual who is held in the sheriff’s custody, and then lies about this fact and files false reports that memorialize the falsity, we have little doubt that established public policy would condemn such conduct and would require the discharge of such an officer.

Sheriff of Suffolk County, at page 3.

The SJC’s decision raises several serious concerns. First, there is no basis in the law for the Court to order a remand on the basis that the findings of fact are “ambiguous” or “not sufficiently clear.” Modification and correction of awards are allowed only under certain circumstances, such as when an award “is so indefinite or incomplete that it cannot be performed,” G.L. c. 150C, § 8, or there is “an evidence mistake in the description of any person, thing or property referred to”, or the award is “imperfect in a matter of form.” G.L. c. 150C, § 12(a). The Court may only order a rehearing under narrow circumstances, including a finding that the arbitrator has exceeded his authority. So, even if the arbitrator were still alive, a remand would have been improper.

Second, and more importantly, the Court’s casual statement of the consequences if the officer had been found to lie, if adopted as law, would expand the public policy exception dramatically. The controlling case is City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), in which an arbitrator concluded that a discharged Boston Police officer lied about being assaulted by two citizens, brought false charges against the citizens and testified consistently (and untruthfully) that he had been assaulted. The arbitrator nonetheless reinstated the officer with a one-year suspension, based upon several factors, including the City’s treatment of officers committing similar or worse misdeeds. The SJC vacated the arbitration award on the grounds that it violated public policy. The SJC articulated the three-part test for the public policy exception: (1) the award violates a public policy that is defined by laws, regulations or statutes, not general ideas about right and wrong; (2) the employee’s conduct goes to the very heart of his employment duties; and (3) the public policy requires termination – no other discipline is sufficient. The Court in the City of Boston case held that the officer engaged in on-duty misconduct that involved multiple lies, perjuries and false reports, and that these actions amounted to several felonies under state law (even though the officer was never even charged with a crime). Because state law prohibits felons from serving as police officers, the Court determined that the public policies embodied in those statutes required termination of the officer.

In the Sheriff of Suffolk County case, the Court ignores key aspects of the test for finding a public policy exception. It appears to rely on allegations of on-the-job lying and false reports as the common link with the City of Boston case. But that is not enough under the SJC’s previous decision. The Sheriff of Suffolk County decision identified no statutes, regulations or laws that specifically define the public policy that the jail guard’s behavior violates. Worse, the Court did not show why termination was required by the public policy, as opposed to merely desired or permitted. Unlike the City of Boston case, the SJC’s decision here contains no reference to any statute requiring the termination of jail guards who commit felonies.

The SJC’s comments about the results of the public policy test are not necessarily binding on later decisions, but they may be a warning sign of things to come. As in previous cases, the SJC gives lip service to the notion that the parties have bargained for the arbitration award and it should not be touched. Unfortunately, in practice, judges are more than willing to second guess the arbitrators when a decision rubs them the wrong way.

One very practical result of the SJC’s decision is its recognition that those who witness bad behavior and engage in a cover-up are likely to be treated the same as those who commit the misconduct. Lawyers, doctors and other professionals already operate under rules that require them to report colleagues who engage in misconduct. It is not surprising, then, that these principles are being enforced in other areas. All employees, especially those in positions of public trust, should make every effort to avoid misstatements. Telling the truth, the whole truth and nothing but the truth is not only the right thing to do – it could save your job.
Of course, as Pilate famously said, “What is truth? We both have truths – are mine the same as yours?” The issue of truth vs. lies is more complicated that management might see it. Some would classify the failure to report another’s wrongdoing in a different category from the affirmative statement of a falsehood. Furthermore, not every misstatement is intentional, and not every intentional misstatement is material. (Compare these lies: “I didn’t take the money” and “I played on my high school basketball team.”) But don’t be surprised if employers cite this decision to support the idea that any misstatement (whether or not intentional, whether or not material) is grounds for termination.

Finally, a word of caution: While ‘the truth, the whole truth, and nothing but the truth’ may be the proper route in many if not most situations, the federal and state constitutions provide protections for public employees who are accused of misconduct that could lead to criminal charges. Consult with your personal or union attorney to find out when the best approach is to invoke your right to remain silent.