In late February, we alerted you to the General Court’s efforts to pass legislation designed to strengthen penalties imposed on employers by reinstating automatic treble damages for employees who prevail in wage and hour lawsuits against their employers. (See Feb 27 and Feb 29 blog entries). We’re pleased to tell you that the legislation has now become law, taking effect on July 13.

As we noted earlier, the Governor refused to sign the legislation after it was first passed, instead sending it back to the legislature with a request that the law be watered down in favor of employers. Both houses of the General Court quickly rebuffed the Governor’s attempt to weaken the law and returned it to him without change. The Governor therefore had to veto it, sign it, or do nothing, which will cause it to become law. He chose the third, and the bill has now become law because Patrick failed to sign it or veto it.

The law reaffirms that the legislature intended for employers to pay treble damages when they break the law. That intent was questioned by the Supreme Judicial Court three years ago, when the court instructed judges to examine whether the violation was intentional before deciding on damages. Efforts to “fix” the SJC’s interpretation were launched almost immediately, but failed under the Romney administration. The legislature is to be commended for not letting the issue go, and for standing up strongly in support of workers who face unlawful actions by their employers.

The Supreme Judicial Court has unanimously confirmed the general “coming and going” rule that most Massachusetts workers are not entitled to workers compensation benefits for injuries suffered while traveling to or from work, even when the injury is caused by work-induced fatigue. The case is another example of the SJC’s indifference to the plight of the modern employee.

The decision, Michael Haslam’s Case, SJC-09915 (April 8, 2008) [http://socialaw.org/slip.htm?cid=18071&sid=120], concerns Michael Haslam, a carpenters’ foreman, who was assigned to the the Big Dig project. When Haslam completed his regularly scheduled 5 a.m.-3:30 p.m. shift, the major assignment that day – pouring concrete – had not even started. A carpenter needed to be present when the concrete finally was poured, and Haslam believed he would be fired if he left the work site prior to the task’s completion. Therefore, he worked until 8:15 a.m. the next day, when the project finally was complete. Exhausted from a 27-hour work day, Haslam tragically fell asleep while driving home and crashed into a utility pole.

The Division of Industrial Accidents granted benefits, but the SJC overturned DIA’s decision. Critical to the SJC’s analysis was the “voluntary” nature of the foremen’s overtime assignment: the foreman was not personally obliged to work overtime (the union contract arguably prohibited mandatory overtime), and the foreman never sought someone else to complete the assignment. In other words, the SJC blamed the foreman for his exhaustion and placed no duty on his Employer to ensure that employees are not exploited or overworked. The Court did not seem to acknowledge the modern-day work environment where people labor under significant, although unwritten, expectations of performance and the Court failed to grant much weight to the benefit derived by the Employer from the foremen’s continued work.

In deciding whether the exhaustion is caused by work, the SJC basically asked whether a “reasonable person” would perceive the overtime assignment as excessive and mandatory, not whether the injured employee felt that such work was excessive or mandatory. For instance, the SJC noted that 27 hours of work would not generally be considered excessive for a firefighter assigned to 24-hour shifts.

The SJC noted a number of injuries that may compel a grant of workers’ compensation benefits, even if the injury occurs while the employee is traveling between home and work, such as: exhaustion caused by excessive amount of mandatory overtime; injury arising from a “special trip” by the employee made at the request or benefit of the employer (such as attendance at an off-site mandatory meeting; or working an overtime shift during inclement weather). Interestingly, the SJC seemed to be more sympathetic to injuries suffered while en route to work, as opposed to injuries suffered while returning home.

As a result of this decision, employees who work a lot of overtime should, prior to working beyond a normally scheduled shift, try to establish whether the employer is mandating that the employee perform the extra work.

The SJC’s decision does not automatically apply to claims for injured-on-duty pay by public safety officers, which are covered under a different statute, G.L. c.41, §§100, 111F, and typically are resolved via labor arbitration. Moreover, Massachusetts courts have suggested that police officers are “traveling workers” who are exempt from the “coming and going” rule. Under court cases and arbitration decisions involving §111F, police officers in particular have had greater success in having injuries incurred while “coming or going” to be recognized as work related, especially where: the officer is subject to a Department rule mandating that s/he act appropriately on and off-duty; the officer is available to respond to calls for public safety at the time of the injury; the officer is traveling a direct route between work and home; and the officer is paid a basic weekly wage regardless of actual hours worked. See, e,g., Wormstead v. Saugus, 366 Mass. 659 (1975) (officer who was injured while returning from paid lunch break and remained on call is entitled to benefits under §111F); Gardner v. Peabody, 23 Mass.App.Ct. 168 (1986) (officer injured on en route to work after being ordered to report was entitled to 111F benefits).

Early Wednesday morning, more than 70 percent of the 100 production and technical workers at Boston’s FOX25 (WFXT) television station overwhelmingly voted to join Local 1228, International Brotherhood of Electrical Workers. Local 1228 is one of the largest unions in New England representing workers in the broadcast industry, and has been a client of Sandulli Grace since the firm was founded by Joe Sandulli over thirty years ago. Local 1228 represents workers at television and radio stations throughout New England, and has long represented technical and production workers at WBZ (CBS), WCVB (ABC) and WHDH (NBC) in Boston. With the addition of FOX25, Local 1228 now represents employees at all 4 Boston network affiliates.

In early March, Local 1228 petitioned the National Labor Relations Board to confirm that a majority of technical employees at FOX25 wanted a union. Once the station learned of the worker’s intent to unionize, it engaged in a campaign against unionization through memos, staff meetings, and one-on-one sessions. To the station’s credit, while it urged workers not to unionize, it did not appear to engage in any illegal efforts to suppress the workers’ rights. Despite the station’s efforts, the workers remained united in their desire to join together. In addition, Local 1228 and the workers remained in constant contact, quickly responding to any anti-union memos with the facts about the benefits of unionization.

After agreeing with Local 1228 and Fox on the job titles and employees who get to vote, the NLRB scheduled the election for April 8. The bargaining unit is comprised of exactly 100 employees, including engineers, master control operators, editors, tape coordinators, photographers, van technicians, production technicians, Chyron operators, audio engineers, studio camera operators, jib and robotic camera operators, studio technicians, technical directors and directors. In order to ensure that all employees had a chance to vote, the NLRB conducted four separate voting periods, and the election actually extended into April 9, with the final voting period ending at 12:15 a.m. Stunningly, 97 of the 100 eligible voters cast a ballot.

After the close of voting at 12:15 a.m., Wednesday, April 9, representatives of Local 1228, FOX25 management, and about 20 excited FOX25 workers gathered in the “old studio,” where the vote was held, to watch an NLRB agent count the ballots. The excitement in the room was electrifying as the pile of “Yes” votes quickly grew. The final vote count was 70 votes for Local 1228 and only 27 votes for no union, a greater than 2-1 margin of victory! Unless Fox files objections to the election, the NLRB will certify Local 1228 as the democratically-elected collective bargaining representative of workers at FOX25.

Now that the employees at FOX25 have come together and gained a voice in their workplace, the real work begins. Local 1228 will work closely with its new members to develop proposals for an initial collective bargaining agreement. During the campaign, FOX25 committed that it would bargain in good faith with the union if the workers voted to unionize. Local 1228 is excited to begin the process of improving the working conditions of its newest members and to bring them in line with other Local 1228 members. And we here at Sandulli Grace remain honored to with work Local 1228, and are ready to assist the Local and its members as they move forward at FOX25 and beyond.

The Massachusetts Appeals Court has ruled that the City of Boston Police Department may have violated state anti-discrimination law by unilaterally eliminating rank-specific locker rooms in response to complaints by female ranking officers about inadequate accommodations. Sandulli Grace Attorney Patrick N. Bryant filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc., which supported the Boston Police Superior Officers Federation’s challenge to elimination of longstanding locker room arrangements.

In the case of King & BPSOF vs. Boston, 06-P-1013 (March 28, 2008) (http://socialaw.org/slip.htm?cid=18022&sid=119), female superior officers for the Boston Police Department requested that they be provided access to rank-specific, female locker rooms, as enjoyed by male ranking officers. Many BPD district stations offer rank-specific locker rooms for male officers and not female officers. After several superior officers complained about the disparate accommodations (the BPD offered a locked closet space as one alternative), the BPD sought to eliminate all rank-specific locker rooms at all district stations. This move was jointly opposed by the BPPA and BPSOF. The day after the superiors union filed a complaint with the Massachusetts Commission Against Discrimination, the BPD ordered the closure of all rank-specific locker rooms, including male and female. The superiors union amended its complaint to include charges of retaliation. After the superiors union moved for an injunction, the BPD agreed to halt locker room changes for the time being.

The Appeals Court ruled that the BPSOF produced enough evidence to go to trial against the City. The Appeals Court agreed with Plaintiffs that rank-specific, gender-specific locker rooms may be an important condition of employment. As the court ruled:

Separate locker rooms alleviate potential tensions between superior officers and the patrol officers whom they are required to supervise and discipline. They provide also a psychological buffer zone for patrol officers who use their locker rooms as a place to decompress, without official scrutiny, after performing a shift that can be stressful and intense. Locker rooms may be a significant location for union organizing and collective action, a particularly relevant factor in this instance given that patrol officers and superior officers are members of different unions.

The Court ruled that the Plaintiffs also produced enough evidence that the BPD illegally retaliated against female officers and the BPSOF when it made changes to locker rooms. Significantly, the Court agreed that the filing of a grievance about discriminatory treatment is “protected activity” under anti-discrimination law. Further, the BPD’s decision to eliminate rank-specific locker rooms after a newspaper article about the lawsuit created an inference that the decision was intended to retaliate against BPSOF.

Technically, the Appeals Court decision occurred at the Summary Judgment stage of litigation, meaning that the Court did not necessary agree that the locker rooms were a material condition of employment or that the BPD’s actions were illegally motivated. By denying Summary Judgment to the BPD, the Court essentially ruled that Plaintiffs produced enough evidence for a jury to decide the legality of BPD’s actions.

In an extraordinary rebuke of the Republican-dominated National Labor Relations Board, a panel of the U.S. Court of Appeals for the Second Circuit has struck down a vague “no harassment” policy implemented by an employer during an acrimonious union organizing campaign.

In UAW v. NLRB, (March 20, 2008), a Connecticut automobile plant responded to a UAW organizing campaign by threatening to fire employees that even talked about the union during work time, and by implementing a vague “no harassment” policy intended to thwart union organizing. On review, the NLRB agreed that employer policies that prohibit discussions or solicitations regarding unionization during working hours are illegal.

While federal courts typically defer to the decisions of administrative agencies such as the NLRB, the Second Circuit reversed the NLRB’s conclusion that the announcement of a “no harassment” policy was not illegal. The employer defended the “no harassment policy” as addressing reported intimidation and vandalism at the plant. However, the Second Circuit reminded the NLRB that the employer’s intentions behind the policy are irrelevant, as it is necessary to consider how a reasonable employee would interpret a “no harassment” policy. Here, the Second Circuit ruled, a reasonable person would interpret such a policy as prohibiting union organizing, given that the employer already implemented a policy expressly prohibiting union organizing.

Unfortunately, as an example of federal law’s bias toward employers, the Second Circuit upheld the NLRB’s ruling that the employer’s fearmongering – regularly characterizing the Union as violent, strike-happy, pervaded by “violence, threats, intimidation and [ ] death” – was not illegal.

Read the decision