All posts by Jennifer Smith

Is the Tide Turning for Organized Labor?

Although union membership continues to decline (only about 7% of private sector workers are union members and 36% of public sector employees are union members according to the US Department of Labor Bureau of Labor Statistics), in the face of growing income inequality, and stagnant wages, it appears that organized labor may soon be facing a resurgence.

Union advocates have long known and promoted the fact that belonging to a union makes a powerful difference in people’s lives, for example, unionized workers have median weekly earnings of $970 compared with $763 for workers not in a union. Nevertheless, the clear utility of unions in narrowing income inequality has gone unheeded for decades, but the tide may be turning. A new poll by the National Employment Law Project, reports that 72% or workers who make less than $15 an hour support unions. Remarkably a recent Gallup poll that found that 58% of the general population support unions. Majority support for organized labor might seem far-fetched – but an incredible 42% of ALL workers in the United States make less than $15 an hour.

The 78% of workers making less than $15 an hour who support organized labor aren’t just paying lip service to collective action, they’re looking to make their voices heard in Massachusetts. On October 13, 2015, a coalition organized by Raise Up Massachusetts and #WageAction are sponsoring a day of Action at the Massachusetts State House. While the legislature begins hearings on a number of bills protecting and promoting workers, the workers will be agitating and lobbying in support of their goals. Will you join them?

More information about the day of action can be found here: http://wageaction.org/fight-for-15-at-the-massachusetts-state-house/#.VhwP8vlVhBd

  #wageaction

 

Legal Update: New Changes for Parental Leave

Many workers in Massachusetts do not qualify to take leave under the Family Medical Leave Act (“FMLA”).[1]  Yet, at the same time, in a country where automatic leave to attend to the birth or adoption of child is rare, millions of employees rely on the FMLA to guarantee that their jobs will be available when they return work.

The Massachusetts Maternity Leave Act (MMLA), applies only to employees working in the Commonwealth, and was designed to fill in some of the FMLA’s coverage gaps for Massachusetts workers. This week new amendments expanded, clarified, and renamed the MMLA, “the Parental Leave Act.”  Besides the snazzy gender neutral name, there are two big changes to the act: Continue reading

Social Media Will Ruin Your Whole Life

An in-depth examination of the career-crushing power of social media in the New York Times Magazine last month, “How One Stupid Tweet Blew Up Justine Sacco’s Life,” (http://nyti.ms/1FC8BfG), illustrates just how fatal off-hand remarks (or ill-advised photos) on social media platforms (Twitter, Facebook, Instagram, Tumblr, Pintrest, Imgur, Yelp, Google+, and so on) can be. Continue reading

If You Don’t Have Anything Nice to Say . . .

If You Don’t Have Anything Nice to Say . . .

Like many people nowadays, Natalie Munroe had a blog where she shared tips about cooking and child rearing.  The high school English teacher from Doylestown, PA, also used her blog to sound off about her students, referring to them as “jerks,” “rat-like,” and “frightfully dim.”  Her students’ parents fared no better on her blog; she wrote that parents were “breeding a disgusting brood of insolent, unappreciative, selfish brats.”  In one post, Munroe made a list of comments she wished she could write about her students including “a complete and utter jerk in all ways,” “though academically ok, your kid has no other redeeming qualities,” “liar and cheater,” and “utterly loathsome in all imaginable ways.”

Students started sharing the blog posts on social media.  Once the school administration caught wind of the blog in February 2011, Munroe was placed on an immediate, unpaid suspension.  By that time Munroe’s plight had been covered by several major news outlets and her appearances on television did nothing but fan the flames.  After taking a maternity leave for the rest of the semester, Munroe returned to work in August 2011.  In the meantime, she received her first-ever negative performance evaluation from the Superintendent.  She continued to receive negative evaluations after her return to work and was required to submit overly detailed lesson plans.  Munroe was terminated on June 26, 2012 for her supposed poor performance and she filed suit alleging that the school district retaliated against her for her exercise of her First Amendment rights.

In Munroe v. Central Bucks School District, the U.S. District Court for the Eastern District of PA granted summary judgment to the school district on July 25, 2014, meaning that Munroe could not pursue her case.  It is well settled that a public employee’s speech is protected when he or she speaks as a private citizen upon a matter of public concern and the employee’s interest in exercising his or her First Amendment rights is greater than the employer’s interest in the efficient operation of the public agency.  Unfortunately for Munroe, the court found that while her blog occasionally touched upon matters of public concern, the harm caused by the blog’s “personal invective” outweighed the potential public value of her other posts.  The court noted that Munroe’s speech, “in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her expression was not protected.”  The lesson for public employees here is that if you want to join the blogosphere, stick to sharing your best zucchini bread recipes.

Jamie Goodwin Recognized as HLA Lawyer of the Month

Sandulli Grace’s Jamie Goodwin

Sandulli Grace, PC is very proud to announce that Jamie Goodwin was recognized as the Health Law Advocates’ “Lawyer of the Month” for the outstanding representation he has provided through the HLA’s pro bono legal network.

Health Law Advocates is a 501(c)(3) public interest law firm whose mission is to provide pro bono legal representation to low-income residents experiencing difficulty accessing or paying for needed medical services.  The work Jamie does for the HLA provides life-sustaining assistance to vulnerable clients to help them avoid financial catastrophe.

If you would like to learn more about the HLA, and their immeasurably critical work, please visit their website, here: http://www.healthlawadvocates.org/.  Below, you can learn more about Jamie’s efforts for the HLA, as described in the July 14, 2014 HLA Legal Network Update.

 Attorney Goodwin of Sandulli Grace, P.C. has been an All-Star since joining HLA’s Pro Bono Legal Network in 2012. Over the past few years Jamie has continuously taken on referrals and is currently working on his fifth matter from HLA.

A specialist in Labor Law, Jamie’s efforts have helped clients with both public and private insurance to breakdown barriers from employers, insurers and providers, and get his clients the services they deserve.

In 2013, Attorney Goodwin was successful in restoring full nursing services for KB, a severely disabled 17-year-old girl, after her state subsidized insurance reduced both the hours and level of her care.

His dedication to helping the community goes beyond his work with HLA’s Legal Network. Attorney Goodwin also volunteers several nights a week teaching English at Rosie’s Place. Thank you for your outstanding support and contribution to the Legal Network, and most importantly to our clients.  Congratulations on being named this month’s Lawyer of the Month!

That’s a Bad Use of Your Cell Phone

A new tumblr that began in July 2013 is growing in popularity and unfortunately it is mocking public safety officers all over the world.  http://copselfies.tumblr.com/ If you’re unfamiliar with the concept of a “selfie” (http://en.wikipedia.org/wiki/Selfie) basically it’s a digital self-portrait (that is almost universally embarrassing and ridiculous). Copselfies twists the mostly harmless and inane practice by reposting selfies of police officers in uniform.

Needless to say, if you are a police officer, taking a selfie in uniform might violate your department’s internet policy or social media policy, as would texting or emailing your selfie to your sweetie, or posting it on your facebook/twitter/tumblr.

It isn’t clear where Copselfies are getting these pictures.[1]  But it is clear that the people behind it are no friends of law enforcement.  The bottom of every page features a quote by Evan Calder Williams, “Let us be plain: Cops are comic objects. And not just in film, not just in comedies. They are comic objects, period.”  More than that, copselfies brags that the only way to have your selfie removed is to fill out a form and wait 4-6 weeks, or “turn in your badge and gun.”

There is one important thing you can do to prevent this type of embarrassing incident that might negatively impact your career: DO NOT TAKE A SELFIE IN UNIFORM.  If it’s too late to un-take these pictures, delete the ones you have.

 

 


[1] Maybe they are submitted by spurned lovers?

 

 

 

Arbitration Trend: Unduly Long Administrative Leave May Very Well Be Discipline.

Including a provision in your collective bargaining agreement that requires any and all discipline to be issued for “just cause” is not a novel idea.  Simply stated, the “just cause standard” demands that all discipline be fairly and consistently administered.[1]  Traditionally the only employer actions reviewed by the just cause standard were run of the mill disciplines: warnings, reprimands, suspensions, demotions, transfers, and terminations. However, recent arbitration decisions may indicate a willingness by arbitrators to expand the type of employer action reviewed by the “just cause standard” to include paid administrative leave, when the administrative leave is unreasonably lengthy or tainted in some manner.

Many public safety officers augment their base wages with income from working overtime and details.  Often, while on an administrative leave, an employee will be ineligible to work overtime and details.  This limitation to paid overtime and detail opportunities often has a significant impact on an officer’s ability to earn a livelihood.  Nevertheless, the management of a department has a right to use paid administrative leave to investigate serious allegations of wrongdoing by employees.  However, more and more arbitrators are beginning to recognize that departments sometimes abuse administrative leave as a def facto discipline, intentionally curtailing an officer’s wages.  Understanding the impact of administrative leave on an officer’s life and income, arbitrators are beginning to examine the length and duration of administrative leaves under the just cause standard.

In a decision issued in June 2013, Arbitrator Betty E. Waxman found that the Town of Millbury had violated the collective bargaining agreement by failing to compensate Officer Dan Daly for lost overtime and details during the period of his almost 8-month administrative leave.  Officer Daly, a member of the Millbury Police Association, MassCOP Local 128, was placed on administrative leave in July 2011 while Millbury conducted an internal affairs (IA) investigation of various allegations about Officer Daly’s professional and personal life, following a four month investigation of the same allegations by the Massachusetts State Police that had already concluded that no criminal charges were appropriate. The IA investigation of Officer Daly was conducted on a part time basis, by a fulltime officer of the Worcester Police Department.  At the conclusion of his investigation, after interviewing every officer in the Millbury Police Department (“MPD”), interviewing approximately 45 civilians, reviewing all of the MPD personnel files, general orders, rules and regulations, as well as the MPD logs and videotapes, the Lieutenant issued a 140-page report that determined that there was insufficient evidence to prove any of the allegations, with the exception of a single charge that Officer Daly made a comment that was “disrespectful”  about a  superior officer.  Based on the Lieutenant’s report, Millbury issued a written reprimand to Officer Daly for his comment.[2]  At the conclusion of the investigation in March 2012, Officer Daly returned to work after missing over approximately $16,000 in overtime and detail opportunities.  Following his return to work, the Union elected to challenge the length of Officer Daly’s administrative leave, based on the impact of the administrative leave on his opportunity to work overtime and details. The Arbitrator ruled that the length of the administrative leave and the scope of Lt. Bates’ investigation amounted to de facto discipline, issued without just cause.

In her decision, Arbitrator Waxman cautioned that other paid administrative leaves of reasonable duration that were tailored to investigate timely allegations might withstand a challenge, but the investigation Millbury conducted, “deprived [Officer Daly] of substantial income in order to explore more than a decade’s worth of allegations and gossip about on duty and off-duty conduct.”

The Arbitrator was moved by the part-time nature of the investigation, and was compelled to issue her decision, because the investigation’s “scope was bloated by the lack of any restrictions on time or subject matter.  [the Lieutenant] was charged with exploring any and all matters that came to light during his investigation.  In doing so, he sifted through all manner of gossip about [Officer Daly’s] police career and personal life — even matters that were undeniably stale.”  Ultimately, Arbitrator Waxman noted that although the Lieutenant conducted a meticulous and comprehensive investigation, “the outcome […] stands for the proposition that justice delayed is justice denied.”

While the award in the Millbury case is the most dramatic statement by an arbitrator of the principle that an employer cannot let the administrative leave process drag out unreasonably, the police union’s across the Commonwealth have been pressing this issue for the last few years.  In a November 2012 decision Arbitrator Michael Stutz converted Waltham Police Officer Paul Tracey’s 15 day suspension to a written reprimand, and ordered the Waltham Police Department to pay Officer Tracey for the approximate value of five months of lost detail and overtime opportunities (based on earnings from the prior year).[3]  Officer Tracey, a member of MassCOP Local 160, was placed on administrative leave while the City investigated the allegation that he had assisted a Mayoral Candidate and City Council President in intimidating one of the politician’s tenants.  However, the City’s investigation was unusually and unnecessarily long; Officer Tracey was not interviewed promptly; and finally, the internal investigation continued for more than five months after the District Attorney and the Attorney General had both concluded their investigations without taking any action.  Arbitrator Stutz concluded that although some investigation by the City was warranted, the entire nine month administrative leave was unnecessary and unjustified.  Based on the foregoing, Arbitrator Stutz determined that Officer Tracey should be compensated for five months (out of 9 months) of lost overtime and detail opportunities.

The lesson here is if your contract includes a just cause provision, overtime and detail opportunities are distributed equitably between members of your bargaining unit, and you believe your department is using administrative leave as a covert discipline tool, your department’s action regarding administrative leave might be ripe for a challenge under the just cause theory.  Preserve your rights: when a bargaining unit member is placed on administrative leave, file a grievance immediately to preserve the timeline and circumvent your employer from raising untimeliness as a defense in the event the administrative leave drags on longer than one could file a Step 1 grievance. Remember, placing and maintaining bargaining unit members on long-term administrative leaves without a compelling justification is discipline – and in many cases it can be reviewed by an arbitrator.


Note: A version of this post appeared in the Summer 2013 issue of Mass C.O.P.’s newsletter “Roll-Call.”


[1] In 1964, Arbitrator Carrol Daugherty outlined a seven part test of “just cause,” that is commonly, although not universally, applied.  According to Arbitrator Daugherty to be issued with “just cause” discipline must be: 1. Based on a reasonable work rule; 2. Employees must have adequate notice of the work rule; 3. The incident giving rise to the discipline must be investigated; 4. The investigation must be fair and objective; 5. The discipline must be based on sustainable proof; 6. The work rule must be evenly and uniformly applied to all bargaining unit members; and 7. The penalty provided must be proportionate to the offense/circumstances.

[2]  The Union grieved Officer Daly’s written reprimand through to arbitration.  In October 2012 Arbitrator Mary Ellen Shea, ruled that the written reprimand was issued without just cause, and ordered Millbury to remove it from Officer Daly’s personnel file.

 

[3]  Officer Tracey was on a paid administrative leave for over nine months (April 20, 2011 – January 30, 2012).