Category Archives: In Our Opinion…

The At-Will Employment Rule Is The Disease And Unions Are The Cure

Imagine this scenario: You have a pretty good job in the private sector. You’ve been working there a while and have been making fairly good money. You have received good reviews and haven’t been disciplined. One day, your boss walks in and says, “You’re fired.” When you ask, “Why?”, your boss says, “No reason.” For the vast majority of employees in the United States today, this scenario – while perhaps unlikely – is perfectly legal.

The dirty little secret of the American workplace is the at-will employment rule, which governs the majority of non-government jobs (and a fair number of public sector jobs as well). According to this rule, an at-will employee can be fired for a good reason, a bad reason or no reason at all.

I can hear the protests from employers: if I fired someone for no reason, they’ll sue me. Yes, maybe. But would they win? Unless there are special circumstances (see discussion below), in many cases, the employer would win. What is your legal claim? What law did your employer violate? There is a very good chance that the termination of your employment didn’t violate any laws at all.

Are there exceptions to the at-will employment rule? Yes. The first and best exception is for union employees. Nearly every union contract contains two provisions that take the at-will employment rule and throw it out with the trash: first, a provision stating that employees may only be discharged for just cause, and second, a grievance-arbitration procedure providing that a neutral third party decides whether the employer had just cause to fire you. Not only do these contractual provisions establish a valuable set of workers’ rights, they also avoid the need to sue your employer. Instead of sending individual employees to sue in court, the collective bargaining agreement provides an in-house mechanism that is (usually) cheaper and quicker than litigation for determining whether your termination was just or unjust.

What about negotiating a better deal on your own? A few select high-powered employees with special skills have the clout to negotiate individual employment contracts, and most of those contracts include just cause protection. But the vast majority of non-union workers don’t have many options to fight arbitrary employer behavior, and most of those choices involve getting a lawyer and going to court – an expensive and time-consuming process in a judicial system that is increasingly unfriendly to the underdogs of society.

In rare cases, the requirement of just cause for termination has been adopted through legislation. If you live in Montana or Puerto Rico, you are in luck – those jurisdictions have laws requiring employers to have just cause for firing an employee. In other states, the courts have constructed various exceptions to the at-will rule in limited situations. There is a public policy exception, which has been adopted by the majority of states, including Massachusetts. According to the public policy exception, an employer cannot fire an employee when the termination would violate a well-defined and explicit public policy. This exception has been applied to cases in which employees were discharged for filing workers’ compensation claims, serving on juries or refusing to commit perjury for the employer. There is the implied contract exception, which all but 12 states have adopted. Under this exception, courts have found that statements made to employees by employers, usually in job handbooks and other writings, may create a promise that the employee will only be fired for good cause. Such documents may also bind the employer to follow certain procedures before firing an employee. The most far-reaching and least common exception is the implied covenant of good faith and fair dealing, which has been adopted by Massachusetts and 10 other states. According to this doctrine, an employer must act in good faith in making employment decisions. The implied covenant of good faith and fair dealing prohibits an employer from firing an employee for a bad reason – such as to avoid paying the employee a commission – but does not go so far as to require the employer to have a good reason for firing someone.

But what about all the laws out there protecting workers from unfair treatment, you might ask. Yes, but. Each of these laws has a very specific target and procedure, and courts and government agencies have in some cases created significant hurdles to winning a claim. So, for example, if you are fired in retaliation for blowing the whistle on your employer’s illegal or unsafe actions, you may be protected. If you are fired in retaliation for exercising your rights under some other statute (such as filing a discrimination complaint or trying to organize a union), you may be protected. If you are fired because of your race, sex, ethnicity, religion, age, disability (or perceived disability), sexual orientation, veteran’s status or other specific category, you may be protected. But ask any employment lawyer whether it is easy it is to win a discrimination lawsuit: even in cases where there seems to be blatant bias, complicated legal rules can keep justice out of reach or delay the outcome for years.

So, yes, there are many different ways the law protects workers from unfair treatment, but most of these statutes and common law exceptions to the at-will employment rule do not address the scenario set out at the beginning of this article. Let’s say the boss is telling the truth when he or she says, “I don’t have a reason” and can prove it in court. Unlikely? Perhaps. Even the implied covenant of good faith and fair dealing – if you’re lucky enough to be in a state that has adopted it, like Massachusetts – may not be enough to protect you. And what if the boss does have a reason that has nothing to do with any of the protected categories set out above? It doesn’t have to be a good reason, as long as there is no evidence of bad faith. Your performance isn’t up to snuff, or you’ve broken a company rule. You and the boss are having a personality conflict. Or maybe you’re just not on the A Team, not among the boss’s favorites. None of these reasons, on its face, is illegal, at least in most jurisdictions. If you don’t have a union to protect you, you may be out of luck. Unless, of course, you live in Montana.

Federal Labor Board Reverses Browning-Ferris Joint-Employer Standard

On December 14, 2017, the National Labor Relations Board reversed the Browning-Ferris joint-employer policy established in 2015, marking the first of many significant policy changes that are expected from the Board over the next few years. Newly minted Board members Marvin Kaplan and William Emmanuel, whose appointments by President Trump gave the Board its first Republican majority since 2007, joined with Chairman Philip Miscimarra in issuing the opinion in Hy-Brand Industrial Contractors, LTD. And Brandt Construction Co. (Case No. 25-CA-163189).

The 2015 Browning-Ferris decision revised the standard by which the Board finds two companies to be “joint-employers” of employees that performed work for both companies. Traditionally, whether or not an “employer-employee” relationship exists turns on how much control an employer has over its workers. Where there are multiple employers directing or controlling the same workers, determining whether an employment relationship exists between the parties becomes more difficult. For example, if McDowell’s, Inc. owns a fast-food restaurant chain but contracts with a local company that controls the day-to-day operations of a particular restaurant, it might not be immediately clear if either company is the direct employer of the people who work there, or if both companies are joint-employers. Therefore, only one of the companies may be required to bargain with a union or employee representative.

Prior to Browning-Ferris, for two companies to be considered joint-employers, each would have to possess and exercise authority in controlling employees’ terms and conditions of employment. In Browning-Ferris, the Board removed the exercise requirement, bringing companies that simply possessed control over terms and conditions of employment to the table to bargain with the union over those terms and conditions, even if they did not exercise that control “directly and immediately.”
Thursday’s ruling in Hy-Brand Industrial Contractors revived the old rule, reinstating the requirements that an employer must both possess and exercise control to be considered a joint-employer, and that the control must be “direct and immediate.” The Board called the Browning-Ferris standard a “distortion of common law” and “ill-advised as a matter of policy.” The Board argued that the definition of a joint-employer was “confused” and that it produced “wide-ranging instability in bargaining relationships.”
In their dissent, Board members Mark Gaston Pearce and Lauren McFerran harshly criticized the reasoning and result of their colleagues’ decision. They first took issue with the “indefensible” process carried out by the Board in arriving at its decision, arguing that the Board disregarded “basic principles of reasoned decisionmaking” and “longstanding Agency norms in favor of public participation.” They called the Board’s “unwillingness to let the parties and the public participate” in the fact-finding process “particularly curious,” referring to the Board’s abandonment of the usual practice of soliciting briefs from the parties and the public prior to overturning a significant policy decision. “It is reasonable to infer,” they wrote, “that our colleagues do not want to engage the public for fear of what they might learn – namely, that none of the predicted effects of [Browning-Ferris] have actually come to pass.”

The dissenting members further opined that the decision demonstrated “a willful misunderstanding of the joint-employer standard,” and that it “violates the explicit policy of the National Labor Relations Act: to ‘encourag[e] the practice and procedure of collective bargaining.’” It is clear that this decision, by design, will lead to fewer parties at the bargaining table.

Chairman Miscimarra’s term expired on Saturday, December 16, leaving the Board ideologically split 2-2. President Trump has not yet nominated a candidate for his replacement.
You can read the Hy-Brand decision here, and the Browning-Ferris decision here.

FREE TRAINING for MASSCOP Local Officials and Members

FREE TRAINING
for MASSCOP Local Officials and Members

TUESDAY JUNE 13, 2017

Sponsored and run by MassCOP officials and attorneys from Sandulli Grace, P.C., this free session will train you on topics that matter to your members, including:

• How to draft and process contractual grievances
• Handling employee discipline issues
• Preparing for and engaging in contract negotiations
• Tackling stress in the workplace

MassCOP believes in empowering its local unions through education to create a stronger, safer environment for its members. This training will give you tools to enforce your rights and improve your members’ working conditions.

The first training session will be held on Tuesday, June 13, 2017, at the Southbridge Police Department, 1 Mechanic Street, Southbridge, MA, from 10:00 a.m. – 2:00 p.m. Seating is limited, so please register by e-mailing GCapozzi@sandulligrace.com.

For more information, please visit our web sites:
www.sandulligrace.com
www.masscop.org

– LUNCH WILL BE SERVED –

Flyer for June 13 2017 Training Southbridge

Massachusetts Overhauls Public Records Law To Increase Access And Enforcement, Reduce Delays And Fees.

Significant changes to the state’s public records laws went into effect on January 1, 2017. The changes, which were passed by the Legislature in June 2016, clarify and elaborate upon the rights and obligations of the public entities in control of public records and the individuals and organizations seeking access to them. In many ways, the laws strengthen the power of citizens to gain access to public records in part by increasing the punishments for public entities that ignore public records requests or unreasonably delay in responding to them. In response to complaints that public entities have been gouging the public in assessing unreasonably high fees for producing documents, the new law sets strict limits on fees and requires the waiver of fees where the public entity did not follow the time limits or otherwise violated the law. The law moves the enforcement provisions from the original public records provision, G.L. c. 66, § 10, into a much expanded new section, G.L. c. 66, § 10A. Section 10A sets out in detail the legal standards and procedures for members of the public who have not been given the public records they requested, or only obtained the documents after long delays. Section 10A strengthens the role of the Supervisor of Public Records (who is located in the Secretary of State’s office) and the Attorney General in enforcing the law. It also permits the award of attorney’s fees and punitive damages in certain cases. The amended law also requires the holder of public records to communicate with the requester in writing to explain claims of exemption, the amount of fees or the reason for any delay in providing the documents.

The statute requires each public entity to assign a public records access officer who will keep track of all requests for records and oversee the responses to those requests as well as compile a detailed annual report for the Supervisor of Public Records. The statute states that electronic delivery of documents is preferred where feasible. It allows the public entity to withhold documents where: (1) the request is one of many by the same requester and is designed only to harass and intimidate and has no public purpose (a determination ultimately made by the Supervisor of Public Records) or (2) the requester has failed to pay the fees for prior requested documents. The statute also distinguishes between public records requests made for purposes of informing the public and those made with a commmercial or profit-making reason. While most of the amendments strengthen access to public records, there are also a few additions to the list of exempt documents, including those containing cyber security information and also the personal e-mail addresses of certain public employees.

Specific changes include the following:

  1. New exemption: records relating to cyber security
  2. New exemption: personal e-mail addresses of employees of the judicial branch and unelected employees of the Commonwealth, its agencies or its political subdivisions, or their family members.
  3. Establishes a Public Records Assistance Fund, funded by punitive damages awards and other sources, administered by the office of information technology, to provide grants to municipalities to “foster best practices for increasing access to public records and facilitating compliance” with the law.
  4. Requires the Supervisor of Records to create and distribute forms, guidelines and reference materials to aid the public in getting access to public records.
  5. Requires state agencies and muncipalities to designate a records access officer or officers, who are responsible for assisting the public in obtaining documents.
  6. Establishes that providing the requested documents by electronic means is preferred, unless the record is not available in electronic form or the requester does not have to ability to receive the documents in that form.
  7. Any public records request must reasonably describe the public record sought.
  8. The public entity must respond within 10 business days with either the documents requested or a detailed explanation for the delay or exemption; if there is no response within 10 days, then the public entity cannot charge a fee for the documents.
  9. Limited extensions of time of five additional days for the Commonwealth and 15 additional days for municipalities are permitted. For good cause, the Supervisor of Public Records may grant an additional, one-time-only 20-day extension to the Commonwealth or 30 business days for a municipality. The requester can agree to an extension of any length.
  10. The public entity must provide any non-exempt documents that are within its possession, custody or control.
  11. If a fee is permitted and the public entity requests a reasonable fee, the public entity can refuse to provide the documents until it receives the fee.
  12. In a major change from the earlier fee provisions, the Commonwealth and its agencies cannot charge a fee for the first four hours of work in responding to a request. For muncipalities with a population of 20,000 or more, the free period is two hours. Smaller municipalities may charge for all the time required to process the request. After the applicable free period, the public entity can charge up to $25 an hour for time spent on the request (more if approved by the Supervisor of Public Records after a detailed showing of need). The charge for black and white copies is limited to five cents per page.
  13. Enforcement: Whereas under the prior law, the requester could only ask the Supervisor of Public Records to determine whether the requested record was public, the statute now gives the Supervisor the power to make “a determination whether a violation [of the public records law] has occurred.”
  14. If the Supervisor of Public Records finds a violation of the law, it may notify the Attorney General, who may take any steps to ensure compliance, including filing a civil action.
  15. No matter what steps the Supervisor of Public Records or Attorney General do or do not take, the requester has the right to file a civil action to enforce the law in the Superior Court. The enforcement provision gives the court the power to issue injunctive relief and specifically incorporates the presumption that every record sought is public, which places the burden on the public entity to prove that it has complied with the law.
  16. If the requester files a civil action and subsequently prevails (and prevailing includes obtain the requested documents, even without a court order), there is a presumption in favor of an award of attorney’s fees and costs.
  17. To overcome the presumption of attorney’s fees, the agency or municipality must prove it comes within a specific exemption (i.e., the Supervisor of Public Records found there was no violation of the law; the entity reasonably relied on a published court or attorney general opinion; the intent of the request was to harass or intimidate, or the request was for commercial, not public purposes).
  18. If the Superior Court awards attorney’s fees, then it must order the public entity to waive any fees. If the Superior Court does not award attorney’s fees, it still may order the entity to waive fees.
  19. If the requester obtains a court judgment in his or her favor and has shown that the public entity did not act in good faith, then the court may assess punitive damages against the Commonwealth or municipality of between $1000 and $5000, with the money to be placed in the Public Records Assistance Fund.

Notes for employees and unions:

  1. Because of the fee provisions of the public records law, we advise our public employee union clients to request records that are relevant and necessary to their role as exclusive bargaining agents under G.L. c. 150E, § 6. The obligation to provide such information is an important aspect of a public employer’s obligation to bargain in good faith with its employee unions. If the parties have a past practice of providing documents without charge, then charging a fee for documents requested pursuant to Chapter 150E would be a unilateral change in working conditions and a basis for filing an unfair labor practice charge. A public records request would be necessary when seeking records in the custody of public entities other than the public employer with whom the union has a bargaining relationship.
  2. Personnel records are exempt from disclosure as public records, but an individual employee has a right to see his or her personnel record under G.L. c. 149, § 52C. Employee personnel records and internal investigation records may also be available to unions pursuant to G.L. c. 150E, § 6, although redaction may be required in some cases.
  3. Criminal defendants may have a constitutional right to certain portions of otherwise exempt records, such as personnel files of arresting police officers and internal affairs investigations of those officers, under Commonwealth v. Wanis, 426 Mass. 639 (1998), upon a specific showing that the records are likely to contain exculpatory information.
  4. The exemptions to the Public Records Law only determine what documents public entities are permitted to withhold from public records requesters. It arguably does not prohibit public entities from disclosing exempt documents. Other laws and statutes, including laws creating certain privileges and the law prohibiting invasion of privacy, may be invoked to prevent a public entity from disclosing a document that is not a public record within the meaning of the law.

First Amendment Does Not Protect Employee Who Is “Just Doing His Job”

The Massachusetts Appeals Court today reaffirmed that an employee does not have First Amendment protection for statements made as part of his job. New Worcester County Sheriff Louis Evangelidis fired Jude Cristo, who had been the Director of Payroll and Human Resources. Cristo challenged his termination, claiming that he was fired because he complained that employees’ were not doing their jobs because they were engaging in political campaigning during work hours. Cristo claimed that the First Amendment protected his complaints. The Court disagreed.

In granting Evangelidis summary judgment, the Court of Appeals found that Cristo’s speech did not constitute protected expression for First Amendment purposes. The Court of Appeals noted settled Supreme Court precedent that is used to determine when a public employee’s speech is protected. In reviewing speech, the court asks, in part, whether the employee is speaking in their capacity as a citizen regarding a matter of public concern. The Court of Appeals agreed that Cristo was clearly commenting on a matter of public concern because the complaints he made to his supervisor were related to the potential misconduct of sheriff’s office employees. This speech was strongly tied to a matter of public concern because it related to public employee’s campaigning during work hours instead of performing their actual duties and committing other potentially unlawful acts.

However, the Court nonetheless found the speech to be unprotected because Cristo’s comments were made pursuant to his official duties and he was not necessarily commenting as a private citizen. The Court found that Cristo’s complaints were all made in furtherance of fulfilling his duties as the director of payroll and human resources, as his duties included making sure that employees correctly reported their time and included making sure that other employees complied with their human resources responsibilities. Consequently, as Cristo was merely making statements pursuant to his official duties and was not speaking in his capacity as a private citizen, his speech was not entitled to First Amendment protection.

This case is a reminder that while a public employee “does not leave her constitutional rights at the door” when she goes to work, those rights are curtailed when it comes to the operation of her governmental employer.

You can read the decision here.

Appeals Court Upholds Power of Arbitrators to Decide Whether a Teacher has Professional Teacher Status

Today, the Appeals Court issued a decision holding that arbitrators, acting pursuant to their authority under G.L. c. 71, § 42, have the authority to determine if a dismissed teacher held professional teacher status at the time of his/her dismissal. Under G.L. c. 71, § 42, teachers who have three consecutive years of service with a school district are entitled to professional teacher status, which confers upon them certain procedural and substantive rights, including the right to challenge their dismissals before an arbitrator under a just cause standard.

The case, Plymouth Public Schools vs. Education Association of Plymouth, involved a special education teacher, who worked for the school district for five years. During those five years, the teacher took maternity leave twice, under the Family Medical Leave Act (“FMLA”). At the end of her fifth year, the school district notified her of its decision not to renew her for the upcoming year. The district believed that the teacher had not obtained professional teacher status because her service was interrupted by the two periods of maternity leave. The teacher and the union took the position that she had acquired professional teacher status by virtue of her five years as an employee of the school district. Accordingly, the union petitioned the Commissioner of Elementary and Secondary Education for arbitration. The Commissioner forwarded the petition to the American Arbitration Association for an arbitration to determine first, whether the teacher had professional teacher status, and, if she did, whether or not the district had just cause to terminate her employment.

The district filed suit in Superior Court. There, the district argued that the teacher did not have professional teacher status, that she had no right to arbitrate her dismissal, and that the question of whether or not she had professional teacher status could only be answered by the courts, rather than by an arbitrator. After the Superior Court ruled in the district’s favor, the teacher and the union appealed to the Appeals Court. The Appeals Court reversed the Superior Court’s decision and declined to decide whether or not the teacher had professional teacher status. In doing so, the Court ruled that the question of whether or not she had professional teacher status was one appropriately answered by an arbitrator, rather than the courts. As a result, the dismissal will be reviewed by an arbitrator who will have the power to determine whether the teacher had professional teacher status and, if so, whether she was dismissed for just cause. Had the court not decided in the union’s favor, teachers in a similar position would have to file suit in court to determine their professional teacher status, and then, if the court ruled in their favor, proceed to arbitration to obtain a determination on the merits of their dismissal. This decision reaffirms the Legislature’s intent to have arbitrators decide issues relating to the termination of teachers and avoids forcing teachers into costly, duplicative litigation.

The case was successfully litigated by Atty. Matthew Jones of the Legal Services division of the Massachusetts Teachers Association.

Here is a link to the decision.

Public Records Law Overhauled For First Time In 43 Years

The state’s public records law was updated today for the first time in 43 years. The new law, “An Act to Improve Public Records,” puts pressure on municipalities and agencies to respond quickly and adequately to public record requests by establishing strict timeline requirements and allowing for significant judicial measures in the event of noncompliance.

Most notably, the law allows judges to award attorney fees and costs, as well as punitive damages up to $5,000 for a lack of good faith, to requesters who succeed in court against an agency or municipality that fails to produce records according to the statute. This change accompanies a new timeframe for responding to requests. Like the current law, the new law requires a response within 10 business days. However, the new law will require a municipality or agency, if it cannot produce the requested records, to identify a reasonable timeframe for turning them over. That timeframe cannot exceed 15 days for an agency and 25 days for a municipality following the initial receipt of the request, unless otherwise agreed to by the requestor.

Additional provisions call for the use of electronic and digital transmission of records when possible (preferably in ‘searchable’ form), the designation of one or more employees as ‘records access officers,’ and the creation of a Public Records Assistance Fund. Further, agencies must host websites providing records of proceedings, annual reports, winning bids for public contracts, grant awards, agency budgets, minutes of open meetings, and more.

The law specifically clarifies that personal information of law enforcement and public safety personnel, including their home address, personal email address, and home telephone number, “shall not be public records” and “shall not be disclosed,” with limited exceptions that include requests made by public employee organizations such as unions. Section 10B. Similar personal information relating to family members of law enforcement and public safety personnel are explicitly not public records and should never be disclosed, without exception. Id.

The bill, House No. H.4333, passed unanimously in both the House and Senate on Wednesday and signed today by the governor, after being formed as a result of a compromise between two bills originating separately in each chamber. Most of the provisions of the new law take effect on January 1, 2017.

Court of Appeals for the Second Circuit Reverses District Court’s “Deflategate” Decision, Reinstates Brady’s Suspension

By a 2-1 decision, a panel of three judges of the Court of Appeals for the Second Circuit overturned District Court Judge Richard Berman’s decision that overturned the NFL’s suspension of New England Patriots’ quarterback Tom Brady.

In its decision, the majority held that Judge Berman ignored the exceptional deference federal law afford decisions of labor arbitrators and acted beyond the narrow scope of review federal courts are required to adhere to. Specifically, the Court held that in suspending Brady, NFL Commissioner Roger Goodell properly exercised the broad discretion given to him by Article 46 of the collective bargaining agreement to suspend players for “conduct detrimental” to the NFL and/or the integrity of the game.

In its decision, the Court highlighted and rejected each of the three bases upon which Judge Berman overturned Brady’s suspension: 1) that Brady was not given proper notice that his actions could result in a four-game suspension, 2) that testimony excluded from the arbitration made the decision fundamentally unfair, and 3) that the NFL’s denial of access to the investigative notes from the NFL’s General Counsel also amounted to fundamental unfairness. In the case of each, the Court ruled that Judge Berman acted beyond his authority and did not afford Goodell’s decision the deference it was entitled to under the federal Labor Management Relations Act and the Federal Arbitration Act. The Court noted that under federal law, so long as the arbitrator is “even arguably construing or applying the contract and acting within the scope of his authority” the decision must be upheld, and that a judge cannot simply substitute his judgment for that of the arbitrator.

It is worth noting that the point of controversy which received a large bulk of the media attention in this case, that Goodell was able to serve as arbitrator in a dispute involving discipline he himself meted out, was a relatively minor issue to the Court. The Court that found this arrangement is extremely unusual, but noted that it was the process explicitly called for by the collective bargaining agreement. This is consistent with a long line of cases emphasizing that when parties to a collective bargaining agreement agree to a grievance process which ends in final and binding arbitration, that the decision of an arbitrator should be just that: final, binding, and free from interference by the courts. It seems that if the NFL and the NFL Players Association are to fix what many agree is a broken system of disciplinary appeals, they will have to do so at the bargaining table, rather than in a courthouse.

What People Say When They Get Arrested

The Boston Globe has a front page story on April 10 titled “Arresting Words.” Written by columnist Yvonne Abraham, the story weaves the words from Boston police reports into a tapestry of what police officers face daily on the streets and in the health clinics and within the homes of people to whom they are called to respond. Most are poor, many suffer from mental or physical illness, some are violent or threaten violence.

We see and hear a lot about victims of police abuse. This story gives some small bit of insight into the world into which society sends its police officers. Perhaps because it thrives on sensationalism, the press usually fails to convey a true picture of the milieu in which police officers work. Police must at once be legal experts and social workers. Split second decisions are parsed by appellate judges and clinical psychologists years later, but only after they have spent weeks, months, and years poring over enormous amounts of data, much of which the officer on the scene had no knowledge of in the moment.

And how does society value the men and women in police work? It compensates them like other public employees – fire fighters, teachers, sanitation workers – but nowhere near the level of the judges or bureaucrats who sit in judgment over therm.

One would think that having an educated police force would be a good idea. In fact, in 1967, the President’s Commission on Law Enforcement and Criminal Justice (the Johnson Crime Commission) recommended more education for police officers. Massachusetts responded in 1970 by passing the Quinn Bill, now known as the Police Career Incentive Pay Program, codified as Mass. Gen. Laws Chapter 149, Section 108L. A local option law, it provided additional compensation ranging from 10% to 20% to 25% for an Associates’, Bachelor’s, and Masters/JD degree. When many municipalities accepted the program, thousands of police officers seized the incentive to gain college degrees. But the program’s Achilles heel was that, although its cost was supposed to be split between the state and the community, starting in the late 1980’s and continuing to the present day, the Legislature has underfunded the program to the point that it makes virtually no contribution to its one-half share.

In Boston, where one would think educated police officers would be a priority, the Boston Police Patrolmen’s Association and the City had negotiated for this benefit in 1998. But when the Commonwealth underfunded the program in 2009, the City simply shortchanged its educated police officers, reducing their salaries by thousands of dollars. The Supreme Judicial Court, which has no problem opining on the lofty standards to which police are held (“it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials.” 1 ) voted unanimously to uphold these pay cuts for educated police officers.

The current solution to address police abuse is to put body cameras on police officers. If and when that happens, and if people actually watch 99+% of what the police see, they will perhaps gain some insight into the world into which this Globe article peers. As one veteran officer remarked to me, people would be horrified to actually have to look at some of what police see on a daily basis. He mentioned entering a house where multiple people and domestic animals had relieved themselves everywhere, creating a visual and olfactory experience that could only induce nausea.

The social and economic conditions depicted in this column were not created by the police. But it is the police who must spend much of their working lives dealing with them. As Jesse Jackson has written,

The president has created a Task Force on 21st Century Policy, with instructions to report in 90 days. He’s committed millions to put cameras on police. But he might be better advised to put cameras on bankers.

By putting this article on its front page, the Globe perhaps opened a few readers’ eyes. But there is much more that must be done

1 City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005)

The Supreme Court Hands Down An Unexpected Public Sector Union Victory

An evenly divided Supreme Court upheld a ruling from the Ninth Circuit Court of Appeals ruling supporting the right of public sector unions to collect fair share fees from employees they represent who are not members of the union. Friedrichs v. California Teachers Association. The result leaves intact a near 40 year old precedent in Abood v. Detroit Board of Education. Abood held that the First Amendment only applies to forced contributions to the union’s political activities. Public sector unions are the exclusive representative and are bound by a duty of fair representation to all bargaining unit members without regard to their union membership. Accordingly, the Court in Abood held that non-members should be required to pay their fair share of the costs of negotiating and administering the contract on their behalf.

Conservative antiunion organizations have been trying to get the Court to overturn Abood since it issued in 1977, whittling down it principles by imposing increasing burdens on unions seeking to collect fair share fees from non-members. When Friedrichs was argued on January 11th the Court seemed poised to overrule precedent. The conservative Justices expressed skepticism about virtually all of the major arguments proffered in support of fair share fees. It seemed almost certain that the high court would rule 5-4 that fair share fees are unconstitutional. But with Justice Scalia’s death there were no longer five justices to do so.

The result of the ruling is a victory for unions. But the decision was a one sentence opinion affirming the 9th Circuit “by an equally divided Court.” It does not set precedent at the Supreme Court level. The next appointment to the Court will have considerable power over this critical issue which undoubtedly will be raised again.