Category Archives: In Our Opinion…

Equal Pay For Men And Women Doing Comparable Work: A New Massachusetts Law Takes Effect

On July 1, 2018 a new comprehensive pay equity law took effect in Massachusetts that seeks to eradicate the wage disparities between women and men working in the Commonwealth. See Mass. Gen. Laws c. 149, § 105A, as amended by St. 2016, c. 177, § 2. The new law, which amended an earlier version passed in 1945, is a comprehensive attempt to bring women’s wages to the same level as men’s. According to recent statistics, the average full-time working woman in Massachusetts makes only 84.3 % of the average full-time working man. In addition to making it easier for employees to make claims for unequal pay based on gender, the law also makes it unlawful for employers to prevent their employees from talking about their pay, and prohibits employers from asking about your pay history when you apply for a job.

To understand the background of this significant change in the law, it is necessary to go back to 1945, when Massachusetts became the first state in the nation to enact a law prohibiting employers from paying men and women differently for comparable work. St. 1945, c. 584, § 3. The only exception provided in the law was for pay differences based on seniority. In 1963, the federal government passed a narrower version of the law, which required equal pay for men and women, but only if they were doing equal work, that is, work that required “equal skill, effort, and responsibility” and was “performed under similar working conditions.” 29 U.S.C.A. § 206(d). The federal law had four exceptions: (1) seniority; (2) merit; (3) quantity or quality of production; or (4) “any other factor other than sex.”

After 1963, inquiring minds wanted to know: What’s the difference between the federal law (equal pay for equal work) and the earlier Massachusetts law (equal pay for comparable work)? In the 1990s, a group of food service workers in the Everett Public Schools, with the support of a union, the Massachusetts Teachers Association, decided to find out what “comparable” really meant. The food service workers, who were all women, claimed that they performed work that was comparable to the school janitors, who were all men, but were paid less. After a lengthy trial, a Superior Court judge found in favor of the food service workers. Applying the four-part test of the federal law, the judge found that the food service workers and the janitors performed work that required comparable skill, effort, responsibility and was performed under comparable working conditions. The judge ordered the employer to pay the food service workers the same as the janitors.

The School Committee appealed the decision to the Supreme Judicial Court, which reversed the lower court. The SJC in 1995 (and again in 1998) ruled that the judge had applied the wrong legal standard to the Massachusetts Equal Pay Act. See Jancey v. School Committee of Everett, 421 Mass. 482 (1995) and Jancey v. School Committee of Everett, 427 Mass. 603 (1998). According to the SJC, after applying the four-part test of the federal law, the judge should have applied a fifth test: Were the job duties of the positions being compared similar enough to make comparison practical? Janitors and food service workers have very different job duties, the SJC found, and the law was not intended to compare different types of jobs in this way.

Supporters of equal pay drafted legislation to overturn the result in Jancey, but it wasn’t until 2014 that their efforts came to fruition with the passage of An Act to Establish Pay Equity, which took effect at the beginning of this month. The law retains the standard of equal pay for comparable work, but it defines the standard in a way that removes the fifth test set out in Jancey and effectively overrules that case.

Under the new version of the Massachusetts Equal Pay Act (MEPA), nearly every employer in Massachusetts (except certain domestic and agricultural workers, and federal employees) must pay men and women the same in all aspects of wages and benefits if their jobs require comparable skill, effort and responsibility, and are performed under similar working conditions. There is no requirement that the difference in pay be intentional or the result of discriminatory animus; this is a strict liability standard. An aggrieved employee may file a complaint with the Attorney General or may go directly into Superior Court to challenge a violation of the law. The employee does not need to file a discrimination complaint with the Massachusetts Commission Against Discrimination to challenge an equal pay violation. If the employee succeeds in proving a violation of the law, she is entitled to: (1) the difference in pay going back a maximum of three years; (2) an equal amount in liquidated damages; and (3) reasonable attorneys fees and costs. A complaint must be filed within three years of an employer’s action creating the pay discrepancy or within three years of the employee’s most recent paycheck. NOTE: The employer cannot eliminate gender-based differences in pay by reducing anyone’s pay.

While the new law gives MEPA new life after the Jancey case effectively killed it, it also gives employers new defenses that didn’t exist in the previous law. For example, a difference in pay between men and women does not violate MEPA if it is made pursuant to any of the following reasons:

  1. a seniority system (but employee seniority can’t be affected by pregnancy or family and medical leave);
  2. a merit system;
  3. a system that rewards quality or quantity of production;
  4. the geographic location of the work (if based on legitimate regional differences);
  5. education, training or experience (if reasonably related to the job); or
  6. travel (if travel is a regular and necessary aspect of the job; commuting not included).

There is also an affirmative defense in the law for employers, who can successfully oppose a MEPA claim if they can show:

  1. They conducted a good faith, reasonable self-evaluation of their pay practices;
  2. The evaluation is reasonable in detail and scope;
  3. The evaluation was conducted within three years prior to the filing of the complaint; and
  4. The employer can show reasonable progress towards eliminating any gender-based wage differentials revealed by the evaluation.

In addition to toughening up MEPA, the new law also includes provisions regarding employee and employer discussions of pay and pay history. The law requires employers to allow their employees to discuss their pay with co-workers, or anyone else, for that matter. (The idea here is that allowing employers to gag their employees allows the perpetuation of discriminatory pay practices.) At the same time, the law prohibits employers from disclosing employee pay and salary information to others unless (1) the employee affirmatively consents or (2) the information is a public record, as with public employees.

Furthermore, the law attempts to cut down on the perpetuation of discriminatory practices by prohibiting employers from asking prospective employees about their past salary or salary history. There are exceptions here too:

  1. the employer can confirm prior wage history with former employers if the prospective employee voluntarily provides information about prior pay;
  2. the employer can ask a prospective employee his or her salary expectations for the new position, as long as it doesn’t ask where the expectation came from; and
  3. the employer can ask for prior pay information once it has made a job offer with a compensation package.

For more detailed information about the new law, see the Attorney General’s Overview and Frequently Asked Questions.

The passage of the new, improved MEPA proves that where there is significant opposition to a court interpretation of a law, the legislative process, while sometimes slow, can act to amend the law and effectively overrule the court. Although the neutrality of the court system and its ability to interpret the laws remain intact, the democratically-elected representatives of the people get the last word.

Supreme Court’s Janus Decision: What Does It Mean?

On June 27, 2018, the US Supreme Court issued its long expected decision in the case of Janus v. AFSCME, Council 31. By a 5-4 majority, the Court ruled that it is unconstitutional for a union representing public employees (federal, state, or municipal) to require its members to pay anything to their union, even though, in most states, that union still has a duty to represent them. If it seems odd for the Supreme Court to rule that unions, private organizations funded by workers’ dues, should have to provide free services to fellow workers who choose not to pay dues, welcome to the current political landscape. But, first, how does the case affect unions now?

Janus has no effect on unions representing private employees. It deals only with public employee unions, such as police officers, fire fighters, teachers, municipal and state workers.

If you are a union member, you continue being a member. There is no direct effect on you.

The immediate impact is: there is no more required agency service fee. What, you may ask, is an agency service fee?

In certain states with public sector collective bargaining laws, such as Massachusetts (governed by Chapter 150E), when a union is chosen by a group of workers to represent them for collective bargaining purposes, that union is obligated to represent all of the employees in that particular group. The group represented by the union is called a bargaining unit. For example, when the police in, say, Lynn, voted to be represented by the Lynn Police Association, that Association (for our purposes, “Association” and “Union” are the same thing) became the “exclusive collective bargaining representative” of the bargaining unit of all of the police in Lynn. Under Chapter 150E, that Association became legally obligated to represent all of the Lynn police, because they are all part of its bargaining unit.

Under preexisting law, public employees could not be compelled to join a union, even when that union has a duty to represent them. However, in Massachusetts and other states with fully developed labor laws, bargaining unit employees who did not want to join their union could be required to pay their fair, proportionate share of the union’s cost of representing them. As members of the bargaining unit, agency fee payers receive the same wages and contractual benefits as union members. Their grievances had to be processed the same as members’ grievances. This “fair share” payment is an agency service fee.

Generally, the amount of the agency service fee was somewhere around 80-85% of the union dues. Not being union members, employees who paid agency service fees could not run for union office, serve in any union position, or have any say in how their unions were run. They also received considerably fewer services than union members, but more about this below. Suffice it to say that, in Massachusetts, not many workers opted to be agency fee payers and, among public safety unions, they were virtually non-existent.

The Janus decision says members of a bargaining unit who refuse to join their union can no longer be required to pay an agency service fee. In fact, they cannot be required to pay anything. Yet their union, under existing Mass. law, still has a duty to represent them in the areas where the union serves as the exclusive collective bargaining representative. Those areas are contract negotiations and grievance processing.

While the case was supposedly decided on First Amendment (“free speech”) grounds, anyone who thinks it a product of refined legal reasoning and scholarship should consider applying to Trump University. The decision is designed to cripple public sector unions, who provide both funds and foot soldiers for causes which ultra-conservative billionaires like the Koch Brothers oppose. We need only look at the 62-38 trouncing of the charter school referendum in the 2016 Mass. election. Only the human and economic resources of teacher and other unions (both public and private sector) succeeded in countering the tens of millions of dollars the charter school proponents pumped into the campaign. These ultra-rich also don’t particularly enjoy paying taxes so that police officers, fire fighters, teachers, and other public workers can lead decent lives with decent benefits and retire on livable pensions. In short, Janus is only superficially about free speech; what it’s really about is breaking unions.

While quitting your union and letting your co-workers’ dues pay for the cost of negotiating your contract and handling your grievances may be an option for some, there are significant downsides to this approach. In many unions, particularly public safety, union members receive significant benefits outside of the contract which are not provided to non-members. Unions represent their members in civil service, retirement, unemployment, and other areas where non-members receive no services. For police officers, in particular, unions provide legal representation at critical incidents and defend their members in civil and criminal cases arising out of their employment. Union members also receive representation in both departmental (“internal affairs”) and external (state and/or federal) investigations. Since these services are provided outside of the collective bargaining agreement, non-members receive none of them. Teachers in Massachusetts who are wrongly terminated can appeal only through an individual arbitration process. The union will fight to get its members their jobs back; non-members can either represent themselves or mortgage their homes to hire their own counsel.

Besides these specific and practical reasons, public workers, at least in Massachusetts, need only look at the benefits they have gained through collective bargaining. During this past year, we have seen teachers in states without union bargaining rights (West Virginia, Oklahoma, Kentucky) marching on their state capitals to achieve even the most modest wage and benefit improvements. While public employees in Mass. have not gotten rich, they have at least been able, for the most part, to be able to lead decent lives, raise and support their families, and retire with some modicum of financial security.

You can anticipate that anti-union groups will conduct a negative campaign to try and convince you to abandon your union and stop paying dues. Groups like the NRTW (National Right to Work) organization, (an oxymoron if ever there was one) will undoubtedly conduct a campaign. They will likely start with the teachers, but all other public employee unions will come next. Members who want to abandon their union must, in Massachusetts, provide at least 60 days’ notice of cancellation. This will provide you and others from your union an opportunity to educate your colleague. The message is very simple: Your union is only as strong as its members; working together we can make our lives better and have some say in our destiny.

Not too long ago, when you bought a house, you got a 30 year mortgage. You paid the same amount every month and, over time, you gained some equity. If you stayed in the house, eventually you paid it off and not only had a place to live but also something to pass on to your children. Then, about 20 years ago, some Wall Street sharpies got a lot of people to refinance or buy new houses. For the first few years, there were very low monthly payments on artificially low interest rates with no payments of principal. The sharpies made a lot of money creating and selling complex financial instruments with these mortgages. If your house went up in value and you sold it, it was a great deal. But in 2008 and 2009, when you couldn’t sell your house, all of a sudden the principal payments and higher interest rates kicked in and the monthly payments were crushing. A lot of people lost their homes.

This is what Janus is all about. On the surface, getting some of the benefits without paying anything looks great. But, over the long haul, you’re just being taken for a sucker. Let’s not get fooled again.

Massachusetts Coalition Of Police 2018 Basics Training Seminar (for MASSCOP Local Officials & Members)

Sandulli Grace and the Massachusetts Coalition of Police are pleased to announce our second year of training sessions for MassCOP members.

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.

Our 2017 “basics” training sessions were extremely popular, especially with newly elected union leaders looking for guidance on the rights and responsibilities of union officials. We understand that union leadership changes rapidly, and so we will offer two more basics trainings in 2018. The first one will be on Thursday, June 28, 2018 from 11:00 to 3:00 at the Stockbridge Police Department. We invite all MassCOP members. We hope the location of this training will enable many of MassCOP’s western Massachusetts locals to attend.

Our second 2018 “basics” training will take place in November 2018, in Middlesex County (date to be announced).

We will also offer an advanced training in October 2018, which will address the following topics in depth: retirement options, disability, management rights, just cause, grievance v. ULPs, health insurance, and dispatch basics. This will be a full-day training at the Sheraton Framingham (date to be announced).

We hope that the availability of additional dates and different locations will help more members attend. Please see the attached flyer for registration for the June 28, 2018 Stockbridge training.

Sincerely,
The Massachusetts Coalition of Police and Sandulli Grace, P.C.

attached flyer for registration

Massachusetts Coalition Of Police 2018 Basics Training Seminar (for MASSCOP Local Officials & Members)

Sandulli Grace and the Massachusetts Coalition of Police are pleased to announce our second year of training sessions for MassCOP members.

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.

Our 2017 “basics” training sessions were extremely popular, especially with newly elected union leaders looking for guidance on the rights and responsibilities of union officials. We understand that union leadership changes rapidly, and so we will offer two more basics trainings in 2018. The first one will be on Thursday, June 28, 2018 from 11:00 to 3:00 at the Stockbridge Police Department. We invite all MassCOP members. We hope the location of this training will enable many of MassCOP’s western Massachusetts locals to attend.

Our second 2018 “basics” training will take place in November 2018, in Middlesex County (date to be announced).

We will also offer an advanced training in October 2018, which will address the following topics in depth: retirement options, disability, management rights, just cause, grievance v. ULPs, health insurance, and dispatch basics. This will be a full-day training at the Sheraton Framingham (date to be announced).

We hope that the availability of additional dates and different locations will help more members attend. Please see the attached flyer for registration for the June 28, 2018 Stockbridge training.

Sincerely,
The Massachusetts Coalition of Police and Sandulli Grace, P.C.

attached flyer for registration

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.