Monthly Archives: September 2006

Sandulli Grace In The News

State Rules Boston Police Department Unlawfully Underpaid Police Officers For Overtime

Sandulli Grace Staff September 12, 2006

Overtime Caused by Understaffing Likely to Lead To Substantial Sum

The Massachusetts Labor Relations Commission (LRC) has ordered the City of Boston to pay additional wages to potentially hundreds of police officers based on the City’s unlawful failure to bargain with the Boston Police Patrolmen’s Association (BPPA).

In 2001, more than 800 Boston patrol officers, with the aid of Sandulli Grace, PC, sued the City based on the City’s unlawful refusal to calculate overtime as required by the Fair Labor Standards Act (FLSA). That case resulted in a 2004 judgment from a federal judge that the City had willfully violated the FLSA, followed by an award of almost $700,000 to the officers, in addition to attorneys fees and costs.

In July 2002, the City tried to reduce overtime payments to officers by implementing a partial exemption to the FLSA’s overtime provisions that allows a municipality to spread overtime accrual over a period of up to 28 days (the law requires a 7-day overtime period for all other situations). When the City refused to bargain with the BPPA as required by law, the BPPA (assisted by Sandulli Grace) filed an unfair labor practice charge with the LRC. This Summer, the LRC issued its decision in the case, finding that the City violated state law by not bargaining with the BPPA, and ordered the City to make all patrol officers whole for its unlawful actions.

“It’s unfortunate that the City’s failure to properly staff the department has created a situation where officers are required to work overtime. To add insult to injury, however, the City unlawfully tried to underpay officers for the very hours it was forcing them to work. We’re happy that the LRC has reaffirmed the BPPA’s right to bargain before the City cuts the wages of Boston Police Officers,” said BPPA President Thomas Nee.

The LRC rejected the City’s claim that it could not follow the FLSA and also meet its duty to bargain with the BPPA. Because this issue dramatically affects overtime earnings, the LRC further agreed with the BPPA that the City could not change such an important or mandatory subject without first bargaining.

To remedy the illegal reduction in overtime earnings, the LRC ordered the City to pay all officers the difference between the FLSA overtime they were paid using a 28-day pay period from July 2002 onward and the overtime they should have been paid using the seven-day pay period previously in effect. While the BPPA has not yet calculated damages, they may be substantial.

“The City actually defended this case by claiming that it couldn’t meet its state law obligation to bargain with the BPPA and also follow federal law. That’s like saying that you can’t walk and chew gum at the same time. We’re relieved that the LRC rejected this preposterous argument,” said Bryan Decker, a partner of Sandulli Grace which is counsel to the BPPA.

The City has appealed the Union’s victory, which remains pending at the trial court level.

In Our Opinion...

State High Court to Decide If Cities and Towns Must Pay Interest When They Wrongfully Deny Section 111F benefits.

Sandulli Grace Staff September 5, 2006

The Supreme Judicial Court has agreed to review a victory for public safety officers injured in the line of duty. Earlier this year, the state Appeals Court ruled that a public employer must pay pre- and post-judgment interest if a state court overturns the municipality’s refusal to pay injured-on-duty benefits to a police officer or firefighter. The case is Todino vs. Town of Wellfleet 05-P-613 (April 19, 2006).
A public safety officer may go to court to challenge a municipality’s decision to deny §111F benefits. IOD benefits are commonly known as §111F benefits in reference to General Laws Chapter 41, §111F. Under the Appeals Court decision, a municipality is on the hook for prejudgment and postjudgement interest if a court finds that the denial of 111F benefits is determined was wrong.
In the Todino case, a special police officer was removed from §111F and fired in December 1998. In November 2002, a court found that these actions were unlawful and entered a judgment entitling her to reinstatement and retroactive §111F benefits. The Town of Wellfleet appealed this decision – and lost in March 2005. Wellfleet finally paid the officer for lost wages ($172,000) in April 2005 without interest.
The officer then sought interest payments on the above payout. Her prejudgment interest – based on the time between the initial denial of benefits and the date of the trial court’s decision – totaled about $69,000. Meanwhile, postjudgment interest – based on the time between the trial court’s decision and the municipality’s actual payment of §111F benefits – reached nearly $61,000. Without the addition of pre-and post-judgment interest, the Court stated, “the ultimate payments to the employee would be incomplete as well as untimely and the over-all statutory scheme would be defeated.”
This decision, if upheld, presents a resounding victory for public safety officers injured in the line of duty. The possibility of interest payments should make a town think twice before denying §111F benefits. In addition, the threat of interest payments also should strengthen the bargaining power of the Union and the injured officer to resolve the case favorably short of litigation.
We can’t celebrate just yet. The SJC’s decision to review the case means that the decision could be reversed or affirmed. The case is expected to be argued in November with a decision to issue like to issue sometime in 2007.
A word of caution: the applicability of this decision to §111F arbitration cases is not automatic. Persons wrongfully denied IOD benefits may be able to seek relief from an arbitrator, instead of a judge. Many collective bargaining agreements permit §111F claims to be raised in the grievance/arbitration process. (Even if a CBA contains no express provision on IOD or §111F, unions still could challenge a denial of benefits by citing other provisions, including wages, paychecks, sick leave, etc.) Arbitration generally is less costly and time-consuming.
However, interest is not a traditional remedy in arbitration cases. As such, an arbitrator may be reluctant to deviate from the norm and order interest in a §111F case. At the same time, some arbitrators interpret a CBA more generously than §111F. For interest, the statute does not require paid leave benefits to accrue while an officer on IOD. Many arbitrators, depending on contract language or past practice, order employers to pay these benefits.
If you feel you have been wrongfully denied §111F benefits, you should consult with your union counsel in advance about your options.

Sandulli Grace In The News

Sandulli Grace, PC Wins Reinstatement For Fall River Police Officer

Sandulli Grace Staff September 5, 2006

For the second time in a decade, the law firm of Sandulli Grace, PC has secured the reinstatement of Fall River Police Officer terminated for substance abuse. More than a decade ago, the City unilaterally implemented a drug policy, including testing, and fired a police officer for alleged violation of it. With the help of Sandulli Grace, the Union fought the City’s action before the Labor Relations Commission and an independent arbitrator. Drug testing is a mandatory subject of bargaining. Moreover, in a unionized setting any termination, even where a drug test is involved, still must satisfy requirements of just cause, including due process and progressive discipline. The Union prevailed in both settings, securing reinstatement and back wages for the terminated officer.
As a result of these victories, the parties negotiatedcomprehensive drug testing language. The language provided a number of protections to officers suspected of drug use, including an internal appeals process, the use of a certified laboratory, and other mechanisms to challenge the result.
In 2005, the City terminated a (different) police officer foralleged substance abuse. In this case, the City suspected an officer had been abusing drugs and demanded to review his medical records. When his records revealed an allegedly incriminating test result, the City fired him. After hiring Sandulli Grace to fight on his behalf, the officer’s termination was reversed by an arbitrator.
In a decision issued Spring 2006, Arb. Robert J. Canavan found that the City could not circumvent the drug testing language by just plumbing an officer’s medical files. The City, therefore, failed to produce clear and convincing evidence that the officer abused drugs.The Arbitrator ordered the City to reinstate the officer and pay lost wages, including for missed details and overtime opportunities.