Public Employee Loses Bid For Disability Retirement Because Injury Was Not Disabling Soon Enough

A public employee may be entitled to accidental disability retirement if the employee becomes permanently disabled from their job because of an injury or hazard undergone in the performance of their duty. Under Massachusetts law, Accidental Disability Retirement (ADR) provides these employees with 72 percent of their salary (based upon earnings from most recent 12 months or at the time of injury). This money is not subject to state or federal taxation.

In the 1996 decision Vest v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 191, the Massachusetts Appeals Court ruled that a public employee no longer employed for a Massachusetts government employer is eligible for ADR so long as the work-related injury was disabling at the time the employee left work (In Vest, the employee was retired). In other words, an employee injured on the job but whose disability does not fully materialize until after public employment may be ineligible – even if there is no dispute that the disability was caused by the work.

In the recent decision of Soucy v. Contributory Retirement Appeal Board, #06-P-551 (July 13, 2007), the Court affirmed the principles behind Vest and rejected arguments to limit their scope. Soucy was injured on in the job in January 1997 and was out of work until January 1998. She worked until August 2001, when she was laid off. At the time of the layoff, she remained in pain from the 1997 injury, but still was able to work as a teacher with some difficulty. Subsequently, she filed for Workers Compensation and, later still, ADR. She ultimately received a lump sum payment under Workers Compensation that was equivalent to 2.5 years of wages. A medical panel agreed with Soucy that she was permanently disabled from her job and that this disability occurred in the course of her job as a teacher. Still, as the complete disability was not developed at the time of her layoff in September 2001, her application for ADR was rejected because she technically was not a member of the Teachers’ Retirement System at the time the injury became disabling.

Soucy argued that the holding of Vest should not apply because her injury, while not disabling as of August 2001, became disabling during a period for which arguably was covered by Workers Compensation. The Court rejected this argument, saying that she stopped being a “member in service” eligible for ADR as of August 2001.

Massachusetts public employees facing retirement, termination, or layoff and who are considering the possibility of a future claim for work-related disability retirement, therefore are advised to seek medical confirmation of the disability prior to leaving employment.

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Mass Public Employees Have Right To Union Attorney During Interview

The Massachusetts Appeals Court strengthened the ability of public sector unions to defend members accused of misconduct by affirming that employees have a right to be represented by a union attorney during an investigatory interview. The case is Town of Hudson vs. Labor Relations Commission, No. 06-P-1191 (July 12, 2007)
Under Massachusetts Public Sector Collective Bargaining Law, Chapter 150E, public employees in a bargaining unit have a right to union representation during an interview that may lead to discipline for the employee being interviewed. This is commonly referred to as a “Weingarten” right, based upon the landmark case of National Labor Relations Bd. v. J. Weingarten, Inc., 420 U.S. 251 (1975). While Weingarten arose in the context of private sector labor law, the Massachusetts Labor Relations Commission, which administers public sector labor law for state, county and local employees, has applied this doctrine to public employees. The Supreme Judicial Court has upheld the application of Weingarten to public employees in the past. Here, the Appeals Court quoted the Weingarten case’s rationale for locating this right under federal labor law:

"This is true even though the employee alone may have an immediate stake in the outcome; he seeks ‘aid or protection’ against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.”

In Town of Hudson, the only dispute was whether the right to union representation includes a union attorney. The Court had little trouble in agreeing with the Commission that this right extends to attorneys retained by the Union. It held: “Therefore, for purposes of representation at a Weingarten interview, we see no distinction between representation by a union representative or business agent and representation by a union attorney." The Court was careful to note that this case did not involve a private attorney or outside counsel not involved in the regular collective bargaining relationship.

As a result of this decision, if the public employee requests the union-assigned attorney be present, the public employer has three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee a choice between continuing the interview unaccompanied by a union representative and having no interview at all. The employer cannot insist on continuing the interview without providing these options.

Please note, this decision does not require unions to provide members with legal representation. The choice of representative – whether a local official, bargaining agent, attorney, or no representative at all – is left to each individual union for each case and is guided generally by the union’s duty of fair representation. It also does not permit the union to impose a representative where the employee declines representation.

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Public Employee May Sue Employer For Statutory Benefit When Union Contract Is Expired

Under G. L. c. 126, §18A, jail employees and corrections officers are entitled to “assault pay” if injured by a prisoner or patient in their custody. The benefit is roughly analogous to injured-on-duty pay for police officers and firefighters under G.L. c.41, §111F (§111F benefits apply if the disabling injury is work-related, not just prisoner-related).

As with police union contracts that mention §111F benefits, the applicable collective bargaining agreement for the corrections official in the Appeals Court decision of Presby vs. Commissioners Of Bristol County, 06-P-1499 (July 2, 2007) made reference to assault pay benefits. The officer was injured while running to quell a fight among inmates. He then applied for assault pay, which the employer denied. The employer also denied a grievance filed by the officer. As the union contract was expired at the time and the Union could not demand arbitration of the grievance, the corrections officer then sued in state court for assault pay benefits.

On some occasions, an employee seeking benefits under a state law that also is referred to in the collective bargaining agreement must exhaust the grievance/arbitration procedures before going to court. For instance, there are some decisions ruling that a public safety officer seeking §111F benefits cannot skip the grievance route and proceed directly to court. Here, the Appeals Court ruled that there is an exception to this general rule when the contract has expired. Therefore, the employee’s suit was proper.

The Appeals Court went further and ruled that the officer was entitled to assault pay benefits because his injury arose in the course of responding to prisoner violence, even if no violence was inflicted upon him. This decision may be useful to off-duty public safety officers injured when attempting to respond to a call for service from the employer.

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