A federal trial court in Georgia has ruled that the police department violated the First Amendment when its internal affairs division inquired the union’s alleged involvement in firing the current Chief, where such alleged off-duty activities had no relation to the alleged on-duty misconduct of a single officer’s “mutinous statements.” The Court also ruled in the case, Local 491, IBPO, v. Gwinnett County, Ga. (N.D. Ga May 7, 2007), that the Department’s ban on the off-duty sporting of uniforms by union officials at public meetings was not unconstitutional or otherwise illegal. [The decision initially was issued in May but it was only released to a legal database this week.]

In this case, a patrol officer was overheard talking to other patrol offers about his involvement in recruiting and interviewing potential candidates to replace the current Chief. His involvement was commissioned by county leaders. The Chief, once alerted to the officer’s plans in the efforts to oust him, ordered an investigation into whether the officer’s actions violated department rules regarding loyalty and support. In the course of the investigation, the Department also interviewed members of the police union’s executive board about whether the union advocated the Chief’s removal, and whether officials discussed this issue with county leaders. IAD sustained two charges of misconduct against the officer, but the Chief declined to prosecute or discipline the officer.

In a robust victory for the rights and abilities of police unions to organize, the Court ruled that the Department’s questions about the union violated the First Amendment’s guarantee of engaging in associational activity without government interference. The Court’s analysis balanced the interests of the Union and their members against the interests of the Department in morale and internal order. The tipping point appeared to be that the sheer irrelevance of the suspected union activity into the investigation’s stated purpose.

[B]y asking questions about whether the leaders of Local 491, in the course of their organizational participation, had expressed opinions concerning the replacement of the current police chief, and by asking whether they had engaged in communications with members of the Gwinnett County Board of Commissioners, Internal Affairs investigators intruded into quintessentially protected associational activity. Although the questions were asked in connection with a legitimate inquiry into Officer Fouchia’s on-duty conduct, it is not clear how, in determining whether disloyal statements were made on duty, it was relevant-much less necessary-for the Internal Affairs investigators to determine whether similar statements had been made off duty in connection with protected union activity.

Notably, the Court did not rule that Departments may never investigate union activity. Yet, the decision still serves as a cautionary tale to Departments contemplating a fishing expedition into union pursuits.

The Court also ruled that the Department’s ban on wearing uniforms off-duty at public meetings was not illegal, absence evidence of selective enforcement or exemptions based on the content of the meeting or speech at hand. “Inasmuch as it does so indiscriminately,” the Court ruled, “the First Amendment does not forbid a government from jealously protecting and zealously restricting the use of its uniforms for non-official purposes.”

Please note that this case’s interpretation of the U.S. Constitution and federal law have no force in Massachusetts. It still may be persuasive authority to a local court confronting a similar issue. Also, Massachusetts courts and agencies may provide better protections under state law.

In Olsen v. Teachers Retirement Board (Oct. 9, 2007), the Brockton Education Association and the Brockton school committee agreed to increase the percentage of health insurance premiums paid by employees by five percent in exchange for a stipend paid to employees enrolled in health plans that was equivalent to the dollar amount of the increased premium payments. The parties also agreed to increase the stipend annually by the cost of living wage increases dictated by the contract. The contract language specifically states.

Beginning on July 1, 2004, the listed stipends will be increased by the amount of the general salary increase in that year and in future years. Eligible teachers who change plans, change level of coverage, or drop off of health insurance entirely after June 30, 2003 will continue to receive the stipend that corresponds to the plan and level of coverage that they had during 2002-2003. Eligible teachers who return from an approved leave of absence or who are recalled after a layoff will remain eligible for the stipend. Eligible teachers who resign and who later are rehired, however, will no longer be eligible for the stipend.

The Appeals Court agreed with the complaint brought by two teachers that these stipends qualified as “regular compensation” under the state law regulating public retirement pension systems, General Laws, Chapter 32B, §1. As a result, the stipends must be included in the formula that determines pension allowance for retirees.

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In the latest decision concerning the application of Fair Labor Standards Act to Massachusetts public safety officers, Judge Stearns of the U.S. District Court for the District of Massachusetts ruled on which payments must be added to the overtime rate; whether details performed for a public employer must be paid at the overtime rate; whether certain superior officers are exempt from the FLSA; and how the employer calculates the damages it owes for FLSA violations. The results, from a public safety union standpoint, were mixed. The case is Murphy v. Town of Natick, CA#04-11996-RGS (D.Mass. Sept. 25, 2007).

The FLSA guarantees that most employees, including public sector employees, receive 1.5 times their “regular rate” (or base pay) for hours actually worked beyond 40 in a 7-day pay period. Section 207(k) of the FLSA permits public safety employers to elect a different overtime threshold specifically for police and fire employees – the range is from 43-hours/7-days to 171-hours/28 days for police and 53 hours/7 days to 212 hours/28 days for fire fighters. This is commonly known as the §207(k) or §7(k) partial overtime exemption.

Most public safety unions have negotiated collective bargaining agreements that provide better overtime benefits than the FLSA, for instance in terms of hour rate, daily overtime, and minimum payments, under most circumstances. In limited situations, however, the FLSA provides a better benefit than the contract, and numerous unions have taken employers to court to obtain those statutory entitlements.

To summarize the rulings in Murphy v. Town of Natick:

First, the Court ruled that the federal overtime rate for police officers MUST include shift differentials, education incentive, assignment differentials, and community services, but not in-service training stipends. (Please note that these payments must be included only when the FLSA compels the payment of overtime and not necessarily when the union contract does. Normally, union contracts require overtime pay for many hours that are not deemed overtime-eligible by the FLSA and may use an overtime rate that does not include wage supplements.)

Second, the Court ruled that details for any town department, such as the recreation department, DPW, and the schools, are considered “hours worked” under the FLSA and must be paid at FLSA overtime rate (instead of the lesser detail rate) if they are worked beyond 40 hours. (If the detail rate is greater than the FLSA overtime rate, then the detail rate applies.)Judge Stearns’ decision has two highly controversial features involving the application of the FLSA to superior officers and the calculation of damages owed by the Town. First, Judge Stearns appeared to rule that superior officers are by definition exempt from the protections of the Fair Labor Standards Act. “Executive” employees are exempt from the entitlement to overtime under federal law and are defined as employees who a) are paid on a salary basis of at least $455 per week; b) have a primary duty of managing the workplace; c) customarily and regularly direct the work of two or more other employees; & d) have the authority to hire or fire other employees or whose suggestions and recommendations in this reqard “are given particular weight.”

Under regulations issued by the Department of Labor in 2004, this exemption does not apply to

police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

29 CFR 541.3 (emphasis added). Judge Stearns interpreted this regulation narrowly as applying only to officers in the “rank” of detective (detective, as most people know, is an assignment rather than a “rank”). This interpretation, to us, flies in the face of the regulation’s plain language, which already lists detectives and all other titles, and the purpose of the exemption. We interpret the regulation as protecting superior officers who engage in actual police work (such as a patrol supervisor or ranking detective) and exempting only those superior officers, if any, who primarily supervise other employees or handle administrative tasks.

The 2004 regulations also added a requirement that executive employees, to be exempt from the FLSA, must possess the authority to hire or fire employees or to effectively recommend such actions. In Natick, the Judge found that “superior officers play an influential role in the process by evaluating and interviewing new hire candidates as well as candidates for promotion.” In many other communities, superior officers play little, if any, role in personnel decisions and therefore may be protected by the FLSA.

In the second controversial aspect of the decision, Judge Stearns ruled that the Town may offset its liability by considering the amount of premium pay (in other words, the one-half of the regular rate paid in addition to the regular rate) it paid that exceeded the overtime due under the FLSA and was required by the union contract or some other requirement.. This is commonly known as the “premium offset.” Plaintiffs and union advocates argue that the Town may only offset its liability on a pay period-by-pay-period basis (For example, if the FLSA required Officer Smith to receive $50 more during Week A, but the contract required the Town to pay overtime premiums in excess of the FLSA of $30 for that week, the Town could reduce its liability to $20 for Week A. But if the Town paid excess premiums in Week B of $20, it could not use this excess payment to reduce its Week A liability to $0). Taking its cue from the latest chapter in O’Brien v. Town of Agawam case, another recent Massachusetts decision, Judge Stearns agreed with the Town that it may apply a credit “regardless of when the premiums were paid and when the overtime work occurred.”

Curiously, the issue of the §7(k) exemption did not arise in Murphy, because the Town conceded that it had not adopted any such exemption, thus supporting the ruling of the U.S. First Circuit Court of Appeals in O’Brien v. Town of Agawam that, at least in police departments with a ‘4 and 2’ schedule, a §7(k) exemption is not automatic. A Town must take affirmative steps adopt §7(k) in order to receive its benefits.

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On September 27, 2007, Governor Patrick signed legislation that will require covered employers to recognize a union based on a showing that a majority of employees want to form a union. In doing so, Massachusetts joined a handful of states that have outpaced the U.S. Congress in enacting worker friendly legislation. Last June, a federal bill that would have extended similar rights to employees was derailed when Republican senators threatened to filibuster.

The bill, which amends c. 150A and c. 150E, applies to public sector employers, and to the limited number of private sector employers not covered by the National Labor Relations Act (such as race track workers and workers at quasi-public commissions). The main impact of the bill is the elimination of lengthy waits for elections conducted by the Labor Relations Commission. Prior to the passage, employers could require employees to submit to the LRC election process, which in recent years has grown more lengthy as the LRC’s staff and budget have been reduced. Now, an employer must recognize a union once a neutral determines that a majority of employees have given their written authorization for representation. The neutral must be appointed within 10 days of the union’s presentation of the authorization to the employer, and must complete the verification within 30 days thereafter.

Unfortunately, some employers may still attempt to drag out the process by challenging whether the bargaining unit sought by the union is appropriate. It appears that the LRC will still need to conduct hearings when there is a dispute regarding the bargaining unit.

In practice, the Massachusetts law will have as much symbolic as practical effect. The public sector in Massachusetts is already heavily organized, and, even when a group is unrepresented, towns and cities most often do not engage in the type of anti-union campaigns seen in the private sector. In the private sector, employers often use the time created by delays in elections run by the National Labor Relations Board to bring in anti-union consultants to pressure employees not to exercise their right to join together to advance their interests. This law will not impact those employers, but will send a message that Massachusetts stands behind workers rights.

On the federal front, the Employee Free Choice Act (EFCA) would have extended similar rights to the vast majority of workers in the country, and would have strengthened other worker protections in the National Labor Relations Act. That bill passed the House of Representatives in March, but, as noted, died in the Senate. The AFL-CIO has made passage of EFCA its primary legislative goal, and the Democratic controlled Congress has vowed to send the bill to our next president for signing in January, 2009. All of the major Democratic candidates for president have indicated that they will gladly sign the bill into law at that time.

SJC Justice Oliver Wendell Holmes (later a U.S. Supreme Court Justice) once famously quipped in an 1892 case by a terminated New Bedford police officer against the Mayor: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”  The decision symbolized a callous view about the free speech rights of public employees, who like most employees were considered servants of their master.  The U.S. Court of Appeals for the Ninth Circuit has updated Justice Holmes’ famous line: “[the Plaintiff] may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the City at the same time.” 

In the case Dible v. City of Chandler, Arizona, the federal appeals court on the West Coast has ruled that the First Amendment does not prohibit a municipal police officer from being terminated for running a pornographic web site involving his wife.  The case involves another sharp reminder about the limitations of off-duty conduct placed upon police officers. 

The Arizona municipal police officer in question operated a web site that featured naked pictures of his wife, including footage of the wife having sex with the officer.  The couple also organized meet-and-greets for fans of the site at area establishments.  When the Department learned of the site, it investigated the officer, who lied during the investigation.  The City fired the officer, who subsequently filed suit in federal court.  

The Ninth Circuit wasted little time in rejecting the First Amendment claims of the officer.  Claims under the First Amendment balance the expressive activity of the employee versus the public concern for efficient public services.  The federal court placed enormous emphasis on the disruptive consequences of the officer’s activities police officers: intense and unflattering media coverage, reduced morale, and diminished recruitment, especially among women.  In other words, less popular speech is afforded less coverage.  (The officer argued that the Court’s ruling gave a “heckler’s veto” power to public employers).  The Court also noted the unique moral expectations placed upon police officers.

The situation here is compounded by a) the public nature of the officer’s off-duty activity; b) the economic profit motive of his activity; c) the lack of express political dimension associated with the officer’s activity; and d) the false or misleading statements told by the officer during an internal investigation.  A concurring opinion advocated an analytical approach more considerate of the rights of public employees.  The concurring judge suggested that the termination should have been upheld due to the officer’s admitted lies, not for the content of his off-duty activity.

The Court’s decision does not mean that the same result applies to a Massachusetts municipal officer involved in the same or similar conduct.  The Ninth Circuit has no authority over Massachusetts, which belongs to the First Circuit.  Moreover, state free speech laws and collective bargaining agreements may be interpreted to provide greater protections to police officers.

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