In late February, we alerted you to the General Court’s efforts to pass legislation designed to strengthen penalties imposed on employers by reinstating automatic treble damages for employees who prevail in wage and hour lawsuits against their employers. (See Feb 27 and Feb 29 blog entries). We’re pleased to tell you that the legislation has now become law, taking effect on July 13.

As we noted earlier, the Governor refused to sign the legislation after it was first passed, instead sending it back to the legislature with a request that the law be watered down in favor of employers. Both houses of the General Court quickly rebuffed the Governor’s attempt to weaken the law and returned it to him without change. The Governor therefore had to veto it, sign it, or do nothing, which will cause it to become law. He chose the third, and the bill has now become law because Patrick failed to sign it or veto it.

The law reaffirms that the legislature intended for employers to pay treble damages when they break the law. That intent was questioned by the Supreme Judicial Court three years ago, when the court instructed judges to examine whether the violation was intentional before deciding on damages. Efforts to “fix” the SJC’s interpretation were launched almost immediately, but failed under the Romney administration. The legislature is to be commended for not letting the issue go, and for standing up strongly in support of workers who face unlawful actions by their employers.

The Supreme Judicial Court has unanimously confirmed the general “coming and going” rule that most Massachusetts workers are not entitled to workers compensation benefits for injuries suffered while traveling to or from work, even when the injury is caused by work-induced fatigue. The case is another example of the SJC’s indifference to the plight of the modern employee.

The decision, Michael Haslam’s Case, SJC-09915 (April 8, 2008) [http://socialaw.org/slip.htm?cid=18071&sid=120], concerns Michael Haslam, a carpenters’ foreman, who was assigned to the the Big Dig project. When Haslam completed his regularly scheduled 5 a.m.-3:30 p.m. shift, the major assignment that day – pouring concrete – had not even started. A carpenter needed to be present when the concrete finally was poured, and Haslam believed he would be fired if he left the work site prior to the task’s completion. Therefore, he worked until 8:15 a.m. the next day, when the project finally was complete. Exhausted from a 27-hour work day, Haslam tragically fell asleep while driving home and crashed into a utility pole.

The Division of Industrial Accidents granted benefits, but the SJC overturned DIA’s decision. Critical to the SJC’s analysis was the “voluntary” nature of the foremen’s overtime assignment: the foreman was not personally obliged to work overtime (the union contract arguably prohibited mandatory overtime), and the foreman never sought someone else to complete the assignment. In other words, the SJC blamed the foreman for his exhaustion and placed no duty on his Employer to ensure that employees are not exploited or overworked. The Court did not seem to acknowledge the modern-day work environment where people labor under significant, although unwritten, expectations of performance and the Court failed to grant much weight to the benefit derived by the Employer from the foremen’s continued work.

In deciding whether the exhaustion is caused by work, the SJC basically asked whether a “reasonable person” would perceive the overtime assignment as excessive and mandatory, not whether the injured employee felt that such work was excessive or mandatory. For instance, the SJC noted that 27 hours of work would not generally be considered excessive for a firefighter assigned to 24-hour shifts.

The SJC noted a number of injuries that may compel a grant of workers’ compensation benefits, even if the injury occurs while the employee is traveling between home and work, such as: exhaustion caused by excessive amount of mandatory overtime; injury arising from a “special trip” by the employee made at the request or benefit of the employer (such as attendance at an off-site mandatory meeting; or working an overtime shift during inclement weather). Interestingly, the SJC seemed to be more sympathetic to injuries suffered while en route to work, as opposed to injuries suffered while returning home.

As a result of this decision, employees who work a lot of overtime should, prior to working beyond a normally scheduled shift, try to establish whether the employer is mandating that the employee perform the extra work.

The SJC’s decision does not automatically apply to claims for injured-on-duty pay by public safety officers, which are covered under a different statute, G.L. c.41, §§100, 111F, and typically are resolved via labor arbitration. Moreover, Massachusetts courts have suggested that police officers are “traveling workers” who are exempt from the “coming and going” rule. Under court cases and arbitration decisions involving §111F, police officers in particular have had greater success in having injuries incurred while “coming or going” to be recognized as work related, especially where: the officer is subject to a Department rule mandating that s/he act appropriately on and off-duty; the officer is available to respond to calls for public safety at the time of the injury; the officer is traveling a direct route between work and home; and the officer is paid a basic weekly wage regardless of actual hours worked. See, e,g., Wormstead v. Saugus, 366 Mass. 659 (1975) (officer who was injured while returning from paid lunch break and remained on call is entitled to benefits under §111F); Gardner v. Peabody, 23 Mass.App.Ct. 168 (1986) (officer injured on en route to work after being ordered to report was entitled to 111F benefits).

Early Wednesday morning, more than 70 percent of the 100 production and technical workers at Boston’s FOX25 (WFXT) television station overwhelmingly voted to join Local 1228, International Brotherhood of Electrical Workers. Local 1228 is one of the largest unions in New England representing workers in the broadcast industry, and has been a client of Sandulli Grace since the firm was founded by Joe Sandulli over thirty years ago. Local 1228 represents workers at television and radio stations throughout New England, and has long represented technical and production workers at WBZ (CBS), WCVB (ABC) and WHDH (NBC) in Boston. With the addition of FOX25, Local 1228 now represents employees at all 4 Boston network affiliates.

In early March, Local 1228 petitioned the National Labor Relations Board to confirm that a majority of technical employees at FOX25 wanted a union. Once the station learned of the worker’s intent to unionize, it engaged in a campaign against unionization through memos, staff meetings, and one-on-one sessions. To the station’s credit, while it urged workers not to unionize, it did not appear to engage in any illegal efforts to suppress the workers’ rights. Despite the station’s efforts, the workers remained united in their desire to join together. In addition, Local 1228 and the workers remained in constant contact, quickly responding to any anti-union memos with the facts about the benefits of unionization.

After agreeing with Local 1228 and Fox on the job titles and employees who get to vote, the NLRB scheduled the election for April 8. The bargaining unit is comprised of exactly 100 employees, including engineers, master control operators, editors, tape coordinators, photographers, van technicians, production technicians, Chyron operators, audio engineers, studio camera operators, jib and robotic camera operators, studio technicians, technical directors and directors. In order to ensure that all employees had a chance to vote, the NLRB conducted four separate voting periods, and the election actually extended into April 9, with the final voting period ending at 12:15 a.m. Stunningly, 97 of the 100 eligible voters cast a ballot.

After the close of voting at 12:15 a.m., Wednesday, April 9, representatives of Local 1228, FOX25 management, and about 20 excited FOX25 workers gathered in the “old studio,” where the vote was held, to watch an NLRB agent count the ballots. The excitement in the room was electrifying as the pile of “Yes” votes quickly grew. The final vote count was 70 votes for Local 1228 and only 27 votes for no union, a greater than 2-1 margin of victory! Unless Fox files objections to the election, the NLRB will certify Local 1228 as the democratically-elected collective bargaining representative of workers at FOX25.

Now that the employees at FOX25 have come together and gained a voice in their workplace, the real work begins. Local 1228 will work closely with its new members to develop proposals for an initial collective bargaining agreement. During the campaign, FOX25 committed that it would bargain in good faith with the union if the workers voted to unionize. Local 1228 is excited to begin the process of improving the working conditions of its newest members and to bring them in line with other Local 1228 members. And we here at Sandulli Grace remain honored to with work Local 1228, and are ready to assist the Local and its members as they move forward at FOX25 and beyond.

A recent Appeals Court decision gives employers another tool in keeping public employees from returning to work after disability retirement. In Facella v. City of Newton, 69 Mass. App. Ct. 459 (2007), the Court denied civil service rights to a police officer returning from retirement because her employer had fired her before she had completed a back-to-work retraining program. The case expands on the Supreme Judicial Court’s 2001 decision in Sullivan v. Town of Brookline.

The case arises from a complicated aspect of the public employee retirement laws. Individuals who are disabled from performing their duties because of an on-duty injury may retire with a benefit equal to 72% of their pay, tax free. Any retirees who subsequently become able-bodied had to return to work if a position was available and the employer chose to take them back. In 1996, after newspaper reports that disabled retirees were working in physically-demanding jobs while earning a state pension, the Legislature amended the law to eliminate the discretion of the employer. Now, the employer has to take back the employee if he or she is designated by the state as able to do the work. In two 1998 cases, White v. City of Boston, and O’Neill v. City of Cambridge, the SJC explained to reluctant employers that the law meant what it said and the returning retirees must be taken back, if a position was available. (To complicate matters further, if there is no position available, the returning retiree is given a preference for the next opening.)

At about this time, public employers whose employees were covered by civil service law pointed out that Section 39 of Chapter 31 of the Mass. General Laws required civil service employees who were returning to work after an absence of five years or more to successfully complete a retraining program designed by the employer and approved by the state Human Resources Division. A question arose: When does the right of reinstatement begin, before or after the retraining?

The SJC answered the question in Sullivan v. Town of Brookline, 435 Mass. 353 (2001), in favor of the employers, who generally wanted their obligation to reinstate the returning retiree to begin as late as possible. Sullivan, who was required to complete a retraining program, but had not yet completed it, had no right to reinstatement, the Court ruled. His right (and the town’s obligation) only began after he had successfully completed the retraining.

Facella v. City of Newton, decided in 2007, follows up on a question left unanswered by Sullivan: what are the rights of a returning retiree who has actually been reinstated, but has not completed retraining? The answer: few to none. In Facella, the Appeals Court strengthened the Sullivan court’s conclusion that successfully completing retraining is the key factor in determining the employment status of disability retirees who retired more than five years earlier. The state cleared Facella as physically fit to return to a police officer position after 19 years on disability retirement. The City reinstated her, relying on the law as it existed at the time. The City assigned her to a desk job for several months, and then sent her to the police academy for a 22-week retraining course. During the retraining course, health issues caused her to drop out of the academy and be placed on sick leave. When Facella had not completed the academy 18 months later, the City terminated her employment. Facella sought to appeal her termination using the legal protections for tenured employees under civil service law. Under that law, Facella would have the right to a hearing before the employer, and the right to appeal to the Civil Service Commission, which would order her reinstated unless the City could prove it had just cause to fire her. The Appeals Court backed the City, ruling that Facella had never finished the retraining program, so she had never been fully reinstated as a tenured officer. At best, she was “conditionally reinstated … subject to her completing a retraining program.” 69 Mass. App. Ct. at 464. In other words, a disability retiree cleared to return to work has no legal claim on the employment, and no right to just cause protection against termination, unless and until the retiree completes training.

Sullivan in 2001 and Facella in 2007 may represent a trend towards strengthening the rights of employers in the returning disability retiree arena, after the strong pro-retiree statements of White and O’Neill in 1998. On the other hand, they may be only the courts’ response to a specific problem: how do the right to reinstatement and the retraining obligation intersect? With Sullivan and Facella, we have the answer to that question. Until another case comes along.