Monthly Archives: December 2008

In Our Opinion...

Arbitrator Rules That Internal Affairs Policies And Procedures Are Incorporated Into Police Union Contract

Sandulli Grace Staff December 11, 2008

In a case between the Boston Police Patrolmen’s Association, Inc. (BPPA) and the City of Boston, Arbitrator Michael Ryan found  that the Internal Affairs procedures of the Boston Police Department Rules are “benefits” incorporated into the collective bargaining agreement. And that the Union may grieve the City’s violation of its own IA policy.  The arbitrator explained that the Internal Affairs rules “codified” the Department’s “complaint and investigatory procedures, thereby ensuring consistency and predictability” concerning the handling of complaints of misconduct against officers.  An “inherent purpose” of the rules “is to ensure fair disciplinary procedures.”  He therefore found that “the complaint and investigatory procedures” of the internal affairs rules “are advantageous to officers and constitute benefits” under the contract. 

Relying on the language of the contract that states “benefits” specified in the published rules and regulations, general and special orders in force …” are continued in force, the arbitrator determined that “a benefit,” within the meaning of the contract article, encompasses policies, rules, and regulations that are advantageous to officers.”  Therefore, the “complaint and investigation procedures” of the police department rules constitute such benefits and are incorporated into the collective bargaining agreement.  As result, the internal affairs procedures are enforceable at arbitration.

            Although the arbitrator in this case did not find that the City  violated its IA rules based on the facts at the hearing, his Decision represents a tremendous victory for the BPPA.  The Decision enables the BPPA to require the Boston Police Department to follow its own internal affairs procedures.  It also  guarantees that the officers have an avenue for challenging violations of the internal affairs complaint and investigatory procedures. 

Download the decision

In Our Opinion...

Employer May Violate Employee’s Rights By Refusing To Provide Religious Accommodation To Grooming Policy

Sandulli Grace Staff December 4, 2008

Massachusetts law prohibits employers from requiring employees to violate a religious practice and therefore requires employers to provide a “reasonable accommodation” of their religious practice, so long as the accommodation does not create “undue hardship” for the employer. In Brown v. F.L. Roberts & Co., Inc., SJC-10155 (Dec. 2, 2008), the Supreme Judicial Court of Massachusetts ruled that the owner of a Jiffy Lube facility violated the law, G.L. c.151B, §4(1A), if it refused to provide a religious accommodation to its new grooming policy.

Here, the company implemented a grooming policy as part of a marketing strategy to increase business. Seriously. The new policy required employees who had contact with customers to be “be clean-shaven with no facial hair . . . . Hair should be clean, combed, and neatly trimmed or arranged. Radical departures from conventional dress or personal grooming and hygiene standards are not permitted.” The company, curiously, did not implement this policy at any of the other retail establishments it owned. The plaintiff, Bobby Brown, had occasional employee contact in his position and therefore was subject to the new policy. As Brown’s Rastafarian religion prohibits him from cleaning or shaving his hair, he asked for the employer to exempt him from this policy. The company refused, and instead transferred him to a position that did not involve customer contact, and that provided fewer breaks or certain other perks. Brown also alleged that the company refused to discuss any alternatives to its grooming policy.

The Court concluded that the company here violated the law, if Brown is able to persuade a jury of his version of events. The Court ruled that exemptions to a company grooming policy do not automatically create an “undue hardship” and therefore do not automatically protect a company from liability. The Court also ruled while it is not necessary for the employer to grant an employee’s specific request for an accommodation, the employer has a duty to explore acceptable alternatives with the employee. In reaching this conclusion, the Court discussed a previous case in which the employer refused the employee’s request for an exemption to a grooming policy but proposed several other accommodations. The employer in that case did not violate the law. Here, Brown alleged that the employer refused the request for a complete exemption from the policy and simply re-assigned him without exploring any alternatives. The Court concluded that a jury will have to decide whether the Company’s unilateral re-assignment of Brown qualified as a reasonable accommodation.

In Our Opinion...

Public Employee’s Stress, Anxiety Caused By Negative Publicity and Prisoner Harassment Is Covered Under Massachusetts Workers’ Compensation Act, SJC Rules.

Sandulli Grace Staff December 1, 2008

Recently, the Supreme Judicial Court ruled in Cosmo Bisazza’s Case, SJC-10183 (Nov. 20, 2008), that mental and emotional injuries are analyzed under the same standard as physical injuries under the Workers’ Compensation Act.  An employee is eligible for workers’ compensation if the employee “receives a personal injury arising out of and in the course of his employment.”  G. L. c. 152, §26.  The legislation defines “personal injury” to include an emotional or mental injury if “the predominant contributing cause of such disability is an event or series of events occurring within any employment.”  G. L. c. 152, §1.  The SJC held that disabling stress and anxiety caused by negative media coverage and prisoner harassment may be covered by the Workers’ Compensation Act.

In this case, a correction officer suffered post-traumatic stress disorder (“PTSD”) and stopped working after he was falsely accused by inmates and the media of abusing inmates including convicted child molester and former priest John Geoghan (Geoghan was later murdered by another prisoner).  Initial media coverage in the wake of Geoghan’s murder included accusations that unnamed officers harassed Geoghan.  Thereafter, prisoners taunted the officer and threatened to “get” him and spread lies to the media about his treatment of Geoghan.  Newspapers subsequently reported prisoner allegations that the officer tortured Geoghan and placed excrement in his cell.  Though the officer ultimately was transferred and cleared of all misconduct, a psychiatrist concluded that he suffered from PTSD as a result of work-related trauma, including inmate harassment and negative publicity.  The psychiatrist further concluded that the misleading press coverage was more at fault for the PTSD than the actual prisoner harassment.  A board of the Division of Industrial Accidents, which is the state agency that handles disputes under the Workers’ Compensation Act, granted benefits to the officer.

On appeal, the SJC rejected the employer’s argument that mental and emotional injuries require a higher standard of “work-relatedness” than physical injuries.  The SJC also upheld the DIA’s conclusion that the officer’s injuries were sufficiently work related. 

The Court’s decision in Cosmo Bisazza’s Case contains at least two interesting aspects.  First, the Court declined to rule on whether PTSD caused only by negative publicity related to job performance qualifies for workers’ compensation.  While the Court agreed that the negative press was the predominant cause of the PTSD, it also noted that prior to the media coverage, the prisoners harassed the officer and threatened to spread lies about his treatment of Geoghan to the media.  The negative publicity, therefore the SJC concluded, was an extension of the inmates’ campaign of work-place harassment against the officer, rather than an independent phenomenon. 

Second, the Court appeared to distance itself from the one of the more repugnant Workers’ Compensation decisions in the past.  In Collier’s Case, 331 Mass. 374 (1954), the Court ruled that a waitress was ineligible for benefits after she was beaten by a male customer after work, after the two had argued during her earlier shift.  The SJC stated in a footnote, “Although we need not decide the point, it is questionable whether the court would rule as it did in Collier’s Case, 331 Mass. 374 (1954), if those same facts were before it today.”