Under a new federal law, titled the Families First Coronavirus Response Act (FFCRA), the federal government has created several new programs to assist workers during the current crisis. There are now ten (10) additional fully paid sick days for employees unable to work either because of their own health concerns or those of others in the employee’s care. The same 10 paid leave days (at 2/3 pay, up to $200/day) may also be used to care for children at home due to school closures. These ten days are in addition to any other contractual benefit. The eligibility requirements to use these days are much less stringent than those in most collective bargaining agreements or employer policies. In addition, the 12 weeks of leave under the Family Medical Leave Act (FMLA) may now be used to stay home with children whose schools are closed. Unlike other forms of FMLA leave, employers must compensate employees at 2/3 of their pay, up to $200/day, for this entire leave period.
While the laws apply to all state and local employees (in addition to private sector employers with fewer than 500 employees), the law allows employers to exempt from its coverage “emergency responders,” a category that includes police officers, fire fighters, public health, and even public works personnel. However, we believe, based on case precedents in Massachusetts, that the decision of whether or not to exempt emergency responders, including police officers and firefighters, is a mandatory subject of bargaining under the Mass. collective bargaining law– meaning that a union can require a city or town to negotiate before it adopts the emergency responder exemption. If your city/town has already adopted the exemption without consulting with your union, you can demand that they rescind their acceptance of it and first bargain with your union. However, we know that some cities and towns have agreed to better benefits for emergency responders than are provided by this new law, so whether or not to demand inclusion in these benefits must be evaluated for each local union.
Attached is the U.S. Department of Labor’s synopsis of the FFCRA (which is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave).
This blog entry is for general informational purposes only. There are 124 pages of regulations and explanations issued by the U.S. Department of Labor to implement the new law. Before any union or individual takes any specific action under the FFCRA, consultation with a union official or attorney is strongly advised.
On April 2, 2020, a federal court judge dismissed a discrimination lawsuit against Local 950, International Association of Firefighers (the Brookline firefighters’ union) brought by one of its members. In granting the Union’s motion for summary judgment in Alston v. Town of Brookline, NO. 15-13987-GAO, the Court (Judge George O’Toole) found that there is no genuine issue of material of fact between the parties that needs to be settled through a trial and the matter could be resolved as a matter of law. In reaching this conclusion, the Court stated that the Plaintiff “fails to cite to competent, non-conclusory evidence in support of his objections to the defendant’s cited evidence.”
In 2015, the Plaintiff filed three federal civil rights claims against the Town of Brookline, various town officials, and the Union under Chapter 42, sections 1981, 1983, and 1985 of the U.S. Code. The gist of the claims was that the Union retaliated against the Plaintiff after he protested the discriminatory conduct of another Union member and that the Union failed to file grievances on his behalf because of his race. The Court rejected the 1983 claim, which requires government action, because, as the Court found, ““[t]he factual record does not support a conclusion that the Union was in any way acting under the color of state law… There is simply no evidence that would raise a genuine issue of fact that the Union became so allied with the Town’s actions toward [the Plaintiff] that it effectively became a state actor.” The Section 1985 claim, which requires a finding of a conspiracy between two or more parties, also failed after the Court concluded that “[t]here is no evidence that the Union and the Town were conspiring against [the Plaintiff] to retaliate or discriminate against him” and “there is no evidence in the extensive record that could support a conclusion … that the Union conspired with [the Town] to deprive [the Plaintiff] of his rights.”
The Court also dismissed the Section 1981 claim. To state a claim under Section 1981 a plaintiff must show that they are a racial minority, that they were discriminated against on the basis of their race and that the discrimination implicated one of the activities enumerated in the statute. One activity is the enforcement of contracts; the Plaintiff alleged that the Union had failed to enforce its contract with him because of his race and in retaliation for protesting the actions of other Union members. The Court rejected the Section 1981 claim, noting that “[s]ubstantively, the record lacks evidence that … the Union retaliated against [the Plaintiff] for any protected activity or otherwise itself discriminated against [the Plaintiff] (emphasis included).” The Court noted that the Plaintiff did not approach the Union for assistance: “It cannot be said to have been materially discriminatory for the Union not to have acted when it appeared [the Plaintiff] did not want it to act on his behalf.” Judge O’Toole also pointed out that many of the allegations against the Union were barred by the statute of limitations because they occurred too far in the past.
In addition to dismissing the Plaintiff’s claims against the Union, the Federal Court also dismissed the claims against the Town of Brookline and individual Brookline officials. The Plaintiff has already filed a notice of appeal to the U.S. Court of Appeals for the First Circuit, where the Court will review Judge O’Toole’s rulings. In the meantime, this victory for the Union is an affirmation of their consistent position that they fight hard for the benefit of their members – all their members – regardless of race, creed or color.
READ THE DECISION HERE