The Massachusetts Supreme Judicial Court proved once again that it is
increasingly unsympathetic to the interests of public employees with a
recent decision that lets municipalities deprive certain retirees of
basic health care coverage. In the case of Cioch v. Treasurer of
Ludlow, the SJC handed municipalities a big pair of scissors to cut
health care costs – by letting them deny coverage to retirees not
enrolled in a municipal plan at the time of retirement. While this
decision is an immediate setback for public employees, it ultimately may
be a case of “be careful what you wish for.” In the long-term, the
Cioch decision likely will increase health care costs for public
employers.

The SJC supported Ludlow’s position and ruled that municipalities may
ban post-retirement enrollment in their health insurance programs.
Ironically, while Massachusetts has earned international coverage for
its universal health care efforts, the SJC is letting municipal
employers go in the opposite direction. This decision is particularly
cruel to an unknown number of public employee retirees who politely
declined coverage from their employer throughout their career in an
effort to save money for all parties.

Massachusetts law on municipal health insurance, Chapter 32B, §§9, 16,
requires employers to provide health insurance to all employees working
at least 20 hours a week and to continue providing such coverage after
retirement. More than a decade ago, the Appeals Court and the SJC ruled
in McDonald v. Town of Sturbridge, 39 Mass. App. Ct. 479 (1995), S.C.,
423 Mass. 1018 (1996), that Chapter 32B does not forbid coverage of
retirees who were not covered while active employees. The SJC’s cryptic
one-paragraph decision in McDonald was unclear whether and to what
extent municipal employers may ban post-retirement enrollment via
regulation. The issue faced by the SJC in Cioch is to resolve the issue
left open to debate by McDonald: whether cities and towns can deny
coverage to retirees who were not enrolled in a municipal plan at
retirement. Cioch puts this query to rest by ruling that municipalities
may adopt regulations that ban post-retirement enrollment, despite the
considerable savings reaped by employers when these employees declined
coverage during their employment.

The Cioch case involved the plight of 68-year old retired teacher Joanne
Cioch.During her 22 years of employment with the Town of Ludlow, Ms.
Cioch was insured by her husband’s employer. This step resulted in
savings to Ludlow that totaled in low-6 figures over her employment.
Sometime after Ms. Cioch and her husband retired, they lost access to
health coverage by her husband’s former employer. Ms. Cioch then sought
such benefits from her Ludlow, which denied the request. With the
assistance of the Massachusetts Teachers Association, she sued.
Sandulli Grace, PC, on behalf of the Boston Police Patrolmen’s
Association, Inc., filed a “friend of the court” brief in support of the
Cioch and the MTA.

The SJC supported Ludlow’s position and ruled that municipalities may
ban post-retirement enrollment in their health insurance programs.
Ironically, while Massachusetts has earned international coverage for
its universal health care efforts, the SJC is letting municipal
employers go in the opposite direction. This decision is particularly
cruel to an unknown number of public employee retirees who politely
declined coverage from their employer throughout their career in an
effort to save money for all parties.

Cioch spares public employers of the expense of retirees not previously
enrolled in health insurance plans. But it’s a case of municipal
managers being penny-wise and pound foolish as the SJC decision likely
will result in increased health care costs for cities and towns. The
Cioch decision encourages police officers and other public employees who
currently are not covered by municipal plans to now enroll in City plans
– even if the employees have more affordable or more comprehensive
options through their spouses. Instead of saving $10-15,000 in health
care costs per employee per year for their employers, public employees
now have every incentive to enroll in costly municipal health care
plans, thereby increasing the employer’s financial burden. In other
words, the SJC’s Cioch decision arguably accelerates the health care
budgetary crisis faced by municipal employers.

In light of this decision, employees and labor unions should consider
several steps to guarantee health insurance to retirees: (1) enroll in a
municipal health care plan prior to retirement; (2) negotiate a
provision in the collective bargaining agreement that entitles active
employees to enroll in a municipal health plan anytime during retirement
(or to switch insurance plans), regardless of whether the employee
previously was enrolled in a municipal plan; (3) negotiate a provision
to require employers to individually notify employees who decline
coverage of the possibility th at they may lack access to
post-retirement enrollment; and/or (4) require the employer to notify
employees and labor organizations if it ever considers placing
restrictions or exclusions on post-retirement enrollment.

In a footnote, the SJC signaled another potential problem area for a
certain class of public employees: “deferred retirees,” also known as
employees who quit or are fired from employment prior to being eligible
for retirement benefits (or prior to employee retiring). If, under
Cioch, a municipality is permitted to restrict retiree insurance
coverage to persons on the health care rolls at the time of retirement,
these deferred retirees arguably are, by definition, ineligible for
retirement coverage even if they were enrolled in a municipal plan at
the time they left the job.

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The Massachusetts Appeals Court chipped away at the foliage surrounding management rights when it upheld the authority of an arbitrator to order the promotion of a grievant wrongfully denied a job.

In City of Somerville v. Somerville Municipal Employees Assn, #06-P-1299 (July 23, 2007), the union challenged the mayor’s appointment of a non-unit employee to Veterans’ Affairs Director. The Mayor is empowered by statute to make this appointment and his decision, under the principle of “management rights” is not subject to arbitration. But the City and the union negotiated a provision that provides a preference to the most qualified, senior unit member. The arbitrator found, and the City did not dispute, that the grievant was at least as qualified as the Mayor’s appointee. As such, the arbitrator directed the City to appoint the grievant to the position.

The Appeals Court rejected the City’s arguments to overturn the arbitrator’s award. While appointment selections and assignments are entrusted to public employers, the Appeals Court affirmed that public employers and unions nonetheless may negotiate a process for the selection of an appointment or promotion. The seniority preference here fell into this exception to managerial rights.

This decision is noteworthy because it affirmed the power of an arbitrator in remedying the contract violation to direct an appointment. In other circumstances, such as civil service, tribunals are reluctant to vacate a management decision, no matter how erroneous. This Somerville decision should strengthen union challenges to personnel decisions by the public employers that violate a contract. In addition, the case shows that “management rights” is not a failsafe defense or magic wand.

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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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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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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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The Bad News – Massachusetts Appeals Court Rules That Chief May Force Officer To Submit To Polygraph Even If Junk Science And Not Pursuant to A Criminal Investigation.

In a textbook example of letting “the exception swallowing the rule,” the Massachusetts Appeal Court has ruled that a police officer can be forced to submit to a lie detector examination under threat of discipline in most circumstances. This case further pushes the limits of when a police chief can require that an officer undergo a lie detector despite the fact that the legislature has outlawed the use of lie detectors in all but the most limited circumstances for almost fifty years. Sandulli Grace, PC, on behalf of the Massachusetts Coalition of Police (MCOP), has joined the fight to overturn this ruling.

The Massachusetts General Court first outlawed the use of lie detectors on the job in 1959. Then, as now, the legislature knew that lie detectors are unreliable, and that employees should not be forced to choose between their jobs and being forced to submit to a high-tech version of a tea leaf reading. The lie detector prohibition, codified at General Laws Chapter 149, § 19B, contains a very limited exception that allows for the use of “lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.” For years, the courts have allowed tests only when given as part of an ongoing criminal investigation of the incident in question. And the Supreme Judicial Court has ruled that polygraph tests are inadmissible in court because their reliability and credibility is unproven.

Unfortunately, the Appeals Court turned that requirement on its head earlier this month in the case Furtado v. Town of Plymouth, 69 Mass.App.Ct. 319 (June 11, 2007). In Furtado, the court ruled that the officer in question could be forced to take a lie detector test under threat of discipline even there was no ongoing or contemplated criminal investigation. The Chief obtained transactional immunity against prosecution, meaning that the officer was compelled to give a statement. The court ruled that the case fell within the exception to the law since “allegations of criminal conduct” were present – even though the grant of immunity made any criminal charges (and one would therefore assume investigation) impossible.

The impact of the Furtado decision is that Chiefs arguably can require officers to submit to lie detectors whenever there is a possibility of “criminal conduct.” Does the chief think you may have jaywalked? Sit down and strap on the electrodes. This decision confirms the worst suspicions of many police officers that they are second-class citizens under the law: if polygraphs can’t be demanded of all other employees and also can’t be used against criminals – how can police officers be ordered to submit to the junk science examinations and have those examinations used to justify discipline or termination.

We here at Sandulli Grace obviously think that this decision goes against the legislature’s intent in outlawing workplace lie detectors. We have been in contact with the attorneys for Officer Furtado, and MCOP has pledged to help urge the Supreme Judicial Court to overturn this decision.

But Wait, There’s Good News Too! Civil Service Commission Tosses Out Lie Detector Tests

Just two days after the Appeals Court issued Furtado, the Massachusetts Civil Service Commission ruled that a City cannot introduce evidence of a lie detector test in a case charging an officer with lying. The case involved the one-year suspension and demotion of a municipal police sergeant, whose discipline was based in part upon the results of a polygraph examination. Sandulli Grace Attorney Bryan Decker argued that the polygraph evidence, even assuming the test was legal under Furtado, should not be allowed into evidence because lie detector tests are so unreliable as to be (in the words of the Maryland Appeals Court) “incompetent.” In line with the SJC’s decision rejecting the admission of polygraph tests in criminal cases, the Commissioner refused to allow the polygraph evidence in the case, even though the rules of evidence do not strictly apply. The Commission joins other states such as Illinois, Maryland and Ohio that refuse polygraph evidence in administrative hearings when a public employee’s job and reputation are on the line.

The ruling from Commissioner John Taylor was issued from the bench during the hearing, and Commissioner Taylor stated that a full written decision on the polygraph issue would be included in his ultimate decision in the case, which is subject to a majority vote of the five-member panel of Commissioners. We’ll keep you posted.

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Appeals Court has held that the Massachusetts Bureau of Workers Compensation, which administers benefits to employees injured on the job, properly granted disability benefits to an injured truck driver, despite an independent medical report to the contrary. This decision to provide some comfort to injured employees who receive a negative evaluation of their claim from a Bureau-affiliated doctor.

Under Workers’ Compensation law, a person claiming a work-related injury may be required to submit to an independent medical examination. In Robert Dalbec’s Case, 69 Mass. App. Ct. 306 (06-P-358) (June 2007), a tanker truck driver was unable to work after a slip-and-fall injury on the job. The Independent Medical Examiner found that the claimant was capable of returning to unrestricted full-time work. The Administrative Law Judge (Judge), who heard testimony from the claimant about the physical stresses required by the job and his ongoing physical pain, rejected the IME report and awarded partial disability benefits.

The Appeals Court ruled that a negative IME report creates a presumption that the employee is ineligible for benefits. But this presumption, the Court held, can be rebutted simply by critiquing the report and determination that it is unfounded or unreasonable. The Appeals Court agreed that the IME doctor’s report and deposition testimony suffered from several major weaknesses, including a failure to assess the injury in light of the job duties and a failure to conduct critical tests about the employee’s fitness. Whereas the doctor appeared not credible, the Judge found the injured employee to be highly credible and the Judge conducted his own comprehensive analysis of the injuries and the job duties.

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In a recent decision, Ariel v. Town of Kingston (#06-P-825) (June 6, 2007), the Appeals Court affirmed that Massachusetts police officers and their public employers are protected from negligence lawsuits. The Massachusetts Tort Claims Act states that Massachusetts public entities cannot be sued for an alleged "failure to provide adequate police protection, prevent the commission of crimes . . . or enforce any law.” (See General Laws Chapter 258). In this case, the victim of a car crash sued the Town of Kingston, claiming that the negligent direction of traffic by two police officers caused another car to collide with her. The Appeals Court disagreed. “[The] police officers’ direction of traffic on a public way constitutes a form of providing police protection to the public for the risks involved in motor vehicle traffic.” These actions did not qualify as an affirmative promise of police protection. The court’s decision affirms a general understanding of the scope of immunity provided by the MTCA. Because the town and officers were immune from suit under the above language, the Court also found that other provisions of the MTCA did not provide basis for a different claim of negligence.

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Last year, the Supreme Judicial Court held that public employers must pay pre- and post-judgment interest on lost earnings when they incorrectly deny a claim for injured-on-duty benefits under Massachusetts General Laws 41, §111F. (see our previous blog entry) In another victory for injured public safety officers, the Appeals Court has affirmed that §111F claims may be subject to arbitration and may be awarded to officers for stress-related injuries. As the arbitrator awarded §111F benefits to an officer who might not otherwise be entitled to him, this case supports arbitration as the most effective means to resolve disputes about whether an officer was legitimately injured-on-duty.

In Town Of Duxbury v. Rossi

(May 15, 2007), an officer’s stress-related hypertension worsened after he argued with his supervisor about swapping shifts. The officer left work immediately following the argument due to elevated blood pressure, but the Town refused to place the officer on paid injury leave. The town’s physician agreed that his stress was work related and that he was not yet ready to return to work. A neutral arbitrator agreed that the injury qualified for IOD pay under the collective bargaining agreement.

The Town asked the courts to vacate the arbitration award. In an example of everything-but-the-kitchen-sink form of argument, the town raised multiple arguments in support of it its appeal. The court rejected every single one.

First the court ruled that the arbitrator properly resolved a dispute about §111F benefits. Second, the Court rejected the Town’s specious argument that the arbitrator’s decision interfered with the Chief’s management rights. This ruling in particular shows that “management rights” is not a magic wand. Third, the court ruled an arbitrator has the power to award §111F benefits even if this award conflicts with the position of the Town’s physician. Fourth, the Court ruled that the arbitrator’s award of benefits does not violate public policy even if the officer was not entitled to §111F benefits for hypertension induced by interpersonal dispute at work. In other words, even if arbitrator made errors of fact and law, the decision must be affirmed. Finally, the court ruled the arbitration decision was not voided by a subsequent court action by the officer addressing his later return to work.

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In Pellegrino v. Springfield Parking Authority (May 17, 2007), the Massachusetts Appeals Court affirmed that retirees from Massachusetts public employment cannot work for another state or local public employer in Massachusetts, including quasi-public agencies. Under Massachusetts General Law Chapter 32, § 91, individuals collecting benefits from a state or local retirement program generally cannot be paid for services rendered to another public employer. The limited exceptions to this ban on post-retirement public employment include when a retiree waives his right to retirement allowance during the period of post-retirement enrollment, or when the retiree works no more than 960 hours and earns no more between employment and retirement than the current salary for the position from which the former employee retired.

While the above rule is relatively straightforward, Kathleen Pellegrino argued that this prohibition on post-retirement employment applies only to public retirees who work for the state or local governments and not to public retirees who work for quasi-public entities such as the Springfield Parking Authority. The court disagreed.

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