DALA Finds that Hazardous Duty Pay is Regular Compensation

Sandulli Grace Staff February 19, 2024

Retired Malden police sergeant and member of MassCOP Local 479, Paul McLeod, successfully appealed the Malden Retirement Board’s decision to exclude hazardous duty pay from regular compensation for purposes of computing retirement benefits. In January 2022, following an audit from the Public Employee Retirement Administration Commission (PERAC), the retirement board stopped treating hazardous duty pay as regular compensation; PERAC had recommended this change because it found there was “no service” associated with hazardous duty pay.

McLeod, represented by Sandulli Grace attorney Laurel Goldstein, appealed the retirement board’s decision to exclude hazardous duty pay from his regular compensation. McLeod argued that hazardous duty pay is regular compensation because it is compensation received as wages, specifically, pre-determined, non-discretionary, guaranteed payments received because of the character of police work. See 840 CMR 15.03 (3). The retirement board argued that it properly excluded hazardous duty pay because regular compensation is “received exclusively as wages…for services performed in the course of employment.” See M.G.L. Ch. 32, § 1, 840 CMR 15.03 (3). The retirement board argued that hazardous duty pay is not regular compensation because it is not for any additional service outside employees’ regular duties of being a police officer, despite having its own pay code, line on the pay check, and provision in the collective-bargaining agreement.

The Division of Administrative Law Appeals (DALA) agreed with McLeod that hazardous duty pay is regular compensation. It found that hazardous duty pay “obviously” satisfied the regulatory requirements for regular compensation:

It was disbursed once every pay period;
Its amount was predetermined and unvarying throughout each fiscal year;
It was not in any way extraordinary, adventitious, or ad hoc;
It did not depend on any discretion or contingency; and
It was available to all similarly situated employees.

DALA also rejected the retirement board’s position that hazardous duty pay is not regular compensation because it is a separately negotiated item, not part of officers’ contractual base pay. It credited the testimony of Lieutenant Evan Tuxbury, president of MassCOP Local 479, who explained that it is common practice in bargaining for municipal employers to agree to pay increases based on the specific features of work certain unions perform (e.g. hazardous duty pay for police officers), instead of including every pay increase in the contractual base pay. The full decision is available here.

Collective Bargaining, In Our Opinion..., Labor In The News

More On Sandulli Grace’s John Becker’s interview with Salon About The Recent Supreme Court Decision On Unions right To Strike

Sandulli Grace Staff July 10, 2023

ONLINE NEWS MAGAZINE SALON INTERVIEWS SANDULLI GRACE ATTORNEY ON RECENT SUPREME COURT DECISION ON UNION’S RIGHT TO STRIKE

Following the June 1, 2023 Supreme Court decision in Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174 (No. 21-1449), the online news magazine Salon reached out to Sandulli Grace for expert commentary. In an 8-1 decision, with Justice Amy Coney Barrett writing the majority opinion, the Court ruled against the Teamsters Union and in favor of the employer in a dispute involving the right to strike and federal preemption law. The union had called a strike of its employer, who makes and delivers concrete to construction sites, at a time designed to inflict maximum economic damage and thus increase their bargaining power. But the employer cried foul, saying the union went too far, and tried to sue the union for damages in court for the loss of property caused by the strike when unused concrete hardened and became useless. The union, in response, filed a complaint at the National Labor Relations Board alleging that the employer’s lawsuit was a form of anti-union retaliation. Normally such state law damages suits are preempted by federal labor law (a doctrine known as Garmon preemption after the 1959 Supreme Court decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)), but there is a narrow exemption for situations in which the union deliberately damages employer property. The Supreme Court, overturning an appeals court ruling, found that the union’s actions in this case met the exception and the employer could proceed to sue the union in state court.

Attorney John M. Becker, who has practiced law on behalf of unions and employees at Sandulli Grace since 1996, responded to Salon’s request for comments. The article may be found here. While the Salon article contains only abbreviated comments by Attorney Becker, his complete responses to Salon’s interview questions may be found below.

Salon.com: What were your initial reactions to the Court’s findings?

Becker: I’m disappointed but not surprised. This is a conservative court that, in general, prefers the rights of employers over the rights of unions and employees, and the rights of states over the rights of the federal government, and is highly skeptical of the power of federal agencies – witness the recent EPA decision (Sackett vs. Environmental Protection Agency, No. 21-454, decided May 25, 2023). The Court in this case (at the motion to dismiss stage, when the court must defer to the allegations in the complaint) makes factual determinations about whether the strikers crossed the line from inflicting economic harm through their strike (which is the point of a strike, as Justice Jackson points out!) to taking affirmative steps to destroy employer property. This is a job for a fact-finding agency like the NLRB, not an appellate court, much less the Supreme Court of the United States. I think the decision could (as Justice Blackmun warned – see Justice Jackson’s footnote 5) tempt lower courts to delve more into the facts of these cases, instead of leaving that task to the NLRB, which Congress created to conduct investigations and provide fact-finding and legal expertise on labor issues.

On the positive side, Garmon preemption has survived. That’s a good thing. And as Justice Jackson points out, the courts that will hear this case after remand can (and should) look to the NLRB’s findings in this matter as important evidence to determine whether preemption is still necessary. This case – both in the Washington State courts and the NLRB – is far from over.

Salon.com: Break it down for a layperson. What’s happening here, and why is it important?

Becker; Although most unions in the private sector have a right to strike, which includes the right to decide when to strike, they can’t go out of their way to destroy the employer’s property. Strikes are designed to have an economic impact on the employer – if there was no potential for economic harm, then why strike? That’s the whole point: put pressure on the employer to settle the contract. So if you walk off the job at a chicken factory and the chicken goes bad, that’s permitted. But at some point, you go from letting the economic harm happen, to actively making it happen. Here, the Court said that by waiting until the trucks were all full of wet concrete and then leaving the trucks with concrete inside them (concrete that eventually hardened and became useless), the strikers crossed the line from allowing economic harm to actively causing it, which is not OK.

What’s the legal consequence of that finding? It means that the employer can sue the union in state court for damage to its property. If there was a reasonable argument that the union had NOT crossed the line, then the state damages claim would be put on hold until the NLRB (the federal labor agency) made a ruling on the legality of the strike. If the NLRB said the strike was legal, then the employer’s damages suit would be dismissed. If the NLRB said the strike was illegal, then the employer’s suit could go forward.

Why is this decision important? It’s important to employers because they can use this ruling to try to persuade state courts to find that strikes were illegal so they can sue unions for damages caused by the strikes. The Supreme Court’s decision gives lower courts a little more permission than before to dig into the facts (or alleged facts) to make findings about who did what in the strike. The threat of more state court lawsuits against unions for destruction of property might cause some unions to think twice before striking. On the other hand, the case is important to unions because they can say that the law didn’t really change that much. Garmon is still good law. The exemptions to preemption for certain narrow categories of cases already existed before this case and this case didn’t expand the list of exemptions. Unions should be concerned, however, about the way that SCOTUS is signaling a willingness to do an end run around the NLRB in confronting the facts of these cases, instead of showing proper deference to the agency charged by Congress with administering the labor laws. We’ll have to wait and see what future cases bring.

Salon.com: Many were surprised by the Court’s split, with the final verdict being an 8-1 breakdown with only Justice Jackson dissenting. Why do you think the Court sided this way?

Becker: I think the majority decision by Justice Barrett manages to decide the case on its facts without overturning any precedents and that narrow focus appealed to all but the most conservative members of the Court. I think there was a fear that the Court might take this opportunity to overturn Garmon or otherwise more significantly limit the power of the NLRB (a desire expressed in the concurring opinions), and Justice Barrett’s approach was seen as a middle road (from the union perspective, losing the battle but not the war). Justice Jackson’s dissent would give more power to the NLRB than under current law by requiring courts to find that an NLRB complaint establishes a per se rule that a state law claim “arguably” implicates federal labor law and thus requires what Justice Jackson calls a “Garmon pause” before proceeding further on a state law claim. Although I agree that the policy proposed by Justice Jackson would be better for unions than the current rule (for the reasons she expressed), I understand why Justices Sotomayor and Kagan chose to join Justice Barrett. With Justices Thomas, Alito, and Gorsuch willing to go even further in an anti-labor direction, and the impossibility of getting five votes for Justice Jackson’s position, creating a majority for Justice Barrett’s position was a sensible strategic move to avoid a worse result.

Salon.com: Did you have any reaction to Justice Jackson’s emphatic dissent? What does this say about her as a justice?

Becker: I was heartened by Justice Jackson’s dissent. She displays a true understanding of and respect for the important role of the NLRB in adjudicating labor disputes, and of the crucial role that strikes play in labor-management relations. The strike is the single most powerful tool in a union’s toolbox, and decisions that weaken that power, even a little, upset the careful balance between union and employer interests. At a time when the Republican Party (and a certain portion of the electorate) perceives unions negatively, Justice Jackson’s robust affirmation of the important role unions play in the American economy is a breath of fresh air. I wish we lived in a world where Justice Jackson could get four more votes for her position, but we don’t.

In Our Opinion..., Labor In The News

John Becker on National Labor Issues

Alan Shapiro July 7, 2023

Sandulli Grace attorney John Becker is quoted extensively in an article published June 12, 2023 in Salon, a national publication. The article focuses on labor law opinions issued by the most recent appointee to the U.S. Supreme Court, Justice Ketanji Brown Jackson.

In a recent decision in a case called Glacier Northwest v. Teamsters, the Supreme Court, by an 8-1 majority, allowed a concrete delivery company to sue the Teamsters Union for damages when its drivers went on strike. Even though the drivers had left their delivery drums rolling when they walked off the job so that the concrete would not harden, the Court allowed the lawsuit to go forward.

As the sole dissenting judge, Jackson advocated for adherence to court precedent. Historically, the National Labor Relations Board (NLRB), not the courts, has overseen issues between private sector unions and employers. While the court sided with the employer, it did not, as many had feared, completely overrule precedent. Despite losing the case, unions were a bit heartened by the narrowness of the decision.

As the sole dissenting voice, Justice Jackson wrote:

“Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA [federal labor law] even if economic injury results.”

Attorney Becker commented on Justice Jackson’s dissent:

“She displays a true understanding of and respect for the important role of the NLRB in adjudicating labor disputes,” said, John M. Becker, an attorney at Sandulli Grace, P.C., a law firm that represents unions and employees.”

Attorney Becker further commented on the importance of labor unions in our economy:

Becker glowed over Justice Jackson’s dissent: “At a time when the Republican Party (and a certain portion of the electorate) perceives unions negatively, Justice Jackson’s robust affirmation of the important role unions play in the American economy is a breath of fresh air. I wish we lived in a world where Justice Jackson could get four more votes for her position, but we don’t.”

According to the U.S. Bureau of Labor Statistics, barely 10% of the overall U.S. workforce (including private and public sector workers) is unionized. In 1983, that figure was 20%. The overall percentage of union membership is half of what it was 40 years ago. While about 33% of public sector workers are represented by unions, the figure for private sector workers is 6%.

Unionized workers in the public sector (police officers, fire fighters, teachers, etc.) need to understand that the wages and benefits they have fought for are financed not just by their pension contributions but also by taxes paid by everyone. As fewer and fewer private sector workers have the ability to negotiate for better wages and benefits, their willingness to pay for public sector benefits they don’t have can only diminish.

Workers, particularly unionized ones, need to understand the pernicious effects that the Trump appointees on the NLRB had on private sector unions and their members. The Biden administration has appointed people to that agency who are committed to enforcing its mission of protecting unions and employees. Perhaps, with people on the NLRB who are truly committed to enforcing the law, private sector unions can grow. Only when many more workers belong to unions can this country truly live up to its stated objective of equality for all.

Labor In The News, Sandulli Grace In The News

Tribute to Kenneth A. Grace, October 15, 1951 – June 2, 2022

Jennifer Smith June 8, 2022

With immeasurable sorrow we announce the passing of Kenneth Allen Grace. Ken, a born union organizer, graduated from Cornell University’s School for Industrial and Labor Relations with a BS in 1973, followed by a Master’s in Labor Studies from UMass Amherst in 1975. Post-graduation he went to work as an organizer and a business agent for AFSCME Council 93. While working, he went to New England School of Law at night, graduating magna cum laude in 1981. In 1982, Joseph Sandulli hired Ken as his associate. The two became the founding partners of Sandulli Grace, P.C. in 1985.

After very nearly 40 years of diligent and imaginative work as an advocate, tenaciously representing his Union and employee clients across the public and private sector, Ken retired in 2022. His years of service to the labor movement included 30 years of teaching union members at the Boston Labor Guild’s School of Labor-Management Relations, negotiating hundreds of collective bargaining agreements in every corner of the Commonwealth, and mediating and arbitrating countless grievances to fair resolution for his clients. In 2012, in recognition for his outstanding work in labor relations, he was awarded the Boston Labor Guild’s Union Attorney Cushing Gavin Award.

At work, when Ken was not advancing the labor movement, he was building the law firm of Sandulli Grace, brick by brick. Ken’s ideals and his devotion to his beloved wife of over 40 years, Peggy Grace (1947-2020) and their two sons, set the tempo in the firm. Our work is important, but so are our families. Our work is important, but so is the community that we are building in the office. Before workplace culture was fashionable, Ken helped us built a law firm where the wellbeing of the people doing the work, and their families, were a genuine concern.

As much as we adored Ken, somehow his clients were even more devoted to him. He took the time to understand every problem and to pick it apart to its bones. He learned everyone’s name and sought to understand everyone’s motivation, whether they were a member or a manager. At the bargaining table, he had an uncanny ability to craft a precise and compelling theory for every set of negotiations.

Ken was very concerned with the cumulative effect of stress and trauma on public safety employees, specifically his clients who worked as police officers, firefighters, and emergency medical technicians. Ken believed that access to comprehensive mental health services was crucial to preventing and treating trauma responses and mental illness in public safety workers. In 2018 Ken helped draft amendments to MGL c. 233 that guaranteed confidentiality when a police officer or firefighter talks to a peer counselor following a critical incident. These amendments became law in 2019 and he proudly hung a signed copy of the bill in his office.

Ken was generous with his time and colossal experience as an advocate, working assiduously to train and mentor the two generations of Sandulli Grace attorneys that joined the firm and matured as practitioners under his tutelage. We will never know a better advocate, partner, mentor, or friend.

The family has requested that in lieu of flowers, memorial donations are made to:

The Labor Guild
66 Brooks Drive
Braintree, MA 02184
https://laborguild.com

To read more about Ken’s life and his amazing love story with Peggy you can find his obituary here: https://www.legacy.com/us/obituaries/bostonglobe/name/kenneth-grace-obituary?id=35082830

In Our Opinion..., Labor In The News, Sandulli Grace In The News, Uncategorized

Sandulli Grace Attorney Submits Testimony on Civil Service for the Massachusetts Coalition of Police

Sandulli Grace Staff November 16, 2021

The police reform bill recently passed by the Massachusetts Legislature (known as the Massachusetts Peace Officer Standards and Training or “POST” law) established a number of committees to study various aspects of policing in the Commonwealth. The job of one of those committees is to study the current civil service system and determine whether any changes need to be made, or whether the entire system should be eliminated. Sandulli Grace attorney John M. Becker recently submitted written testimony to the civil service committee on behalf of the Massachusetts Coalition of Police, a statewide law enforcement union that is one of Sandulli Grace’s clients. The testimony is reproduced below:

Mr. Chairman/Madame Chairwoman, members of the Committee:

My name is John Becker. I am an attorney with the law firm of Sandulli Grace, P.C. I am writing on behalf of our client, the Massachusetts Coalition of Police, a labor organization that represents over 4,500 police officers and other law enforcement professionals in more than 175 cities and towns in Massachusetts.

I am here today to testify in favor of retaining the civil service system for public safety employees in Massachusetts. There are significant benefits to keeping civil service, as I will explain, and eliminating the system is likely to have significant negative consequences, not the least of which is that dismantling the system and distributing these powers and duties to 351 separate municipalities would be contrary to the objectives of the POST legislation to create consistent statewide standards for police.

Right now, civil service operates in 170 Massachusetts municipalities, including every city in the Commonwealth and a significant number of towns. The state human resources division (HRD), through its civil service unit, regulates hiring and promotional procedures, compiles and administers tests, and compiles and manages eligibility lists from those tests. When a municipality seeks to appoint or promote a public safety officer, civil service ensures that the legal standards are adhered to. HRD also provides an appeal process for applicants who have concerns regarding bypasses, scoring, and training and experience credits. In addition, the Civil Service Commission provides review of suspensions, terminations, and demotions of civil service employees. Upon the appeal of an employee, the Commission reviews such decisions to ensure there was just cause for the action.

Eliminating the civil service system will have significant negative consequences for employees, municipalities, and the Commonwealth as a whole. The purpose of the civil service system is to ensure that appointments and promotions are based solely on merit. The Commonwealth has developed standardized tests for physical fitness, as well as standardized written examinations testing the applicant’s knowledge and skills. The rules for appointment and promotion ensure that employers must rely primarily on objective criteria – test results, training and experience, and other relevant factors – to make their decisions. The system significantly reduces or eliminates the use of political considerations, personal preferences, favoritism, and other irrelevant criteria for hiring and promotional decisions. Returning control of the system to the municipalities will only increase the opportunities for local officials to use these non-objective criteria in the decision-making process.

Maybe even more importantly, the elimination of the statewide standards provided by civil service is inconsistent with the purposes of the recently-passed POST legislation. The idea behind POST is to develop stringent and consistent statewide standards for police. Right now, civil service provides a single, statewide set of standards and rules for hiring and promotion of public safety employees. But dismantling civil service and giving total power for hiring and promotion to the municipalities will potentially create 351 separate sets of rules and standards for hiring and promotion. Instead of furthering the objectives of the POST law, eliminating civil service and dispersing these duties to individual municipalities will do just the opposite, by reducing consistency and creating a patchwork quilt of different standards across the Commonwealth.

This is not to say that municipalities do not have any say in hiring and promotion. Under civil service law, municipalities have the ability to choose from among the top scorers according to a formula known as “2N + 1” and may bypass the top scorer with any reasonable justification. Municipalities can also work with civil service to develop locality-specific testing, or adopt innovative hiring processes such as assessment centers (at the municipality’s cost) to supplement the tests administered by the state. HRD’s rules also allow municipalities to specifically seek local residents, people who speak a certain foreign language, or, if there is a showing of prior discrimination, they can ask for a list of women or minority candidates in order to increase diversity. Furthermore, towns already have the ability to remove themselves from civil service entirely through the political process, and quite a few have taken that step. If municipalities have concerns about specific aspects of the state hiring and promotional rules, they should ask the Legislature to make targeted changes instead of getting rid of the whole system and throwing out the baby with the bathwater.

The ability to appeal disciplinary action to the Civil Service Commission is also a benefit to employees and municipalities. The Civil Service Commission provides a low-cost way for individuals to obtain due process – in a setting removed from local politics – and determine whether there was just cause for suspensions, discharges and demotions. The Commission upholds the discipline in the vast majority of cases. Although many police unions and municipalities also have just cause provisions in their collective bargaining agreements (CBAs), which are resolved through neutral third-party arbitration, some CBAs lack such just cause provisions and so civil service appeals are the only way to obtain review of discipline. Furthermore, because the Union controls the ability to go to arbitration, some individuals may prefer to go to civil service, where they have full control of the process. Even where arbitration is available, civil service provides a lower-cost alternative that both municipalities and unions may sometimes find useful.

In conclusion:

Police officers should be evaluated based on their merit alone. The existence of the civil service system reassures the public that officers have their jobs for no reason other than their qualifications. Police officers can concentrate on doing their jobs, without worrying about being beholden to any particular political force in the community.

The civil service system also provides a consistent statewide standard for hiring and promotion of police and other public safety employees. Fragmenting the system into a hodgepodge of municipal hiring and promotional policies will cause duplication of costs, increased potential for inconsistency, not to mention the potential for political considerations to enter into the process, and moreover, is exactly contrary to the purpose and objectives of the POST legislation.

For these reasons, I urge the Committee to retain the civil service system in Massachusetts.

In Our Opinion...

Vaccine Mandates Are Coming: What Can Be Done?

Alan Shapiro August 23, 2021

With today’s Federal Drug Administration approval of the Pfizer-BioNTech vaccine for those 16 years of age and older, and with approval of the Moderna vaccine expected soon, we can anticipate a wave of employers imposing vaccine mandates on their employees. For those who are already vaccinated, it’s not an issue. But for those who are not, their jobs could be threatened. If you are in a union, what can your union do about it?

From the early indications, neither the courts nor federal or state agencies are going to protect employees from vaccine mandates. The case law goes back to 1905, when the U.S. Supreme Court upheld a Massachusetts law that mandated that all adults over 21 be vaccinated against smallpox and made it a crime to refuse to comply. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld a decision of our SJC that said that mandating vaccination did not violate either the U.S. or our state constitution.

In the only constitutional challenge to COVID vaccination requirements to reach the U.S. Supreme Court, a group of students sued Indiana University, which is requiring all students to be vaccinated against COVID unless they have medical or religious exemptions. On August 2, 2021, the 7th Circuit (federal circuit courts are the next level below the U.S. Supreme Court) refused to give the students an injunction against the vaccination requirement, relying on Jacobson. Klaassen v. Trustees of Indiana University. On August 12, Supreme Court Justice Barrett denied the students’ request for an injunction. As a Supreme Court blog put it:

Barrett, who is responsible for emergency appeals from Indiana, denied the students’ request without comment, without seeking a response from the state, and without referring the request to the full court for a vote – suggesting that she and the other justices did not regard it as a particularly close case.

The most recent guidance of the EEOC (the federal agency that enforces workplace discrimination laws) said that

Federal EEO [Equal Employment Opportunity] laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. the only required exceptions to mandatory vaccination policies are for medical and religious reasons.

Our state anti-discrimination agency, MCAD, has not issued a separate guidance, but they generally follow the EEOC in these types of cases.

While these decisions apply generally to the legality of mandating vaccinations, it’s different in a unionized workplace. Generally, decisions like mandating vaccination, and their impacts, are considered to be mandatory subjects of bargaining. That means that the Employer must negotiate with the Union over the implementation and effects of these policies before they are implemented. But having the legal authority to demand bargaining and to engage in bargaining does not necessarily mean that unions will be able to stop employers from implementing vaccine mandates. Employers will likely claim the urgency of these negotiations in an attempt to foreclose unions from dragging them out. There is case law in some jurisdictions supporting this position. If impasse is reached in the negotiations, generally, labor laws allow employers to implement their last best proposal.

In short, current law provides non-union employees little protection against vaccine mandates. For those in unions, there is at least the opportunity to engage your employer in negotiations before a mandate can be implemented. Of course, each situation in a unionized workplace is different, depending on the laws in your jurisdiction and the content of your collective bargaining agreement.

Note: Please recognize that the opinions in this blog entry are based on my best assessment of current legal precedents. These precedents can change, so it is important to keep current. This blog is not a substitute for guidance from your union or legal counsel to address your particular situation.

In Our Opinion..., Unfair Labor Practices

Is Your Employer Calculating Your Overtime Rate Correctly?

John Becker March 18, 2021

Federal law requires all employers to pay overtime rates for certain hours worked, but many employers calculate the overtime rate incorrectly. To find out if you may be owed money, read on.

A federal law known as the Fair Labor Standards Act (FLSA) requires nearly every employee (except police officers and firefighters – more on that later) to receive overtime pay for hours worked after 40 in a week. Courts in many states (including Massachusetts) interpret the FLSA to require overtime pay to calculated by dividing total pay (excluding overtime premiums) by total hours worked to get what is called the regular rate, and then multiplying that rate by 1.5.

In the case of police and firefighters, a similar formula applies, but the drafters of the FLSA created an exception to the general rule of overtime after 40 hours in a week. The difference is that employers of police and firefighters can receive a partial overtime exemption under Section 7(k) of the FLSA. That partial exemption requires the employer to choose a pay period of between 7 and 28 days. For each pay period, the FLSA provides a maximum number of hours, after which overtime is owed. For example, police are owed overtime pay after 43 hours worked in a 7-day pay period, or after 171 hours in a 28-day pay period. Firefighters are eligible for overtime after 53 hours in a 7-day pay period, or after 212 hours in a 28-day pay period.

How do you determine the overtime rate? Contrary to what many assume, the FLSA overtime rate is not necessarily created by multiplying your hourly rate by 1.5. The FLSA requires employers to include all compensation in a figure called the “regular rate.” This rate is not necessarily the same as your hourly rate, and, unlike your hourly rate, it may change from week to week (or pay period to pay period, if you are a police officer or firefighter). The regular rate is calculated by dividing total compensation by total hours worked. In Massachusetts and most other New England states, total compensation has at least three elements: (1) regular pay; (2) overtime pay (minus the overtime premium); and (3) stipends, differentials, incentives and other extra pay. It is the third element that many employers neglect to include when calculating the regular rate. All of the following must be included in total compensation: (a) longevity pay; (b) educational incentive pay; (c) stipends for special positions or assignments; (d) shift differentials; (e) pay for certification or other qualifications; (f) hazardous duty pay; (g) sick leave or vacation leave buybacks; (h) retroactive pay; (i) stand-by or on-call pay; and (j) payments received for opting out of employer health insurance. This list is not exhaustive; other payments may be eligible. Here are several items that are not included in total compensation: (a) overtime premium pay (but straight time for overtime hours worked is included); (b) holiday premium pay; (3) clothing and cleaning allowances; (4) reimbursement for meals, mileage and other expenses.

Sometimes employers pay certain kinds of extra pay in lump sums. In such cases, the FLSA requires the employer to divide up the lump sum by the number of weeks (or pay periods, for police and fire) and use that number to add to the total compensation equation. (Note: The employer isn’t required to actually pay the stipends weekly, but it must use the amount that would be paid IF it were paid weekly in calculating the overtime rate.)

Once you have the total compensation, you need to figure out total hours worked. This should be a fairly simple process, but there are some wrinkles. First, in Massachusetts and other states in the federal First Circuit, you need to include both regular time and overtime hours. Second, the FLSA counts only hours actually worked. A day off (for vacation, sick leave, personal leave, holiday, compensatory time) is not hours actually worked. If, as in many police contracts, the employees receive payments equal to a minimum number of hours for certain assignments (such as a four-hour minimum for court), but the employee worked less than the minimum number of hours, the FLSA only counts the actual hours worked. Employers are responsible for keeping track of how many hours employees actually work, even in situations where these minimums apply.

Once we have total compensation and hours worked, we can calculate the regular rate by dividing total compensation by hours worked. You then multiply the regular rate by 1.5 to get your FLSA overtime rate. This is what employees should be paid for every hour over 40 in the week. (Or in the case of police and fire, for every hour over the maximum allowable hours in the pay period.) Please note that because the regular rate is dependent on both the amount you earned and the amount you worked during that specific period, it is likely to change from week to week (or period to period). If your employer is using the same regular rate for every FLSA calculation, they are probably doing it wrong.

Why do I use the phrase “FLSA overtime”? Isn’t all overtime just overtime? Not necessarily. Employees covered by union-negotiated collective bargaining agreements (and some personnel policies) may get overtime for hours worked that wouldn’t qualify as overtime under the FLSA. For example, a CBA may provide that any work outside the employee’s regular schedule is overtime. Here’s an example: an employee is scheduled to work 9 am -5 pm, Monday through Friday. On Monday, she works a double shift (9 a.m. to 1 a.m.) but she takes Friday off. She has worked 40 hours that week and is entitled to no overtime under the FLSA. But under her union contract, she receives eight hours of overtime for the second shift on Monday. The FLSA does not apply to this overtime and so the employer does not have to pay the FLSA overtime rate for that non-FLSA overtime.

Let’s take the case of a police officer whose employer has adopted a 28-day pay period, which doesn’t require FLSA overtime pay until the officer has worked 171 hours in the period. Let’s say the officer is regularly scheduled to work 160 hours in that 28-day period, and takes no time off. The next 11 hours the officer works are non-FLSA overtime and may be paid at the non-FLSA overtime rate. But once the officer works the 172nd hour, the FLSA overtime rate kicks in.

There are many more complications, exceptions and twists to the FLSA that go beyond the scope of this article. If you take away only one thing from this post, it should be this: check to make sure your employer is including all the necessary elements of your pay in your FLSA overtime rate. If they aren’t you may have a legal claim for damages. You may want to contact an attorney with expertise in FLSA law to find out if you are owed money.

Sandulli Grace In The News, Uncategorized

Tribute to Joseph G. Sandulli, November 17, 1944 to March 10, 2021

Sandulli Grace Staff March 15, 2021

It is with great sadness that we announce the passing of our colleague, mentor and friend, Joseph G. Sandulli. Joe passed away on March 10, 2021, with his family around him, after a characteristically courageous battle with cancer.

Joe graduated from the University of Pennsylvania Law School in 1969 and became an attorney in 1970. On April 1, 1977, Joe founded what would become Sandulli Grace, P.C., by opening his own law practice on Mt. Vernon Street in Boston.

His solo practice grew into Boston’s premier union-side public sector labor law firm.

He was at the vanguard in forming what has since grown to be the largest law enforcement union in Massachusetts and New England. Organized in 1979 with just five local police departments in the Worcester area, the Massachusetts Coalition of Police (“MASS C.O.P.”) represents over 4,400 members in over 173 cities and towns in Massachusetts. Sandulli Grace has grown with MassCOP, and MassCOP became part of Joe’s family. Together, MassCOP and Sandulli Grace have established an over 40-year tradition of providing the highest quality of service to Massachusetts law enforcement officers.

Joe’s contribution to union-side labor law is legendary. Joe was the editor of the “Judicial Guide to Labor and Employment Law.” He served the Massachusetts bar as a Co-Chair of the Boston Bar Labor & Employment Law Section. He was the first lawyer in our firm to receive the Labor Guild’s Cushing-Gavin Award for Union Attorneys, which the Guild presented to him in 2008.

Joe negotiated excellent contracts, and advocated ferociously in all legal fora for our union clients, including countless locals of the Massachusetts Coalition of Police, the Boston Police Patrolmen’s Association, the Massachusetts Teachers Association, and many independent police, firefighter, EMT/paramedic and civilian unions.

Joe was brilliant and fearless. He once conducted an interest arbitration late into the night for the BPPA, prompting an anonymous source to write on our firm’s bathroom wall, “Joe Sandulli is Awesome.” That he was.

Joe believed strongly in educating the firm’s clients. He fostered a tradition of education, which has culminated in our firm’s regular education seminars for our clients, particularly the Massachusetts Coalition of Police, who share his vision of union empowerment through education. When Joe retired in 2015, we asked him what kind of retirement party he wanted. He immediately said he wanted it to be an education seminar. We invited some colleagues to speak on a panel with him about a pending U.S. Supreme Court Case called Friedrichs v. California Teachers Association, which became the precursor to Janus v. ASFCME, the decision that ended agency service fee for public employees. You have not discussed Supreme Court law until you have done it while sharing cocktails with Joe Sandulli.

Joe was a loving family man, and he integrated his family into the fabric of our firm. He was unfailingly respectful to all members of this firm, from the most senior to the most junior, always paying attention to our opinions. Joe seemed to know everything, but his curiosity never failed and he never stopped learning. Joe was creative, interesting, fun and kind. He kept us on high alert with his spontaneity and quirky sense of humor. The only thing one could ever predict about Joe was his excellence as a lawyer.

Joe continually stunned us with his physical vitality, defying the aging process to play competitive soccer and ride his horse daily, well into the last year of his life. We thought that nothing could stop him, but unfortunately cancer did. Our hearts are broken by his loss, but his values are embedded in Sandulli Grace and will live on in the law firm he built. We love you, Joe.

Please share your memories of Joe below.

Collective Bargaining, In Our Opinion...

Police Unions And The Current Climate

Alan Shapiro January 8, 2021

On December 22, the New York Times published an article entitled, “How Cities Lost Control of Police Discipline.” To someone reading the story without an understanding of labor relations and the arbitration process, the message was clear: the ability of police unions to access labor arbitrators allows brutal police officers to remain on the streets. The article, either intentionally, or, more likely, due to preconceived notions, creates a false picture of how labor arbitration works under police contracts.

The article quotes, albeit briefly, union labor attorney Will Aitchison. Aitchison not only practices law, but he also publishes excellent articles, runs seminars, and puts out a monthly podcast – all covering public safety labor law. For those who do not subscribe, I heartily recommend his web site, through which you can access the excellent materials he produces. A number of my colleagues at Sandulli Grace have presented at his seminars.

But, back to Aitchison and the Times article. In his most recent podcast, Atty. Aitchison explains the real story behind his interviews with the reporters who wrote this story. He spent hours with them, trying to explain, from the perspective of a union lawyer with decades of experience representing police unions, that arbitration is hardly the panacea for unions as it is portrayed. He explains in the beginning of this podcast that he told them, yes, unions win about half of the police arbitration cases; just as unions win about half of the firefighter, teacher, or sanitation worker arbitrations. But what that statistic ignores is the 95% of discipline cases that never get to arbitration, either because they are settled or because the union agrees with management that the assessed punishment was fair and with “just cause,” the contractual standard for most discipline arbitration cases. Yet, much to his frustration, this fundament point he conveyed to the reporters never made it into the story. Even a follow up letter to the editor has yet to see publication.

I, too, have been representing unions, many of them police, but also teachers, firefighters, security guards, and many others, for over 35 years. In general, there’s nothing magical about police contracts. They differ little, in their essentials, from other public sector union contracts. They all require employers to have “just cause” to suspend, demote, or discharge employees. If the union believes the punishment imposed lacks that just cause, they have a right to present their case to a neutral labor arbitrator. These arbitrators are mutually selected by the employer and the union. They are neutral people, usually lawyers, with expertise in interpreting labor contracts. After hearing both sides, they decide whether management fulfilled its responsibility to show that it had the requisite just cause to take away someone’s job. The process is the same whether the employee is a teacher, a firefighter, or a police officer. As Aitchison explains, the vast majority of the discipline of police officers never gets to an arbitrator: it is either resolved through the grievance process or the union does not contest that the “punishment fits the crime.”

The Times article, along with virtually all of the ones I’ve seen on this topic, is based on a fundamentally flawed assumption: police management is always right, or at least trying to “do the right thing.” This is a fallacy. There are good police administrators who really do try to manage their workforce fairly, but there are many who are motivated by various biases. These include political favoritism, racial and gender bias, and a general view separating employees into “good guys” and “bad guys.” The misdeeds of the “good guys” are overlooked, while those of the “bad guys” are punished. This is why we have arbitration: to bring an outside, neutral force to act as a check on management. This works the same way for police unions as it is does for all unions.

As labor attorneys and others in this field know, without a union contract, a worker has few rights. They can be fired for any reason except an illegal one, such as for their race, age, sex, or some other category given legal protection. But these laws only protect a very small number of cases. Unions exist not just to fight for higher wages and benefits, but also to fight for contracts that give members at least some modicum of job security. As central to religion as is the concept of loving one’s “neighbor as thyself” so in union contracts is the paramount principle that just cause protects employees from unjustified loss of their job. But, as if often said, never let the truth get in the way of a good story.

In Our Opinion..., Labor In The News

Families First Coronavirus Response Act: A Brief Explanation

Alan Shapiro April 29, 2020

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.