Vaccine Mandates Are Coming: What Can Be Done?

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.

Is Your Employer Calculating Your Overtime Rate Correctly?

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.

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

Police Unions And The Current Climate

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.

Families First Coronavirus Response Act: A Brief Explanation

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.

FEDERAL COURT DISMISSES LAWSUIT AGAINST BROOKLINE FIREFIGHTERS’ UNION

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

Sandulli Grace, P.C. and the Massachusetts Coalition of Police Present the next 2019 Training on December 4, 2019

Sandulli Grace, P.C. and the Massachusetts Coalition of Police are proud to announce our third 2019 police union training. Sandulli Grace and MassCOP believe in empowering MassCOP’s local unions through education, to create a stronger, safer environment for members. Our 2019 training sessions will give you tools to enforce your rights and improve your members’ working conditions.

Basics Trainings

In the past two years, MassCOP and Sandulli Grace have presented multiple “basics” trainings to our police unions. We believe there is a continued need for these trainings, as unions continue to elect new leaders, and new legal challenges present themselves every day. Topics include:

  • Grievance Processing
  • Discipline
  • Bargaining
  • Stress in the Workplace

Whether you are newly elected, or a seasoned union leader looking for ideas on how to make your job easier and more effective, these basics trainings can give you helpful information about issues that local unions face every day.

Bring Your Contract!

We intend this training to be interactive and practical, so we ask each person to please bring a copy of your collective bargaining agreement so that we can discuss real situations. PARTICIPATION IS NOT NECESSARY, BUT IT ADDS TO EVERYONE’S EXPERIENCE! WE STRONGLY ENCOURAGE IT! We will help you interpret your contract’s provisions on grievance processing and appealing discipline, and we will discuss what proposals you might want to make in your next round of bargaining.

How to Register

Our next 2019 training will be held on Wednesday, December 4, 2019 from 10:00 a.m. – 2:00 p.m. at the American Legion Hall, 199 Federal Furnace Rd, Plymouth, MA 02360. Please see the attached flyer. The cost is $55 per person. Payment can be by check mailed to Gia Capozzi at Sandulli Grace, P.C., 44 School Street, Suite 1100, Boston, MA 02018, or by credit card at this link:
https://www.eventbrite.com/e/basics-training-2019-tickets-74856835811.

We welcome your feedback regarding the location and content of these training sessions. Please do not hesitate to contact us with questions or suggestions at gcapozzi@sandulligrace.com.

Download the event flyer

Sandulli Grace, P.C. and the Massachusetts Coalition of Police Present the next 2019 Training

Sandulli Grace, P.C. and the Massachusetts Coalition of Police are proud to announce our third 2019 police union training. Sandulli Grace and MassCOP believe in empowering MassCOP’s local unions through education, to create a stronger, safer environment for members. Our 2019 training sessions will give you tools to enforce your rights and improve your members’ working conditions.

Basics Trainings

In the past two years, MassCOP and Sandulli Grace have presented multiple “basics” trainings to our police unions. We believe there is a continued need for these trainings, as unions continue to elect new leaders, and new legal challenges present themselves every day. Topics include:

  • Grievance Processing
  • Discipline
  • Bargaining
  • Stress in the Workplace

Whether you are newly elected, or a seasoned union leader looking for ideas on how to make your job easier and more effective, these basics trainings can give you helpful information about issues that local unions face every day.

Bring Your Contract!

We intend this training to be interactive and practical, so we ask each person to please bring a copy of your collective bargaining agreement so that we can discuss real situations. PARTICIPATION IS NOT NECESSARY, BUT IT ADDS TO EVERYONE’S EXPERIENCE! WE STRONGLY ENCOURAGE IT! We will help you interpret your contract’s provisions on grievance processing and appealing discipline, and we will discuss what proposals you might want to make in your next round of bargaining.

How to Register

Our next 2019 training will be held on Wednesday, December 4, 2019 from 10:00 a.m. – 2:00 p.m. at the American Legion Hall, 199 Federal Furnace Rd, Plymouth, MA 02360. Please see the attached flyer. The cost is $55 per person. Payment can be by check mailed to Gia Capozzi at Sandulli Grace, P.C., 44 School Street, Suite 1100, Boston, MA 02018, or by credit card at this link:
https://www.eventbrite.com/e/basics-training-2019-tickets-74856835811.

We welcome your feedback regarding the location and content of these training sessions. Please do not hesitate to contact us with questions or suggestions at gcapozzi@sandulligrace.com.

Download the event flyer

Civil Service Commission Upholds Termination Of African American Boston Firefighter For Social Media Posts But Also Orders Investigation Into Boston Fire Department

In Rowe v. Boston Fire Department (D1-18-074), issued on August 29, 2019, the Civil Service Commission upheld the discharge of Boston Firefighter Octavius Rowe for the content of his social media posts and podcasts. The Commission’s summary of its decision states:

Firefighter Rowe maintained a presence on social media and participated in various podcasts inwhich he regularly identified himself as a Boston firefighter. As part of those same public forums, he repeatedly spoke, wrote and/or posted bigoted comments that violate the norms of decency and various rules and regulations of the Boston Fire Department, including conduct unbecoming a firefighter, justifying his termination. Firefighter Rowe’s public posts and statements included: referring to the long-time head of the Boston Urban League as a “shoe-shine Negro”; referring to the then-Boston Police Superintendent (now Commissioner) as a “feckless, jolly black face”; a statement that black men should not share their “genetic material” with a “filthy, filthy white woman” and that “laying with white women is like spitting in your mother’s womb”; a post listing the date, time and location (including the name of the school and a map) where Firefighter Rowe objects to young boys and girls holding hands with members of the same sex; multiple references to gay men as “homophiles”; a reference to so-called “homophiles” seeking to “normalize homophilia particularly among children in order to GAIN and EASE sexual access to them”; references to lesbians as “lez-beasts”; a reply to a person online stating: “You’re QUEER. You’re not significant enough for me to troll”; another online reply stating: “Why haven’t any homophiles been killed by Police?”; a picture of Firefighter Rowe, with a clenched fist, wearing a t-shirt with a stick figure with Pan-African colors kicking in the groin a stick figure with LGBTQ colors; a reference to the head of the Boston Chapter of Black Lives Matter, a Boston resident, as a person with: “Homophile/Trans/Femm Interests”; a reference to Black Lives Matter as “HOMOPHILES LIVES MATTER”; a reference to the leaders of Black Lives Matter as “slowwitted, uniformed agents of sexuality confusion/cooning” who “cannot have access to our children.”; a reference to a black entertainer as a “COM-PLETE bitch”; and a reference to “SmallHats (So-called Jews)”.

As if upholding of the termination were not controversial enough, the Commission went on to take the extraordinary step of initiating its own inquiry into how the Boston Fire Department (BFD) handled the investigation of a white firefighter accused of using “the n-word in a social media posting that has come to the Commission’s attention in the course of the present appeal.”

Firefighter Rowe mounted three challenges to his termination: (1) no nexus between his conduct and his job; (2) First Amendment protected speech; and (3) disparate treatment1 . The Commision analyzed the First Amendment defense under federal precedents adopted by Mass. courts. The decision rejected the nexus argument because firefighters enter the homes of people, some of whom belong to races/genders/sexual identities Rowe disparaged in his postings. It analyzed the First Amendment argument under traditional caselaw and ultimately agreed with BFD that “there is no basis for concluding that Firefighter’s Rowe’s interest in free speech outweighed BFD’s interest in providing efficient and effective public safety services.”

The disparate treatment contention – that white firefighters’ repugnant social media posts were treated more leniently than Rowe’s – caused the Commission more difficulty. One white firefighter who “posted vile comments regarding Rachel Maddow and Senator Elizabeth Warren” had been forced to resign. Another was also forced to resign, rather than contest his termination, whose “hateful, bigoted postings” included one stating “I Never Ever Trust a Dirty Fucking Muslim.” As part of Rowe’s defense at his hearing, he produced evidence that another white firefighter had also made racist social media posts but had only received a warning from BFD. The Commission rejected the disparate treatment argument, concluding that, regardless of how others may have been treated, Rowe’s conduct was so unacceptable that termination was warranted.

Normally, that would be the end of the case, but the Commission then took the extraordinary step of conducting its own inquiry:

to ascertain what further action should be recommended by the Commission or taken by the BFD to further investigate the allegation that a BFD firefighter has allegedly used the n-word in a social media posting that has come to the Commission’s attention in the course of the present appeal.

As authority for this highly unusual investigation, the Commission’s relied on Section 72 of Chapter 31 (the civil service statute), which states:

The commission or administrator [HRD], upon the request of an appointing authority, shall inquire into the efficiency and conduct of any employee in a civil service position who was appointed by such appointing authority. The commission or the administrator may also conduct such an inquiry at any time without such request by an appointing authority. After conducting an inquiry pursuant to this paragraph, the commission or administrator may recommend to the appointing authority that such employee be removed or may make other appropriate recommendations.” (emphasis added by Commission)

The Commission then ordered BFD within 30 days “to file a written response to this inquiry which should include recommended steps for conducting a further investigation of the above-referenced allegation.”

The lesson from all of this, besides a basic suggestion that employees refrain from categorically criticizing or disparaging any group of people, is to simply stay off of all forms of social media. As this blog has pointed out several times, most recently earlier this month, employees have little to gain and a lot to lose through participation in social media.

1 Disparate treatment occurs when one employee or group of employees is treated differently from another employee or group of employees for the same or similar conduct.

Social Media Will Ruin Your Whole Life, Again

More than four years ago, my colleague Jennifer Smith wrote a blog entry entitled “Social Media Will Ruin Your Whole Life.” The blog detailed how one corporate executive lost her job over one “stupid tweet.” Atty. Smith’s advice to police officers, teachers, and firefighters was “delete your social media accounts now, if you haven’t already.” That advice is even more critical today.

A group called “The Plain View Project” has compiled a database of “public Facebook posts and comments made by current and former police officers” from eight cities around the country. An article disseminated today by LRIS (Labor Relations Information System) explains that, in June, 72 Philadelphia police officers were placed on administrative leave after the department began investigating allegations of racist and offensive Facebook posts by these officers. Since then, 13 of those officers have been notified that the department intends to terminate them; 7 of those 13 have just resigned. Four other officers were suspended for 30 days, three face no discipline, and the remaining face disciplinary action ranging between reprimand and five-day suspension.

Whether you like groups like Plain View Project prying into your Facebook posts or not, it is a reality that these groups exist. In addition, any FB post you’ve ever made is potentially something that could be used to make you look bad by jealous colleagues, spiteful relatives, or anybody else who has an ax to grind with you. The same must be said about all social media, including, but not limited to, Facebook, Twitter, Snapchat, Instagram, Tumblr, Pinterest, Imgur, Yelp, and the many others I’ve never heard of.

As a public employee, and particularly one who daily deals directly with the public, you are called upon to evenhandedly and judiciously ply your trade. Whether intended or not, any action you take which in any way calls into question your evenhandedness can potentially get you into trouble.

And, you may ask, what about my First Amendment rights? In 1892, Supreme Court Justice Oliver Wendell Holmes tersely articulated a police officer’s First Amendment rights: he “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” While there certainly are lines that can be drawn to distinguish public employees’ protected from unprotected speech, do you really want to be a constitutional test case? Are you sufficiently knowledgeable about the intricacies of free speech rights of public employees to be sure that what you post on social media can’t get you in trouble? I would strongly suggest that rather than play Russian Roulette with your career, you stay off social media. Whatever you might gain from participating in social media is dwarfed by what you might lose.