Most employees, public and private, are entitled to overtime compensation under the Federal Labor Standards Act (FLSA) for every hour actually worked beyond 40 hours in a seven-day period. As another needless reminder of the second-class status of police officers and firefighters, Congress permits public safety employers to pay less overtime so long as the employer adopts a “partial overtime exemption,” under the FLSA (commonly known as a “§207(k)” work period,” in reference to the relevant section of the Act). Where a public safety employer lawfully adopts a §207(k) work period, police officers may not be entitled to FLSA overtime unless they work 171 actually hours in a 28-day work period, while firefighters may not receive FLSA overtime until they actually work 212 hours within that same period. Considering that paid leave time (sick, vacation, etc) does not count toward the 171 or 212 hours, public safety officers are functionally denied the benefits of the FLSA through this exemption.

As a credit to the strength of union solidarity and collective action, most labor contracts provide overtime compensation in more circumstances than the minimum required by the FLSA. However, the FLSA overtime rate, when applicable, frequently is more generous than labor contract rates, because the FLSA rate must include many differentials, stipends, etc. That’s why the issue of whether an employer properly adopted a §207(k) work period is the most critical piece of FLSA litigation involving police and firefighters. Sandulli Grace, P.C. (on behalf of its client the Boston Police Patrolmen’s Association, Inc.) won a landmark decision , when the Labor Relations Commission (now the Commonwealth Employment Relations Board), ruled that the voluntary adoption of a partial overtime exemption under §207(k) is a mandatory subject of bargaining and cannot be unilaterally implemented by the employer. The City of Boston has appealed this decision, and it is now pending before the Supreme Judicial court.

In O’Brien v. Town of Agawam (on which Sandulli Grace, PC, while not directly involved. consulted on the briefs), the U.S. Circuit of Court of Appeals ruled that the §207 work period does not apply in the case of a 4-and-2 schedule, absent an affirmative adoption of this partial overtime exemption by the employer. In O’Hara v. Menino, Sandulli Grace leveraged the O’Brien decision to impose damages against the City of Boston, based upon a 40-hour work period. In neither case did the employer purport to affirmatively adopt a valid §207(k) work period.

We now are seeing cases litigating whether and when an employer lawfully adopted the partial overtime exemption. In Calvao v. Framingham, (July 3, 2008) , a class action involving Framingham police officers, the Federal Trial Court in Massachusetts affirmed that a §207(k) exemption applies only if the employer adopts an applicable work period (or there exists a regular, recurring work period consistent with §207(k), AND it takes affirmative steps to implement this period). In Calvao, the Court ruled that a Town Administrator’s memo adopting a period sent to the Police and Fire Chiefs and Town Counsel was sufficient to adopt a period, even though the former Town Counsel and Administrator had no memory of the memo and the work period was inconsistent with the terms of the collective bargaining agreement and Town Bylaws. Finally, the Court suggests that an employer adequately implements a §207(k) work period, simply by distributing the memorandum periodically and filing it in relevant places, even if the employer apparently never actually complied with the memo or applied a §207(k) work period.

The Calvao decision was issued by a federal trial judge and may be appealed to the U.S. First Circuit Court of Appeals. It also is possible for another federal trial judge in Massachusetts to adopt a different interpretation of the law on the same issue. (Massachusetts federal trial judges have issued differing interpretations of FLSA before).

At first glance, the Supreme Judicial Court’s decision in Sheriff of Suffolk County v. Jail Officers and Employees (http://socialaw.org/slip.htm?cid=18288&sid=120, decided June 23, 2008), which upholds an arbitrator’s reinstatement of a public employee, is unremarkable. Unfortunately, the Court’s reasoning and commentary in the case signal a shift in the law away from unions and the finality of the arbitration process.

As discussed in an earlier blog entry , the SJC granted further review of an Appeals Court decision upholding an arbitrator’s award. The case involved a county jail guard who allegedly witnessed the beating of an inmate and was not fully forthcoming about the incident. After the sheriff fired the guard, his union filed a grievance and an arbitrator reduced the discipline to a six-month suspension. The sheriff appealed and lost at the Superior Court and Appeals Court levels.

The SJC upheld the award too, but only because it could not determine from the arbitrator’s award whether the arbitrator had found the officer had lied. Because the arbitrator had died, there was no way to remand for further findings. But the Court went out of its way to comment that, if the arbitrator had found that the guard had lied, then the reinstatement would have violated public policy. According to the decision, which was written by SJC newcomer Justice Margot Botsford:

In a situation where a jail officer actually witnesses fellow officers assault an individual who is held in the sheriff’s custody, and then lies about this fact and files false reports that memorialize the falsity, we have little doubt that established public policy would condemn such conduct and would require the discharge of such an officer.

Sheriff of Suffolk County, at page 3.

The SJC’s decision raises several serious concerns. First, there is no basis in the law for the Court to order a remand on the basis that the findings of fact are “ambiguous” or “not sufficiently clear.” Modification and correction of awards are allowed only under certain circumstances, such as when an award “is so indefinite or incomplete that it cannot be performed,” G.L. c. 150C, § 8, or there is “an evidence mistake in the description of any person, thing or property referred to”, or the award is “imperfect in a matter of form.” G.L. c. 150C, § 12(a). The Court may only order a rehearing under narrow circumstances, including a finding that the arbitrator has exceeded his authority. So, even if the arbitrator were still alive, a remand would have been improper.

Second, and more importantly, the Court’s casual statement of the consequences if the officer had been found to lie, if adopted as law, would expand the public policy exception dramatically. The controlling case is City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), in which an arbitrator concluded that a discharged Boston Police officer lied about being assaulted by two citizens, brought false charges against the citizens and testified consistently (and untruthfully) that he had been assaulted. The arbitrator nonetheless reinstated the officer with a one-year suspension, based upon several factors, including the City’s treatment of officers committing similar or worse misdeeds. The SJC vacated the arbitration award on the grounds that it violated public policy. The SJC articulated the three-part test for the public policy exception: (1) the award violates a public policy that is defined by laws, regulations or statutes, not general ideas about right and wrong; (2) the employee’s conduct goes to the very heart of his employment duties; and (3) the public policy requires termination – no other discipline is sufficient. The Court in the City of Boston case held that the officer engaged in on-duty misconduct that involved multiple lies, perjuries and false reports, and that these actions amounted to several felonies under state law (even though the officer was never even charged with a crime). Because state law prohibits felons from serving as police officers, the Court determined that the public policies embodied in those statutes required termination of the officer.

In the Sheriff of Suffolk County case, the Court ignores key aspects of the test for finding a public policy exception. It appears to rely on allegations of on-the-job lying and false reports as the common link with the City of Boston case. But that is not enough under the SJC’s previous decision. The Sheriff of Suffolk County decision identified no statutes, regulations or laws that specifically define the public policy that the jail guard’s behavior violates. Worse, the Court did not show why termination was required by the public policy, as opposed to merely desired or permitted. Unlike the City of Boston case, the SJC’s decision here contains no reference to any statute requiring the termination of jail guards who commit felonies.

The SJC’s comments about the results of the public policy test are not necessarily binding on later decisions, but they may be a warning sign of things to come. As in previous cases, the SJC gives lip service to the notion that the parties have bargained for the arbitration award and it should not be touched. Unfortunately, in practice, judges are more than willing to second guess the arbitrators when a decision rubs them the wrong way.

One very practical result of the SJC’s decision is its recognition that those who witness bad behavior and engage in a cover-up are likely to be treated the same as those who commit the misconduct. Lawyers, doctors and other professionals already operate under rules that require them to report colleagues who engage in misconduct. It is not surprising, then, that these principles are being enforced in other areas. All employees, especially those in positions of public trust, should make every effort to avoid misstatements. Telling the truth, the whole truth and nothing but the truth is not only the right thing to do – it could save your job.
Of course, as Pilate famously said, “What is truth? We both have truths – are mine the same as yours?” The issue of truth vs. lies is more complicated that management might see it. Some would classify the failure to report another’s wrongdoing in a different category from the affirmative statement of a falsehood. Furthermore, not every misstatement is intentional, and not every intentional misstatement is material. (Compare these lies: “I didn’t take the money” and “I played on my high school basketball team.”) But don’t be surprised if employers cite this decision to support the idea that any misstatement (whether or not intentional, whether or not material) is grounds for termination.

Finally, a word of caution: While ‘the truth, the whole truth, and nothing but the truth’ may be the proper route in many if not most situations, the federal and state constitutions provide protections for public employees who are accused of misconduct that could lead to criminal charges. Consult with your personal or union attorney to find out when the best approach is to invoke your right to remain silent.

An arbitrator has ruled that the Peabody Police Chief violated the past practice clause of a collective bargaining agreement and his own department rule when he unreasonably denied the request of a local union official to work as a reserve officer in another town. This arbitration victory highlights the benefits of having past practice clauses inside labor contracts.

For years, Peabody officers worked any outside job they wanted, so long as the job did not conflict with their police duties. Peabody officers worked successfully as athletic coaches, small business owners, and even police officers in other communities. The Chief even issued a department rule permitting officers to work outside jobs so long as they obtained his permission.

This longstanding and consistent practice suddenly changed when the vice president of the Peabody Police Benevolent Association, MCOP Local 351, AFL-CIO asked to work as a reserve officer in another town (a position he used to hold prior to accepting a full-time appointment in Peabody). The Chief denied the request without explanation. Later, the Chief provided new and different reasons every time he was asked to explain his handling of the request.

The Association grieved the Chief’s actions (it also filed a charge of unfair labor practice). While the Agreement contains no specific clause entitling officers to work outside employment, it does contain a “past practice” clause: “Employee benefits, privileges or working conditions existing prior to this Agreement not specifically covered by this Agreement shall remain in full force and effect.” It also has a broad definition of grievance. The practical benefits of broad arbitration and past practice clauses are very real: parties can settle workplace disputes in a relatively quick manner. As the arbitrator observed, “It is difficult to envision what type of dispute would be excluded from the grievance procedure.”

Following a hearing, the arbitrator credited the Association’s testimony and nearly rejected every argument and fact raised by the City. Over the City’s objections, the arbitrator found that he had the authority to resolve the grievance under the past practice clause. The Arbitrator refused to be cowed by assertions of management rights. Instead of finding that Management Rights language serves as a magic wand for employer actions, the arbitrator found that the Chief is obligated to exercise managerial authority in a non-arbitrary, non-capricious, and reasonable manner. The Chief here failed to do so.

The arbitrator rejected practically each and every defense asserted by the Chief. He rejected the fanciful claim that the Association and Chief previously agreed that officers could not work for other police departments. The arbitrator wrote, “There is no reliable evidence that the City notified the Union of its intent to discontinue the practice of allowing full-time City police officers to work as reserve officers in other communities” (emphasis added),

The arbitrator further found that the bizarre reasons cited by the Chief (e.g., training, liability, etc) to prohibit the Association official’s request to work as a reserve officer basically were bogus. He wrote, “There was no evidence that the Chief’s concerns were rooted in fact.”

Most damning of all perhaps is that the arbitrator found that the Chief fundamentally mishandled the officer’s request to supplement his income. The Chief failed to conduct a “reasonable inquiry” into the officer’s request, failed to raise any legitimate concerns, and failed even to talk to the officer, union and outside employer about any obstacles to working an outside job. In sum, the arbitrator found that the Chief abused his discretion in denying a request for no verifiable reason and therefore violated the collective bargaining agreement. For a remedy, the arbitrator ordered the chief to let the officer accept employment as a reserve officer for another town.

Download the decision

The Supreme Judicial Court has ruled that a public employee’s personal use of a municipal vehicle, which also is used for official purposes, does not count as “regular compensation” for purposes of retirement. The decision (http://socialaw.org/slip.htm?cid=18192&sid=120) is Pelonzi v. Retirement Board of Beverly, SJC-10098 (May 21, 2008.

The retirement allowance of public employees generally is based upon a percentage of the “regular compensation” paid to employees. “Regular compensation” generally includes base wages and other wage enhancements, such as specialty stipends and shift differentials, and excludes (contrary to media reports) overtime and details. Over the years, the Public Employee Retirement Administration Committee has held changing positions on whether the personal-use value of an employer-supplied vehicle qualifies as “regular compensation.”

In the case of Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651 (2006), the SJC ruled that housing payments paid to former UMass President William Bulger counted as “regular compensation” and ordered that these payments be figured into his retirement allowance. This decision naturally led many persons to conclude that all knowing personal use of a company vehicle qualified as “regular compensation.” The SJC’s decision now disabuses legal practitioners of this notion and reminds us that William Bulger’s case exists in a special class by itself.

The court agreed that “the personal use value of the city-supplied automobile [qualified] as a “regular” benefit, in the sense that it was recurring and not incurred as a bonus or in lieu of payment for special services.” This same benefit, however, did not qualify as “compensation . . . for the individual service” of the employee as that phrase is defined under General Laws Chapter 32, §1. Under the SJC’s analysis, a benefit qualifies as compensation apparently to the degree that the employee doesn’t need the benefit. To wit, Bulger didn’t really need a housing allowance, so it really serves as a financial incentive to him. Whereas, vehicles for public safety executives are “required by the fundamental nature” of the job. As the SJC wrote, “Employers routinely supply employees with other noncash job related accessories and benefits (e.g., cellular telephones, personal computers, facsimile machines, parking spaces) to enable their employees to perform their jobs more efficiently, and may authorize the personal use of these benefits as a matter of convenience.”

Therefore, personal-use value of a company car is unlikely to count toward public employee retirement in Massachusetts unless the employee can show that a written agreement with the employer provided a company vehicle as an enticement for the employee to improve his or her performance and that the employer could take away the vehicle (for either personal or official purposes) as a result of underperformance.

In a decision highly anticipated by the law enforcement community in Massachusetts, the Supreme Judicial Court Wednesday ruled that the state’s ban on lie detectors does not apply to police officers suspected of “criminal activity” – even to police officers who have received full immunity from state criminal prosecution.

General Laws Chapter 149, §19B prohibits public and private employers from subjecting employees to lie detectors for any reason. The law was first enacted by the legislature in the 1950’s. At that time, polygraph proponents (including many manufacturers) were aggressively pushing these magic boxes. The legislature, recognizing that polygraphs then, as they are now, are nothing more than junk science, passed the law to protect workers. The statute does contain a narrow exception for “lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.” Although this language clearly limits polygraphs to the context of criminal investigations, the SJC basically ruled that the situation need not involve criminal investigation or prosecution, so long the employee is a police officer.

In the case of Furtado v. Town of Plymouth (SJC-10049) (May 28, 2008) [http://socialaw.org/slip.htm?cid=18212&sid=120], the police department suspected that Police Officer Furtado sexually abused two minors. (He later was cleared of these allegations.) During its administrative investigation, the Town ordered Furtado to submit to a polygraph. Facing criminal allegations, the officer duly exercised his right to remain silent unless granted full transactional immunity from any criminal prosecution. (This right derives from Article 12 of the Massachusetts Constitution, and is broader than the right against self incrimination contained in the Fifth Amendment to the US Constitution. It was affirmed by the SJC in the case Carney v. Springfield, 403 Mass. 604 (1988), and is now generally referred to as “Carney” rights.) The Town successfully arranged for Furtado to receive this immunity.

As a result of being immune from criminal prosecution, the officer reasonably argued that he could not be subject to a polygraph. After all, Section 19B’s narrow exception for lie detector tests should not apply if there is no “criminal investigation.” The Appeals Court disagreed. The SJC opted to review the decision and affirmed the result. Sandulli Grace, PC Attorney Bryan Decker, along with John Becker and Patrick Bryant, filed a friend-of-the-court brief on behalf of the Massachusetts Coalition of Police, AFL-CIO.

Decker’s brief presented a wealth of evidence that underscored the scientific unreliability of the polygraph. (Indeed, the SJC itself has deemed polygraphs to be inadmissible in court.) Decker also presented cases from other jurisdictions that have struck down polygraph statutes as unconstitutional where the statute treats police officers differently than other public employees. The SJC, which has a record of being indifferent to the civil rights of police officers, ignored these arguments.

The SJC ruled that a public employer may subject an officer to a polygraph test so long as there is “an alleged crime in the picture (not, for example, mere violation of a departmental regulation).” The Court said it is irrelevant if criminal prosecution, as in Furtado, is impossible.

Given the skimpiness of statutory language to support its argument, the SJC supported its argument through the extraordinary measure of citing draft bills that the legislature never enacted. In order to reach the result that police officers may be polygraphed, the SJC looked at language in amendments to the polygraph law that had been rejected by the Legislature years ago. Distressingly, the SJC did not rely on ACTUAL amendments to the law, amendments that show a steady intent of the legislature to protect police officers along with other employees. Nothing in the legislative history suggests that the legislature intended to create an entitlement for Chiefs to harass employees through junk science.

In a bizarre logical twist, the SJC claimed that public employers would face “a Catch-22 situation” if forced to apply the laws as written. According to the Court, prohibiting polygraphs to officers immune from state criminal prosecution “would deprive police departments of their ability to order the lie detector tests of officers accused of serious misconduct violating the criminal laws of the Commonwealth, a tool that the Legislature has expressly granted them.” This is simply not true. A “Catch 22” is when “you’re da#$ed if you do and you’re da#$ed if you don’t.”  Here, the legislature has made it clear that employers’ cannot require polygraphs absent a criminal.  A grant of immunity AUTOMATICALLY means that no criminal investigation is possible.  Put simply, if there is no criminal, how can there be a “criminal investigation?” Thus, no criminal investigation, no polygraph.  So, the ultimate impact of the collision of Article 12 and the polygraph statute is that you can’t coerce a public employee into being polygraphed.  That result is consistent with the legislative intent of both protections, and is the opposite of a Catch 22. The Court takes this position even though the statute expressly permits the police to use the polygraph only in actual criminal investigations, and a decision in Furtado’s favor would not have changed that the legislature’s intent to limit the use of polygraphs to this situation. Someone reading the decision might conclude that the SJC is more sensitive to the needs of public employers than police officers.

There is still hope. The SJC suggested that polygraphs of police officers may be permitted only where “the crime being investigated [has] some connection to the employee’s job.” Arguably, polygraphs about certain off-duty conduct remain illegal.

Continuing its relative and seemingly endless streak of anti-union arbitration decisions, the state’s highest appellate court reversed an arbitrator’s promotion of a bargaining unit employee. In Somerville v. Somerville Municipal Employees Association, SJC-10089 (May 22, 2008) (http://socialaw.org/slip.htm?cid=18195&sid=120), the Supreme Judicial Court ruled that an arbitrator exceeded his authority when he ordered that the City of Somerville appoint a union employee to the position of Director of Veterans’ Services. The relevant collective bargaining agreement provided a promotional preference to the most senior unit employee, so long as no other candidate (either union or non-union) was significantly more qualified. Instead of following the contract, the Mayor promoted a non-union member who was no more qualified than the most senior union employee. The arbitrator upheld the union’s grievance and ordered the City to appoint a particular union employee. The Superior Court and the Appeals Court upheld the arbitrator’s decision. (Our blog entry on the fleeting Appeals Court victory is here: http://www.sandulligrace.com/sgblog/?p=92)

The SJC reversed. Thankfully, the SJC’s decision relies principally on the peculiar language of a statute applicable exclusively to Director of Veterans’ Services, G. L. c.115, § 10, rather than any broad principle of managerial rights. The statute states that the Director “shall be a veteran and shall be appointed in a city by the mayor, with the approval of the city council.” The SJC interpreted this statute as providing the mayor with an unambiguous right to appoint the director. The Court declined to interpret the collective bargaining agreement’s union preference as similar to “procedural” or “ancillary” union contract terms, which courts have generally permitted to be enforced.

In late February, we alerted you to the General Court’s efforts to pass legislation designed to strengthen penalties imposed on employers by reinstating automatic treble damages for employees who prevail in wage and hour lawsuits against their employers. (See Feb 27 and Feb 29 blog entries). We’re pleased to tell you that the legislation has now become law, taking effect on July 13.

As we noted earlier, the Governor refused to sign the legislation after it was first passed, instead sending it back to the legislature with a request that the law be watered down in favor of employers. Both houses of the General Court quickly rebuffed the Governor’s attempt to weaken the law and returned it to him without change. The Governor therefore had to veto it, sign it, or do nothing, which will cause it to become law. He chose the third, and the bill has now become law because Patrick failed to sign it or veto it.

The law reaffirms that the legislature intended for employers to pay treble damages when they break the law. That intent was questioned by the Supreme Judicial Court three years ago, when the court instructed judges to examine whether the violation was intentional before deciding on damages. Efforts to “fix” the SJC’s interpretation were launched almost immediately, but failed under the Romney administration. The legislature is to be commended for not letting the issue go, and for standing up strongly in support of workers who face unlawful actions by their employers.

The Supreme Judicial Court has unanimously confirmed the general “coming and going” rule that most Massachusetts workers are not entitled to workers compensation benefits for injuries suffered while traveling to or from work, even when the injury is caused by work-induced fatigue. The case is another example of the SJC’s indifference to the plight of the modern employee.

The decision, Michael Haslam’s Case, SJC-09915 (April 8, 2008) [http://socialaw.org/slip.htm?cid=18071&sid=120], concerns Michael Haslam, a carpenters’ foreman, who was assigned to the the Big Dig project. When Haslam completed his regularly scheduled 5 a.m.-3:30 p.m. shift, the major assignment that day – pouring concrete – had not even started. A carpenter needed to be present when the concrete finally was poured, and Haslam believed he would be fired if he left the work site prior to the task’s completion. Therefore, he worked until 8:15 a.m. the next day, when the project finally was complete. Exhausted from a 27-hour work day, Haslam tragically fell asleep while driving home and crashed into a utility pole.

The Division of Industrial Accidents granted benefits, but the SJC overturned DIA’s decision. Critical to the SJC’s analysis was the “voluntary” nature of the foremen’s overtime assignment: the foreman was not personally obliged to work overtime (the union contract arguably prohibited mandatory overtime), and the foreman never sought someone else to complete the assignment. In other words, the SJC blamed the foreman for his exhaustion and placed no duty on his Employer to ensure that employees are not exploited or overworked. The Court did not seem to acknowledge the modern-day work environment where people labor under significant, although unwritten, expectations of performance and the Court failed to grant much weight to the benefit derived by the Employer from the foremen’s continued work.

In deciding whether the exhaustion is caused by work, the SJC basically asked whether a “reasonable person” would perceive the overtime assignment as excessive and mandatory, not whether the injured employee felt that such work was excessive or mandatory. For instance, the SJC noted that 27 hours of work would not generally be considered excessive for a firefighter assigned to 24-hour shifts.

The SJC noted a number of injuries that may compel a grant of workers’ compensation benefits, even if the injury occurs while the employee is traveling between home and work, such as: exhaustion caused by excessive amount of mandatory overtime; injury arising from a “special trip” by the employee made at the request or benefit of the employer (such as attendance at an off-site mandatory meeting; or working an overtime shift during inclement weather). Interestingly, the SJC seemed to be more sympathetic to injuries suffered while en route to work, as opposed to injuries suffered while returning home.

As a result of this decision, employees who work a lot of overtime should, prior to working beyond a normally scheduled shift, try to establish whether the employer is mandating that the employee perform the extra work.

The SJC’s decision does not automatically apply to claims for injured-on-duty pay by public safety officers, which are covered under a different statute, G.L. c.41, §§100, 111F, and typically are resolved via labor arbitration. Moreover, Massachusetts courts have suggested that police officers are “traveling workers” who are exempt from the “coming and going” rule. Under court cases and arbitration decisions involving §111F, police officers in particular have had greater success in having injuries incurred while “coming or going” to be recognized as work related, especially where: the officer is subject to a Department rule mandating that s/he act appropriately on and off-duty; the officer is available to respond to calls for public safety at the time of the injury; the officer is traveling a direct route between work and home; and the officer is paid a basic weekly wage regardless of actual hours worked. See, e,g., Wormstead v. Saugus, 366 Mass. 659 (1975) (officer who was injured while returning from paid lunch break and remained on call is entitled to benefits under §111F); Gardner v. Peabody, 23 Mass.App.Ct. 168 (1986) (officer injured on en route to work after being ordered to report was entitled to 111F benefits).