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.

At the end of December 2018, Massachusetts Governor Charlie Baker signed into law a new bill that provides important protections for first responders in critical incidents. The signing was the culmination of six years of work by the Massachusetts Law Enforcement Policy Group, which includes the major public safety unions in the Commonwealth. This year’s effort was spearheaded by the Massachusetts Coalition of Police (MassCOP), the Boston Police Patrolmen’s Association (BPPA), and the Boston Police Detectives Benevolent Association as part of a coalition of many different groups and interested individuals all pursuing the goal of providing protection to individuals involved in stressful critical incidents.

The law, which is entitled “An Act Relative to Critical Incident Intervention by Emergency Service Providers”, makes communications between emergency service providers, such as police officers, firefighters and EMTs, with crisis intervention personnel confidential and privileged (with certain exceptions). The purpose of the law is to allow first responders at critical incidents to obtain needed counseling and crisis intervention services without having to worry about whether conversations that occur in that context will later be disclosed. Without this law, a stress counselor or other crisis intervention specialist could be forced to testify in court about what a first responder said as part of counseling and treatment. The privilege created by this law is similar to the laws protecting confidentiality of conversations with psychotherapists. These laws recognize that the mental health of these individuals is a priority, and keeping the communications confidential will allow the individuals to participate fully in the counseling without having to worry about whether these conversations will be disclosed in future proceedings.

The law recognizes that stress and trauma experienced by police officers, firefighters, EMTs and other first responders when responding to critical incidents can cause serious long term psychological harm and, in the worst cases, lead to PTSD, substance abuse, and even suicide. Getting stress counselors and other crisis intervention personnel to the scenes of critical incidents to provide assistance to these first responders is crucial in preventing long-term harm, but such intervention will be more effective if all parties know that the communications made in the course of such intervention will be kept confidential.

The new law recognizes that in certain situations, the privilege will not apply. These include situations in which a crisis intervention specialist reasonably believes that the first responder: (1) is an imminent threat of harming himself or others; (2) has engaged in child abuse; or (3) has admitted to committing a crime or violating a law normally enforced by the public safety agency that employs him. The privilege would also not apply to crisis intervention specialists who were themselves first responders or witnesses to the critical incident, or to situations in which the first responder has disclosed the information to a third party (other than his attorney, spouse or psychotherapist).

Third time was a charm for this bill, as this was the third consecutive legislative session in which it was filed. Rep. Edward Coppinger of West Roxbury guided the bill through the committee process in the House, and Sen. Michael Moore carried it through the Senate. Also crucial to the process on the House side were Reps. Hank Naughton, Ted Speliotis, Dan Cahill, Tim Whelan, Tom Walsh and John Lawn. Leaders of the legislative effort, including Larry Calderone of the BPPA, John Nelson of MassCOP and Michael Muse of the Boston Detectives, met with the Governor, Lt. Governor, Speaker of the House DeLeo and Senate President Spilka, among others, to shepherd this bill to success this December.

The text of the law, which is now Chapter 329 of the Acts of 2018, can be found here.

A recent decision of the Massachusetts Appeals Court provides a warning to employees: some state laws that appear to provide protections to employees cannot be enforced by employees who have suffered abuses. The case provides an excellent example of why joining a union provides employees with better protections from overreaching employers than state laws and the court system.

One of the benefits of being in a union is that you can file grievances under the collective bargaining agreement (CBA) between your union and your employer. The grievance procedure normally covers any violations of the CBA and the CBA usually contains provisions that set your wages, hours and many of the terms and conditions of your job. Going through the grievance procedure (which usually ends with final and binding arbitration by an arbitrator picked by the union and the employer) means you don’t have to go out and get a lawyer, or go to a state agency on your own. Although the union does have control over which cases to take to arbitration, clear violations of the CBA will normally be resolved through the grievance process – either at or before arbitration.

Employees who are not in unions have to rely on a complicated web of state laws – some incorporated in statutes, others embodied in judicial decisions (also known as the “common law”) – to enforce their rights. In some cases, they have to prosecute their claims through state or federal agencies or in state or federal court. These processes are almost always lengthy and complicated, and they usually require the employee to hire a lawyer at his or her own expense.

The recent Appeals Court case of Tortolano v. Lemuel Shattuck Hospital (Tortolano) demonstrates that, even when there appears to be a state law that protects employees, there may be no procedure for employees to use that law in their favor. Tortolano, which was decided by the Massachusetts Appeals Court on August 20, 2018, provides an excellent example of a state law that is not what it seems. Section 30B of Chapter 149 of the Massachusetts General Laws requires employers to pay overtime pay at time and a half for certain non-exempt Massachusetts employees. Andrea M. Tortolano, an employee of the state-run Lemuel Shattuck Hospital, believed that she had not been paid proper overtime for time when she was on call in violation of Section 30B. She went to the Attorney General’s office, which gave her a letter saying that it was not going to pursue the matter, but giving Ms. Tortolano the right to sue for a violation of the statute on her own behalf. But when Tortolano sued, her employer argued that Chapter 149, Section 30B did not give private individuals the right to sue for violation of the law. The only entity that could sue an employer for violating Section 30B was the Attorney General’s office. A judge in the Superior Court agreed with the hospital and dismissed the case, and the Massachusetts Appeals Court affirmed the decision. The Appeals Court essentially held that the Attorney General’s “right to sue” letter wasn’t worth the paper it was printed on. Because the Attorney General decided not to sue, Ms. Tortolano was out of luck.

In reaching the conclusion that individual employees could not sue under the overtime law, the Appeals Court relied on the SJC’s earlier decision in Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337 (2008). In that case, the state’s highest court ruled that there was no private right of action for employees to sue an employer who failed to provide a meal break as required by Section 100 of Chapter 149. The logic of both Tortolano and Salvas is that because some of the provisions of Chapter 149 specifically permit employees to sue on their own (such as Section 148, which provides for timely payment of wages), the provisions that don’t specifically give individual employee the right to sue are only enforceable by the Attorney General.

The lesson of Tortolano and Salvas for unionized employees is this: don’t assume that a statutory right is enforceable on your own. You are better off negotiating these statutory provisions into your CBA and using the grievance procedure (including binding arbitration) to enforce them, thus avoiding the overworked and expensive court and agency processes.

The lesson for non-unionized employees is even clearer: organize!

Read the decision here.

Sandulli Grace and the Massachusetts Coalition of Police are pleased to announce a day-long “Advanced” training for MCOP officials and members. It will take place on Wednesday, October 3, 2018 at the Doubletree Hotel in Westboro, from 8:30 to 4:30. Click here for a brochure with registration information.

MassCOP believes in empowering its local unions through education to create a stronger, safer environment for its members. Our trainings give you tools to enforce your rights and improve your members’ working conditions.

This advanced training will go beyond our recent “Basics” trainings, which are geared toward new local officials. Our “Advanced” training will be an in-depth discussion of challenging issues that arise day-to-day for police unions. It is geared toward all union members, and union officials with or without prior experience running a union. Topics will include:

• Unfair Labor Practices
• Management Rights
• Just Cause for Discipline
• Health Insurance
• Shootings and Other Critical Incidents
• Injured on Duty Benefits and Disability Retirement
• Regular Retirement Options
• Issues facing Public Safety Dispatchers
• Drafting and Processing Grievances

There will also be a discussion of the U.S. Supreme Court’s recent decision in Janus v. AFCME Council 93.

Each topic will be taught by a team of Sandulli Grace attorneys. We will provide written materials you can take home with you for future use. There will be time for questions, and practical applications of the concepts discussed. At the end of the training, the attorneys will hold a half-hour “ask the lawyer” forum and take questions about any topic of interest to the attendees. There will be a luncheon, and the day will end with a cocktail reception.

To register, please e-mail Gia Capozzi at GCapozzi@sandulligrace.com.

Any questions can be directed to lpanettiere@sandulligrace.com. You may download the event flyer here

We look forward to assisting you in providing the best representation possible for your members.

Leigh Panettiere
Sandulli Grace, P.C.

On June 27, 2018, the US Supreme Court issued its long expected decision in the case of Janus v. AFSCME, Council 31. By a 5-4 majority, the Court ruled that it is unconstitutional for a union representing public employees (federal, state, or municipal) to require its members to pay anything to their union, even though, in most states, that union still has a duty to represent them. If it seems odd for the Supreme Court to rule that unions, private organizations funded by workers’ dues, should have to provide free services to fellow workers who choose not to pay dues, welcome to the current political landscape. But, first, how does the case affect unions now?

Janus has no effect on unions representing private employees. It deals only with public employee unions, such as police officers, fire fighters, teachers, municipal and state workers.

If you are a union member, you continue being a member. There is no direct effect on you.

The immediate impact is: there is no more required agency service fee. What, you may ask, is an agency service fee?

In certain states with public sector collective bargaining laws, such as Massachusetts (governed by Chapter 150E), when a union is chosen by a group of workers to represent them for collective bargaining purposes, that union is obligated to represent all of the employees in that particular group. The group represented by the union is called a bargaining unit. For example, when the police in, say, Lynn, voted to be represented by the Lynn Police Association, that Association (for our purposes, “Association” and “Union” are the same thing) became the “exclusive collective bargaining representative” of the bargaining unit of all of the police in Lynn. Under Chapter 150E, that Association became legally obligated to represent all of the Lynn police, because they are all part of its bargaining unit.

Under preexisting law, public employees could not be compelled to join a union, even when that union has a duty to represent them. However, in Massachusetts and other states with fully developed labor laws, bargaining unit employees who did not want to join their union could be required to pay their fair, proportionate share of the union’s cost of representing them. As members of the bargaining unit, agency fee payers receive the same wages and contractual benefits as union members. Their grievances had to be processed the same as members’ grievances. This “fair share” payment is an agency service fee.

Generally, the amount of the agency service fee was somewhere around 80-85% of the union dues. Not being union members, employees who paid agency service fees could not run for union office, serve in any union position, or have any say in how their unions were run. They also received considerably fewer services than union members, but more about this below. Suffice it to say that, in Massachusetts, not many workers opted to be agency fee payers and, among public safety unions, they were virtually non-existent.

The Janus decision says members of a bargaining unit who refuse to join their union can no longer be required to pay an agency service fee. In fact, they cannot be required to pay anything. Yet their union, under existing Mass. law, still has a duty to represent them in the areas where the union serves as the exclusive collective bargaining representative. Those areas are contract negotiations and grievance processing.

While the case was supposedly decided on First Amendment (“free speech”) grounds, anyone who thinks it a product of refined legal reasoning and scholarship should consider applying to Trump University. The decision is designed to cripple public sector unions, who provide both funds and foot soldiers for causes which ultra-conservative billionaires like the Koch Brothers oppose. We need only look at the 62-38 trouncing of the charter school referendum in the 2016 Mass. election. Only the human and economic resources of teacher and other unions (both public and private sector) succeeded in countering the tens of millions of dollars the charter school proponents pumped into the campaign. These ultra-rich also don’t particularly enjoy paying taxes so that police officers, fire fighters, teachers, and other public workers can lead decent lives with decent benefits and retire on livable pensions. In short, Janus is only superficially about free speech; what it’s really about is breaking unions.

While quitting your union and letting your co-workers’ dues pay for the cost of negotiating your contract and handling your grievances may be an option for some, there are significant downsides to this approach. In many unions, particularly public safety, union members receive significant benefits outside of the contract which are not provided to non-members. Unions represent their members in civil service, retirement, unemployment, and other areas where non-members receive no services. For police officers, in particular, unions provide legal representation at critical incidents and defend their members in civil and criminal cases arising out of their employment. Union members also receive representation in both departmental (“internal affairs”) and external (state and/or federal) investigations. Since these services are provided outside of the collective bargaining agreement, non-members receive none of them. Teachers in Massachusetts who are wrongly terminated can appeal only through an individual arbitration process. The union will fight to get its members their jobs back; non-members can either represent themselves or mortgage their homes to hire their own counsel.

Besides these specific and practical reasons, public workers, at least in Massachusetts, need only look at the benefits they have gained through collective bargaining. During this past year, we have seen teachers in states without union bargaining rights (West Virginia, Oklahoma, Kentucky) marching on their state capitals to achieve even the most modest wage and benefit improvements. While public employees in Mass. have not gotten rich, they have at least been able, for the most part, to be able to lead decent lives, raise and support their families, and retire with some modicum of financial security.

You can anticipate that anti-union groups will conduct a negative campaign to try and convince you to abandon your union and stop paying dues. Groups like the NRTW (National Right to Work) organization, (an oxymoron if ever there was one) will undoubtedly conduct a campaign. They will likely start with the teachers, but all other public employee unions will come next. Members who want to abandon their union must, in Massachusetts, provide at least 60 days’ notice of cancellation. This will provide you and others from your union an opportunity to educate your colleague. The message is very simple: Your union is only as strong as its members; working together we can make our lives better and have some say in our destiny.

Not too long ago, when you bought a house, you got a 30 year mortgage. You paid the same amount every month and, over time, you gained some equity. If you stayed in the house, eventually you paid it off and not only had a place to live but also something to pass on to your children. Then, about 20 years ago, some Wall Street sharpies got a lot of people to refinance or buy new houses. For the first few years, there were very low monthly payments on artificially low interest rates with no payments of principal. The sharpies made a lot of money creating and selling complex financial instruments with these mortgages. If your house went up in value and you sold it, it was a great deal. But in 2008 and 2009, when you couldn’t sell your house, all of a sudden the principal payments and higher interest rates kicked in and the monthly payments were crushing. A lot of people lost their homes.

This is what Janus is all about. On the surface, getting some of the benefits without paying anything looks great. But, over the long haul, you’re just being taken for a sucker. Let’s not get fooled again.

Imagine this scenario: You have a pretty good job in the private sector. You’ve been working there a while and have been making fairly good money. You have received good reviews and haven’t been disciplined. One day, your boss walks in and says, “You’re fired.” When you ask, “Why?”, your boss says, “No reason.” For the vast majority of employees in the United States today, this scenario – while perhaps unlikely – is perfectly legal.

The dirty little secret of the American workplace is the at-will employment rule, which governs the majority of non-government jobs (and a fair number of public sector jobs as well). According to this rule, an at-will employee can be fired for a good reason, a bad reason or no reason at all.

I can hear the protests from employers: if I fired someone for no reason, they’ll sue me. Yes, maybe. But would they win? Unless there are special circumstances (see discussion below), in many cases, the employer would win. What is your legal claim? What law did your employer violate? There is a very good chance that the termination of your employment didn’t violate any laws at all.

Are there exceptions to the at-will employment rule? Yes. The first and best exception is for union employees. Nearly every union contract contains two provisions that take the at-will employment rule and throw it out with the trash: first, a provision stating that employees may only be discharged for just cause, and second, a grievance-arbitration procedure providing that a neutral third party decides whether the employer had just cause to fire you. Not only do these contractual provisions establish a valuable set of workers’ rights, they also avoid the need to sue your employer. Instead of sending individual employees to sue in court, the collective bargaining agreement provides an in-house mechanism that is (usually) cheaper and quicker than litigation for determining whether your termination was just or unjust.

What about negotiating a better deal on your own? A few select high-powered employees with special skills have the clout to negotiate individual employment contracts, and most of those contracts include just cause protection. But the vast majority of non-union workers don’t have many options to fight arbitrary employer behavior, and most of those choices involve getting a lawyer and going to court – an expensive and time-consuming process in a judicial system that is increasingly unfriendly to the underdogs of society.

In rare cases, the requirement of just cause for termination has been adopted through legislation. If you live in Montana or Puerto Rico, you are in luck – those jurisdictions have laws requiring employers to have just cause for firing an employee. In other states, the courts have constructed various exceptions to the at-will rule in limited situations. There is a public policy exception, which has been adopted by the majority of states, including Massachusetts. According to the public policy exception, an employer cannot fire an employee when the termination would violate a well-defined and explicit public policy. This exception has been applied to cases in which employees were discharged for filing workers’ compensation claims, serving on juries or refusing to commit perjury for the employer. There is the implied contract exception, which all but 12 states have adopted. Under this exception, courts have found that statements made to employees by employers, usually in job handbooks and other writings, may create a promise that the employee will only be fired for good cause. Such documents may also bind the employer to follow certain procedures before firing an employee. The most far-reaching and least common exception is the implied covenant of good faith and fair dealing, which has been adopted by Massachusetts and 10 other states. According to this doctrine, an employer must act in good faith in making employment decisions. The implied covenant of good faith and fair dealing prohibits an employer from firing an employee for a bad reason – such as to avoid paying the employee a commission – but does not go so far as to require the employer to have a good reason for firing someone.

But what about all the laws out there protecting workers from unfair treatment, you might ask. Yes, but. Each of these laws has a very specific target and procedure, and courts and government agencies have in some cases created significant hurdles to winning a claim. So, for example, if you are fired in retaliation for blowing the whistle on your employer’s illegal or unsafe actions, you may be protected. If you are fired in retaliation for exercising your rights under some other statute (such as filing a discrimination complaint or trying to organize a union), you may be protected. If you are fired because of your race, sex, ethnicity, religion, age, disability (or perceived disability), sexual orientation, veteran’s status or other specific category, you may be protected. But ask any employment lawyer whether it is easy it is to win a discrimination lawsuit: even in cases where there seems to be blatant bias, complicated legal rules can keep justice out of reach or delay the outcome for years.

So, yes, there are many different ways the law protects workers from unfair treatment, but most of these statutes and common law exceptions to the at-will employment rule do not address the scenario set out at the beginning of this article. Let’s say the boss is telling the truth when he or she says, “I don’t have a reason” and can prove it in court. Unlikely? Perhaps. Even the implied covenant of good faith and fair dealing – if you’re lucky enough to be in a state that has adopted it, like Massachusetts – may not be enough to protect you. And what if the boss does have a reason that has nothing to do with any of the protected categories set out above? It doesn’t have to be a good reason, as long as there is no evidence of bad faith. Your performance isn’t up to snuff, or you’ve broken a company rule. You and the boss are having a personality conflict. Or maybe you’re just not on the A Team, not among the boss’s favorites. None of these reasons, on its face, is illegal, at least in most jurisdictions. If you don’t have a union to protect you, you may be out of luck. Unless, of course, you live in Montana.