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.