Category Archives: Labor In The News

The Band Plays On: Civil Service Commission Abdicates Oversight Role To Human Resources Division – Refuses To Investigate Decision To “Band” Promotional Test Scores

The Civil Service Commission today rejected appeals filed by Sandulli Grace on behalf of the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police (and companion cases filed by the Boston Superior Officers and IBPO) challenging the Human Resource Division’s decision to start “banding” scores from civil service promotional exams when placed on eligibility lists.  Specifically, the Commission rejected the straightforward argument that HRD violated its own rule requiring that exam scores be listed “in whole numbers.”  Instead, Civil Service decided that scores expressed in bands, each containing up to 8 points, are in “whole numbers” because the bands are numbered 1 through 7.  When the HRD attorney made this ridiculous argument in the civil service hearing room, members of the crowd, including one sitting commissioner, audibly laughed.  Now, apparently, it is the law, contradicting the old adage that an argument should first have to “pass the laugh test.”

            In one decision the Commission ruled that individual offers are not “aggrieved” because they have not suffered “actual harm” – YET!  Reading Chapter 31 (Civil Service law) to only remedy past wrongs, the Commission ruled that since no one has been yet harmed by banding, the appeals are untimely.  Of course, it was our hope and desire to AVOID a situation where individuals are promoted based on banding only to have those promotions undone through an after the fact appeal.  (Indeed, Counsel to HRD, while claiming that our appeal was not ripe, simultaneously argued that the Commission could not go back and undo initial hiring decisions already made because of the chaos that would result.)  Unfortunately, the Commission punted rather than take the issue on headfirst.

            In the second decision on our request for an investigation (as opposed to an appeal), the Commission rejected our argument that HRD had violated its own rule.  Although our request only sought to require HRD to follow proper rulemaking regarding banding, the Commission nonetheless wrote a lengthy exegesis on how terrific banding really is, citing law review articles and unrelated dicta in federal civil rights cases.  Amazingly, the Commission quoted Massachusetts Federal Judge Saris, who opined in a decision that “banding … seems consistent with” civil service.  This is amazing because Judge Saris noted in the same case that “the attorneys have not briefed the issue,” and that “HRD has expressed some legal uncertainty as to whether the statutory framework in Massachusetts allows banding.”  Without a hearing, rulemaking, or any other legal proceeding, HRD has now gone from questioning the legality of banding to making it the law of the land.

            As to WHY HRD’s decision to band scores does NOT violate the “whole number rule,” the Commission held that bands “are whole numbers.”  By this logic, HRD could follow its “whole number” rule by scoring exams 1-100, 1-7 (as in banding), or 1-10,000 (as it did when it used to break down scores to the hundredth of a point).  In other words, the rule has no meaning.  This would be comic were it not for its effect on the careers of literally thousands of police officers who arduously studied, sacrificing earnings and time with their families, expecting their efforts to be scored by the rules.

            A stern dissent by two of the five Commissioners (Henderson and Taylor) pointed to the time and effort put in by test-takers with the expectation that their tests would be scored as they have been in the past: in whole numbers of 1-100.  They disagreed with the majority and would order the relief requested by our clients:

That the Commission order HRD to comply with its present rules and establish eligible lists from the October 2008 police promotional examinations in whole numbers and not utilize banding or any other method. 

To the extent that HRD desires to amend PAR. 07 (4)[the “whole number” rule], the Commission should then order that no such amendment become effective unless and until HRD complies with the statutory requirements of G.L. c. 31, §§ 3 and 4.

            Like the indulgent parent admonishing the wayward teenager taking the family Mercedes out for a spin to “be careful,” the Commission wagged a finger at HRD that, because of the enormous new power it was conferring on appointing authorities, it had better “embark[] forthwith on an inclusive, transparent selection process to ensure effective implementation by municipalities of post-banding selection procedures.”  That was what the Legislature created under the statutory “2N +1 Rule,” until HRD and Civil Service saw fit to destroy it.  But we need not worry, because the decision tells us that the Commission “will not stand idly by if presented with competent evidence that unlawful favoritism was the driving force behind a particular promotional appointment.”  This gives little comfort as we have watched Civil Service stand idly by while HRD makes up its own rules and the agency abrogates its statutory oversight role.

            The role of the Civil Service Commission as a watchdog against favoritism and overreaching by HRD is called into question when Civil Service refuses to demand that HRD conduct rulemaking in the open – AS IT IS REQUIRED TO DO. 

            Needless to say, we are reviewing our options with our clients.  Stay tuned…

LERA hosts dinner meeting regarding Veteran’s Benefits and Jobs.

LERA hosts dinner meeting regarding Veteran’s Benefits and Jobs.  The Labor and Employment Relations Association is hosting a dinner meeting regarding veteran’s benefits and jobs on Thursday March 19, 2008. The meeting is at;

NSTAR Electric  & Gas 

One NSTAR Way, (Please use EAST ENTRANCE) 

Westwood, MA 02090 


Social Hour @ 5:30 PM 

Dinner @ 6:30 PM 

Tickets: $50/Member • $60/Non-Member • $25 student 

Download the LERA_dinner_meeting flyer_

Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores

The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA).  At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours.  At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.

From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party.  The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.”  The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.”  The retort drew audible laughter from the crowd in the hearing room.  Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers.  Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing.  Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2.  HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.

Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding.  When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them.  Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD.  It became rather obvious whom HRD viewed as more important in this process.

On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system.  Quoting from a 2005 Connecticut Supreme Court case  which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:

“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”

Specifically, MCOP and BPPA asked the Commission to take the following actions:

  • Conduct a speedy hearing to ascertain whether HRD is acting within its authority in establishing eligible lists by banding;
  • Order HRD not to send out any eligibility lists using banding until the issue has been decided by Civil Service;
  • After the hearing, order that HRD follow its own rules and establish police promotional lists using whole numbers, unless and until it lawfully changes the rules.

In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.

In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied.  Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.

We now await the Commission’s decision on what the next step will be.  Stay tuned.

MassCOP To Serve As Only Police Labor Rep On Police Training Commission

Sandulli Grace, PC, congratulates its longtime client, the Massachusetts Coalition of Police, AFL-CIO (“MassCOP”), on its recent appointment as the only police labor representative to a special commission on local police training. Earlier this year, the Massachusetts Legislature passed Chapter 3 of the Resolves of 2008 to establish a special commission. The Commission’s dozen or so members will study the creation of a statewide law enforcement training program and improvement of municipal law enforcement training. Commission members include representatives from the Massachusetts House and Senate Joint Committee on Public Safety, the State Police Colonel, the Massachusetts Chiefs of Police Association, and several other entities related to law enforcement. MassCOP, which represents more than 3,200 police officers and police employees in the Commonwealth, was named in Chapter 3 as the only representative of rank-and-file police officers and police unions. MassCOP Vice President and Legislative Committee Chair Kenneth J. Scanzio will serve as MassCOP’s representative to the Commission. Sandulli Grace again congratulates MassCOP and Vice President Scanzio on yet another recognition of their status as leaders in advocating for sworn police officers.


No doubt that you have heard the overactive rumor mill regarding possible legislation on private paid details. Sandulli Grace is in constant contact with the legislative officers of the Massachusetts Coalition of Police (MassCOP) and the Boston Police Patrolmen’s Association (BPPA). Here’s what we know as of Tuesday Morning, April 1. This situation is developing hourly, and we will continue to keep you up to date:

The House transportation bill does not contain any attack on the use of sworn police officers to direct traffic at road construction jobs. There is a possibility that the Senate will attach a rider onto its version of the transportation bill that does impact details. If you agree that sworn police officers at private details provide enhanced public safety in a cost effective manner, you should call your senator and representative to let them know how important it is to maintain these protections.

CALL YOUR STATE REPRESENTATIVE AND SENATOR TODAY TO TELL THEM WHY sworn police officers at private details provide enhanced public safety in a cost effective manner.

You can look up your senator and representative (and get their phone numbers) here, by going here,

Our client MassCOP has developed the following helpful information regarding details, which you can cite when speaking with your legislators: (You can also download the information as a .pdf using this link: mcop-police-details-make-sense.pdf )


Putting aside the rhetoric and hyperbole, the facts demonstrate that having sworn police officers assigned to road and highway construction projects – so-called Paid Police Details – provides both enhanced public safety and cost effectiveness.


Sworn police officers are trained emergency first responders, ready and able to:

  • Perform CPR
  • Utilize defibrillators maintained in cruisers in the case of cardiac episode
  • Communicate effectively with fire and EMS responders, ensuring fast, effective response when accidents occur
  • Just last week, the first responders to the MBTA train tragedy in Canton were four Canton Police Officers (all members of MCOP) working a nearby private detail. These trained offices were able to immediately identify the needs and call for fire and ambulance services, and begin to provide emergency services while awaiting the arrival of the EMTs.

Sworn police officers performing private details means more cops on the street:

  • Police officers perform private details in the communities they police, providing extra protection to the people of the community in the event of a crime
  • Officers routinely assist motorists while performing private details
  • Officers routinely respond to emergency calls while performing paid details, frequently being able to respond faster than officers who are providing services elsewhere
  • Officers provide security to the construction and utility workers doing their jobs in high crime areas


The use of civilians to direct traffic at construction sites is unlikely to lead to meaningful costs savings:

Contractors will be required to pay civilians state prevailing wages to take the place of sworn police officers. The prevailing wage for such “flagmen” is currently (figures provided by Massachusetts Department of Labor):

  • Metro Boston $37.45 per hour
  • Central Mass $34.05
  • Springfield $30.72
  • Berkshires $29.97

In addition, contractors will need to pay payroll taxes and provide health insurance to civilians hired to replace sworn police officers. When you add it up, it doesn’t make sense.

Appeals Court Rules Employer Immune From Tort Liability For Workplace Injury

“Employee misclassification” has long been a problem that costs workers and the government billions of dollars every year. Employers are notorious for trying to label employees “independent contractors” in order to avoid paying payroll taxes and worker benefits. “Employee Misclassification” is especially common when workers have been injured, harmed, or otherwise mistreated at work. In circumstances where employees organize to form unions, are victims of illegal discrimination, file claims for unpaid wages or overtime, or are terminated without just cause, it is a common litigation dodge of employers to argue that they are not, in fact, employers. The recent Massachusetts Appeals Court case of Fleming v. Shaheen Brothers, 07-P-255 (Feb. 21, 2008) provides a unique instance when an employer has a financial incentive to prove that it is the boss to an employee injured on the clock.

In general, Massachusetts workers compensation law provides immunity to employers from personal injury claims by employees injured on the job. As the tradeoff for requiring employers to contribute to workers compensation insurance to make lost compensation and health benefits available, the law prohibits injured workers from bringing personal injury claims, which could potentially provide much large awards. (In certain circumstances, employees may file personal injury claims against third parties that caused the injuries, including manufacturers, and sometimes against fellow employees).

In Shaheen Brothers, an employee was injured while operating a forklift. The employee and his wife sued the employer and the forklift manufacturer. Shaheen Brothers hired, supervised and directed the employees. But, as is not uncommon in the construction industry, Shaheen Brothers outsourced its administrative and payroll functions to a different company, NBS. It was NBS, not Shaheen Brothers, that paid employees, withheld taxes and contributed to unemployment and workers compensation funds. The injured employee argued that NBS, not Shaheen Brothers, was his employer and Shaheen Brothers therefore was not immune from liability for personal injury claims. The Appeals Court disagreed. “NBS cannot be considered a general employer if it did not exercise any control over Fleming’s work duties; performing payroll functions does not amount to a working relationship.”

In concluding that an employer-employee relationship existed between the injured employee and Shaheen Brothers, the Appeals Court relied on the golden rule of “if it walks like a duck, it’s a duck” rather than technical niceties. In other words, if the company hires you, assigns you work, supervisors your work, and has the power to discipline you or change your wages, then it is your employer for purposes of workers compensation, regardless of who is listed on your paystub.

Legislature Affirms Intent To Strengthen Wage And Hour Law

Contact The Governor To Tell Him To Stand With Workers On S. 1029

As we noted on Wednesday, earlier this week Governor Patrick refused to sign legislation designed to strengthen penalties imposed on employers that violate state wage and hour laws. Instead, he sent the bill back to the legislature with a demand that it be watered down. I’m very happy to report that both houses of the Legislature have rejected the Governor’s amendment. On Tuesday, the Senate rejected the amendment, and yesterday the House concurred. The legislature will soon formally re-enact the bill mandating triple damages for violations of state wage and hour laws. Once that happens, it goes back to the Governor.

Once the bill is returned to the Governor, he has three choices – he can veto it, he can sign it, or he can do nothing, which will cause it to become law. Let the Governor know that you want him to join with the legislature and support workers rights by signing S. 1029. You can call the Governor’s office at 617-725-4005 or 888-870-7770 (in state). Or you can send him an e-mail using the form on his webpage,

While you’re at it, consider dropping your Senator and Representative a note to let them know that you appreciate their refusal to bend to the Governor’s attempt to weaken workers’ rights. You can get contact information for your representatives by filling in your address here,

Gov. Patrick Refuses to Sign Pro Worker Legislation

In a major concession to employers, on February 25 Governor Patrick, like Mitt Romney before him, refused to sign legislation designed to strengthen penalties imposed on employers that violate state wage and hour laws, instead sending it back to the legislature with a demand that they water down the law. At issue was S. 1059, which would have reinstated automatic treble damages for employees who prevail in wage and hour lawsuits against their employers. Patrick balked at signing the law, instructing lawmakers to fashion a bill based on the weaker Federal Fair Labor Standards Act.

In 1993, the Legislature significantly strengthened Massachusetts wage and hour laws, giving enforcement power to the Attorney General and giving employees the right to sue directly. Under the 1993 law, employees who prevailed in their suits were entitled to recover their attorney’s fees, and also to recover triple damages for the violations. For years, courts routinely upheld triple damages in such cases. Unfortunately, in 2005, the Supreme Judicial Court, in the case Weidman v. The Bradford Group, Inc., 444 Mass. 698 (2005), ruled that judges had the discretion to not award triple damages. The General Court, in response to Weidman, passed bills that clearly reiterated the legislature’s intent that triple damages be mandatory, and not subject to a judge’s discretion. In the last session, then Governor Romney vetoed the bill. Senate Democrats, seeking to restore worker protections, did not anticipate the same treatment from a Democrat Governor. But that’s what they got. The governor refused to sign the bill, instead calling for the General Court to go easy on employers who violate the law “in good faith, on the advice of counsel and guidance from the governmental authorities.” The federal law, which is weaker than state law in many areas, allows employers to avoid paying extra damages based on a “good faith” defense.

Unfortunately, this action by the governor is not entirely surprising. While Gov. Patrick campaigned as a friend to workers, he spent much of his legal career making millions representing management, including management at the aggressively anti-union Coca-Cola, and his wife is a management-side lawyer at one of the corporate law firms in Boston. Patrick’s action is particularly galling in that he calls on the state to mimic weaker federal law. Of course, Massachusetts prides itself on providing greater protection for workers than federal law requires. For example, Massachusetts protects workers from discrimination on the basis of sexual orientation, federal law does not. Indeed, Massachusetts just raised the minimum wage to $8.00 per hour, the second highest in the nation (the minimum wage in Washington State is $8.07), while the federal minimum wage remains at $5.85. So the governor is asking the General Court to take a step backwards.

The Governor’s plea for poor employers who have to pay their employees damages rings particularly hallow. We’re talking about a group of employers who have been found to have unlawfully not paid their workers! Patrick calls triple damages “unfairly punitive” to employers, but what about the workers who aren’t paid in the first place? Again, prevailing workers were routinely awarded treble damages prior to 2005. Did paying for their sins cause our workforce to crumble? No, in fact, the “triple damages era” corresponded with the economic boom of the 1990s. The bottom line is that this legislation was passed to reinstate what the General Court intended all along – that employers be punished when they fail to pay their employees in accordance with the law. Governor Patrick’s refusal to sign it stifles this worthy goal.

Legislature Amends Health Insurance Law

On July 16, 2007, the Massachusetts legislature amended the law to enable cities and towns to more easily join the Group Insurance Commission for the provision of health insurance to municipal employees.  The Group Insurance Commission (GIC) is the entity that provides health insurance for state employees.  The legislation specifically amends Section 19 of Chapter 32B, providing for coalition bargaining for health insurance, was drafted by a bipartisan group of labor and management representatives.

Read a summary of the bill

Mass Supreme Judicial Court agrees to review decision allowing Police Chief to order polygraph of Employee

Recently, in Furtado v. Town of Plymouth, 69 Mass.App.Ct. 319 (June 11, 2007), the Massachusetts Appeal court ruled that a police officer can be forced to submit to a lie detector examination under threat of discipline in most circumstances. As noted in our report of the case on June 28, Sandulli Grace attorneys, on behalf of the Massachusetts Coalition of Police, conferred with the officer’s attorneys and filed an amicus (friend of the court) brief with the Supreme Judicial Court, urging that the Court accept review of the case and overturn this troubling decision.

On September 11, 2007, the Supreme Judicial Court granted the request to review the case, and it will now be heard by the full Court. We will, of course, continue to work with Officer Furtado’s attorneys, and will be filing a full Amicus Brief addressing all issues in the case. It is our hope that the SJC will overturn the Appeals Court decision, and affirm the legislature’s intent to prohibit employers from even trying to force their employees to undergo these junk science tests. As always, we’ll keep you posted.