Public Employee May Sue Employer For Statutory Benefit When Union Contract Is Expired

Under G. L. c. 126, §18A, jail employees and corrections officers are entitled to “assault pay” if injured by a prisoner or patient in their custody. The benefit is roughly analogous to injured-on-duty pay for police officers and firefighters under G.L. c.41, §111F (§111F benefits apply if the disabling injury is work-related, not just prisoner-related).

As with police union contracts that mention §111F benefits, the applicable collective bargaining agreement for the corrections official in the Appeals Court decision of Presby vs. Commissioners Of Bristol County, 06-P-1499 (July 2, 2007) made reference to assault pay benefits. The officer was injured while running to quell a fight among inmates. He then applied for assault pay, which the employer denied. The employer also denied a grievance filed by the officer. As the union contract was expired at the time and the Union could not demand arbitration of the grievance, the corrections officer then sued in state court for assault pay benefits.

On some occasions, an employee seeking benefits under a state law that also is referred to in the collective bargaining agreement must exhaust the grievance/arbitration procedures before going to court. For instance, there are some decisions ruling that a public safety officer seeking §111F benefits cannot skip the grievance route and proceed directly to court. Here, the Appeals Court ruled that there is an exception to this general rule when the contract has expired. Therefore, the employee’s suit was proper.

The Appeals Court went further and ruled that the officer was entitled to assault pay benefits because his injury arose in the course of responding to prisoner violence, even if no violence was inflicted upon him. This decision may be useful to off-duty public safety officers injured when attempting to respond to a call for service from the employer.

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