Tag Archives: mass

New Massachusetts Sick Time Law Explained

As you know, on November 4, 2014 Massachusetts voters approved ballot question 4 which enacts a new section of MGL c. 149  section 148C and provides for Massachusetts employees to earn and use 40 hours of sick leave in a calendar year.

This new law is effective July 1, 2015.  The law applies to employees of private and public entities with eleven or more employees.  However,  employees employed by cities and towns shall not be considered employees for purposes of this law until this law is accepted by vote of the city or town as a local option or by appropriation as provided for in Article CXV of the Amendments to the Constitution of the Commonwealth.  A local option law for a city must be voted on by the city council in accordance with its charter and in the case of a town by town meeting or town council.

Although most unionized employees already earn sick leave, some benefits of the new law that may not already exist are as follows:

  1. Any and all of the 40 hours of sick leave can be used to care for an employee’s child, spouse, parent or parent of spouse.
  2. The sick leave can be used for both physical and mental illness.
  3. The sick leave can be used for routine medical appointments for the employee or family members.
  4. The sick leave can be used for time needed to address the psychological, physical or legal effects of domestic violence.
  5.  Employees may carry over up to 40 hours of unused sick time to the next calendar year.
  6. An employer may only require medical certification for use of sick time when an earned sick time period covers more than  24 consecutively scheduled work hours and such certification cannot  require that the documentation explain the nature of the illness or the details of the domestic violence.
  7.  It is unlawful for the employer to use the taking of earned sick time as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination or to otherwise discipline an employee for using sick time.

This new law provides minimum benefits and employers can adopt or retain earned sick time policies that are more beneficial than the requirements of this Law.  Sick leave also continues to be subject to collective bargaining.  However, any sick time employment benefit program or plan cannot provide any lesser sick time rights than the rights established under this law.

Massachusetts Civil Service Residency Amended

The Governor has just signed the budget which includes an amendment to MGL c. 31 sec 58.

C. 31 sec 58 is a section of the Civil Service Law and addresses “Municipal police officers and firefighters; qualifications.”  It includes a residency requirement for civil service police officers and firefighters, stating that within 9 months of appointment a person must reside within the city or town where he/she is employed or at any other place in the Commonwealth that is within 10 miles of the perimeter of such city or town. The Amendment to sec 58, included in the budget, provides that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. Therefore, police and firefighter unions in civil service cities and towns may now negotiate to expand the civil service 10 mile residency requirement of sec 58 beyond the 10 miles.

What remains unclear is the relationship of this amendment and the residency requirement of MGL c. 41 sec 99A which requires police officers and firefighters to reside “within fifteen miles of the limits of said city or town.”  For any city or town where the police and fire departments are not covered by the civil service statute, this new amendment will have no impact and those police officers and firefighters continue to be covered by c. 41 sec 99A and must reside within 15 miles of the City or Town where he/she is employed. As for civil service communities, at a minimum, the amendment to c. 31 sec 58 certainly provides for collective bargaining in order to increase the 10 mile limit of sec 58 to the 15 mile limit of sec. 99A.

Based upon the case Mulrain v. Board of Selectmen of Leicester, 13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain  case addressed the conflict between the 2 statutes and stated that:

“We hold that the more specific provisions of the new sec 99A control the more general provisions of new c. 31 sec 58, concerning the effect of town by-laws.”

However, the Mulrain decision did not specifically address the conflict between the 10 mile and 15 mile limits.

When the Civil Service Commission recently decided the case of Erikson v. Rockland Fire Department, I-12-100, (January 24, 2013), it found that c. 31 sec 58 continued to require civil service firefighters to reside within 10 miles of the city or town where he/she was employed. That case did not address the conflict with c. 41 sec 99A and was a Civil Service Commission decision, not a judicial determination. Furthermore, when the Appeals Court in City of Lynn vs. Lynn Police Association, 12-P-1122 (March 27, 2013), addressed the applicability of c. 41 sec 99A to the City of Lynn police officers, it affirmed that the 15 mile limit of c. 41 sec 99A applied and that under the provisions of c. 41 sec 99A the only way that a city or town can impose a more stringent residency requirement is through collective bargaining. Therefore the Appeals Court made it clear that the 15 mile limit of c. 41 sec 99A governed even though Lynn is a civil service community.  The Court made no reference to c. 31 sec 58.

Therefore, as a result of this amendment to c. 31 sec 58, public safety unions can now bargain over the appropriate distance for a residency obligation.  At a minimum the bargaining can move the 10 mile requirement to 15 miles so as to reconcile c. 41 sec 99A with c.31 sec 58.  However, since this amendment is the Legislature’s most recent action concerning residency for civil service police and firefighters, under the principles of the Mulrain case, it certainly can be argued that municipal employers and public safety unions can bargain for a distance in excess of the 15 mile limit since the new amendment does not put any cap on the appropriate distance for a residency requirement and merely says that the distance may be increased under a collective bargaining agreement negotiated under chapter 150E.

In addition, there continue to be bills being considered by the Legislature to further address residency requirements for police and firefighters.  Some would increase the mile limitation and others would limit the residency requirement to a period of years and still others would preclude requiring residency within a city or town. We will continue to monitor the progress of these other bills and inform you if anything else changes.  Stay tuned..

Evergreen “Fix” Signed into Law

On November 22nd, Governor Patrick signed the Evergreen “Fix” bill into law.  The bill was passed as an emergency act so it immediately goes into effect.  Accordingly, municipal employers are bound to the terms of collective bargaining agreements with an evergreen clause until a new contract is negotiated.  This is now the law, even if an evergreen clause extends a collective bargaining agreement beyond three years.

“Evergreen” Problem Fixed by Legislature

Last fall, the state Supreme Judicial Court overturned 30 years of history and held that “evergreen clauses” – clauses that extend collective bargaining agreements until a new contract is negotiated – were unlawful and unenforceable if the clause operated to extend a collective bargaining agreement beyond three years. This wreeked havoc in some communities because employers took advantage of the ruling by refusing to arbitrate grievances after a three- year contract expired. In addition, some employers took the position that they were not bound by any of the terms of the contract after three years, despite the fact that the employer had agreed to an evergreen provision.

This problem was corrected by the legislature on November 17thin House 3789-11. As a result of diligent efforts, persistence and lobbying by a broad coalition of public sector unions over the past year, the legislature enacted a bill that reverses the SJC ruling — reaffirming that evergreen clauses are enforceable even if they operate to extend the contract beyond three years. In addition, and again due to the extraordinary efforts of the labor coalition, the legislation contains a retroactivity provision. Section 2 of the new law restores evergreen clauses to any collective bargaining agreement that contained an evergreen provision and had expired after three years under the SJC decision. Evergreen clauses in such agreements are resurrected and enforceable going forward – even as to matters that arose prior to this legislation. So, if you are under a three year contract with an evergreen clause that had expired under the SJC ruling, the contract has been restored and is enforceable until a new contract is negotiated.

There is a narrow exception the retroactivity provision. The law does not apply are “specific matters” that “were pending or adjudicated in a court of competent jurisdiction” at the time that law was passed. There will undoubtedly be litigation about which cases fall under that exception. But the vast majority of matters are back under the umbrella of evergreen clauses. This bill is now awaiting the Governor’s signature.

Read The Bill…

Supreme Judicial Court Hears Arguments in Quinn Bill Case

Sandulli Grace Partner Bryan Decker argued yesterday before the Massachusetts Supreme Judicial Court in the “Quinn bill case.” As previous posts have discussed, Decker represents a group of Boston Police Officers challenging the City of Boston’s reduction of educational benefits to officers in 2009. The case argues that the city cannot cut Quinn bill incentive payments to officers, even where the collective bargaining agreement in place allows for such a cut. Sandulli Grace union client Boston Police Patrolmen’s Association is supporting the officers. Sandulli Grace union client Massachusetts Coalition of Police filed a “friend of the court” brief also in support. The SJC should issue a decision within a few months.

Video of the oral argument has already been archived by Suffolk University Law School. You can view it here.

The decision could impact police collective bargaining statewide. Acknowledging this, the Boston Globe ran a front page story on the case on Monday, the day before the oral argument. You can read Boston Globe Police Beat Reporter Maria Cramer’s story here.

As always, we’ll keep you posted.

Civil Service Suspensions: 5 Days Can Be 8 But Not 16

While, for the Beatles, eight days a week may not have been enough to show they cared, the Appeals Court has said that it is enough for a five-day suspension.

Civil Service law, Mass. Gen. Laws Chapter 31, § 41, allows a police or fire chief to suspend a tenured civil servant “for just cause for a period of five days or less without a hearing prior to such suspension.” [emphasis added]. The statute goes on: “Saturdays, Sundays and legal holidays shall not be counted in the computation of any period of time specified in this section.” The employee is forced to serve the suspension but may (within 48 hours) appeal to the appointing authority for a hearing on whether the chief did indeed have just cause for the punishment. To suspend employees for more than five days or to demote or terminate them, the appointing authority must first hold a hearing before issuing those greater disciplines.

When the Andover fire chief issued a four-day suspension to a Lt. Thornton, he ordered that the four days be served on the lieutenant’s next four scheduled 24-hour shifts, spanning a 16 day period. Not surprisingly, the Civil Service Commission, by a 3-2 vote in an opinion written by Chairman Bowman, had no problem with allowing the chief to take away two weeks’ pay and prevent the lieutenant from working overtime or details for 16 days, all as part of a four-day suspension without a hearing.

This punitive interpretation was first overturned by the Superior Court and then, last week, by the Appeals Court. In Thornton v. Civil Service Commission, Justice Rubin, writing for a 2-1 majority of the three-judge panel, made this Solomonic observation: “Whatever a suspension of ‘a period of five days or less’ is, it is not a suspension under which an employee may not work for sixteen days.”

The Appeals Court decided that the five-day suspension period means five consecutive calendar days, excluding weekends and holidays. A five-day suspension could run from Monday through Friday, Tuesday through the next Monday (remember weekends don’t count), etc. The decision has the practical effect of letting the chief, for the most part, take away a week’s pay and prevent the employee from working overtime/details for the same week. This does raise the question: If weekends and holidays don’t count as part of the suspension period, why should employees also be suspended on those days and prohibited from performing extra work on them?

While the decision is not perfect, it is a reasonable attempt at applying a statute obviously geared to people who work Monday through Friday, nine to five, to the “four and two” and “24 hour” shifts, which did not become prevalent until long after 1978, when the statutory language was written.

One problematic aspect of the Appeals Court decision is language permitting the chief to begin the suspension on a particular day of his/her choosing.  An overreaching chief could, therefore, begin an alleged miscreant’s five-day suspension on Tuesday, October 4. Because of the weekend/holiday exclusion and the October 10 Columbus Day holiday, it could run through Tuesday, October 11.  If the employee were returning to his/her “four-and-two” on the 4th, it could actually cost six days’ pay and, depending on the contract, the holiday pay also.

Suffice it to say that the Appeals Court has reduced a “five-day suspension” from sixteen to, at most, eight days. It’s at least a step in the right direction


Effective July 1, 2012, dispatchers must be trained in the Emergency Medical Dispatch Protocol Reference System (EMDPRS).  EMDPRS is a system that “includes a protocol for emergency medical dispatcher response to calls, including structured caller questioning for patient condition, incident facts, and scene safety, pre-arrival instructions, post-dispatch instructions, selection of appropriate field resources to dispatch (such as first responder, basic life support, and/or advanced life support), and a continuous quality assurance program that measures compliance with the protocol through ongoing random case review of each emergency medical dispatcher.”  560 CMR 5.03.

In other words, if you answer 911 calls, you must be EMD certified.  This new training involves a process that is much more detailed than before.  Dispatchers will have to provide pre-arrival instructions and dispatch life support in compliance with written text of scripts and other processes within a Department-approved EMDPRS.  So, every request for medical assistance will involve the dispatcher following a set of policies and procedures for the safe and effective use of the Department-approved EMDPRS.

Furthermore, under these new regulations, each EMD resource must establish a continuous quality assurance, improvement, and management program that, at a minimum, must include: documentation of the quality assurance case review process utilized to identify EMD compliance with the EMDPRS; written approval of the EMD medical director; ongoing random case review in accordance with the guidelines of the EMDPRS; and regular feedback of performance results to emergency medical dispatchers.  In other words, there is the potential for liability and discipline.

If you are a dispatcher and are (or will be) in negotiations, I would advise that you raise these new regulations at the table when bargaining.  They add significant responsibilities and duties to your job.  Although it is mandated by the State, the Department should recognize the added work you are doing.

If you are not a dispatcher (e.g., a patrol officer) but are being asked to comply with these new certifications, call your union representative to discuss the probability that these new duties could be a change in your working conditions and thus should be bargained.


I had a police officer client in my office a few days ago who insisted that Question 1, which would repeal the Massachusetts state income tax, will definitely pass.  When I heard that, I knew I had to at least write something to try to convince that tiny proportion of the population that listens to what I say to vote against this.

            Why is Question 1 so bad?  The facts are well-presented by the Massachusetts AFL-CIO in its aptly titled “Times Are Hard Enough. Let’s Not Make Them Worse”.  The facts include: 

  • The income tax proposal will cost the Commonwealth more than $12 billion in revenues, about 40% of the state budget.
  • This is a binding proposal that will become law effective January 1, 2009
  • It will have dire consequences for our communities, putting:
    • Education at risk with:
      • Larger class sizes
      • Fewer after school programs
      • More school closings
    • Health care at risk for:
      • Seniors
      • Working families
      • People with disabilities
    • Public safety at risk with:
      • Fewer emergency response personnel
      • Longer 911 wait times
      • Fewer police officers and firefighters
    • Our infrastructure at risk with:
      • Unsafe bridges
      • Broken roads and more potholes
      • Cuts in service to public transportation
  • Put our fragile economy and job market at even greater risk

            For those of you who believe that eliminating $12 billion from the budget will get rid of the supposedly inefficient state workers, consider that the entire state payroll is about $7 billion.  That leaves $5 billion left to cut with no more state workers to lay off!

            Where does the $28 billion state budget go if not to the state workforce?  It goes to places like nursing homes to care for elderly and disabled, to hospitals to pay half the cost (the Federal Government pays the other half) of the care for those on Medicaid (many of whom are elderly), to contractors to build roads and bridges and schools, to local aid to cities and towns, and to pension funds for retirees.

            There is a common misperception in this state, fueled by the ideologues on talk radio, that we pay more taxes than the rest of the country.  Actually, the state and local tax burden in Massachusetts is 9.5% of income, slightly below the 9.7% national average.  This places us 23rd nationally among the states.  (If you don’t believe me, check out the web site of the nonpartisan Tax Policy Institute).

            So while there are many good factual reasons not to vote for this, it is disturbing to me that something like this is even on the ballot.  We used to be a country where people banded together to try to make everyone’s lives better.  My grandparents’ generation agreed to tax themselves to have a strong economy and get out of the Great Depression.  My parents’ generation agreed to pay taxes for a strong military to defeat the Fascists in World War II.  Rich people used to pay a lot of taxes in the U.S.  In the 1940’s and 1950’s, the highest wage earners paid over 80% on income over $200,000.  As recently as the 1970’s high income earners paid 70% or more on what they earned over $200,000.  [For a chart on tax rates, see http://www.truthandpolitics.org/top-rates.php#fn-1].

            Since the Reagan presidency and its mantra that “government is the problem” and “the less government, the better,” taxes have become the third rail of American politics.  This has worked out great for the very wealthy, who have seen their tax rates decline to less than half what they once were.  For some super-rich, who make billions of dollars running hedge funds, all of their income is taxed as capital gains at the 15% federal rate.  While their tax rates have been reduced, those earning the most money have seen their incomes soar.  In 2006, Chief Executive Officers of large companies averaged over $10 million in total compensation, 364 times that of the average worker.  As recently as 1980, those CEO’s made 42 times what the average worker made.

            So, while the rich have gotten richer and paid lower tax rates, what has happened to the rest of society?  We have, at least for the past 10 years, basically tread water.  But while our wages have been flat, our expenses have increased: medical, housing, transportation, education.  Caught in this squeeze, it is no wonder that some of us jump at an opportunity to stop paying state income tax.  But eliminating state income tax is not the solution; it will only reduce services that we all need and make things worse.  What is really needed is an overhaul of the tax policy to put more burden on the rich and an increase in the real wages (adjusted for inflation) of working people.  Hopefully, a reform of our labor laws can help with the wage problem.  But that’s for another article.

            Bottom Line: VOTE NO ON QUESTION 1!