Tag Archives: public

This is what the Republicans call a “Moderate?”

I’m not sure if you are aware, but the Republican National Committee is actually voluntarily meeting in Boston this week.  I’m a little surprised that they are here, I’m sure that they’re worried that just being in the Bay State might lead them to accidentally enter into a gay marriage.  But here they are, and it’s led to some amusing news coverage of the “struggle” within the Grand Old Party.

It seems that ever since last November, the GOP has been soul searching about how the heck it can ever hope to win a national election.  Notwithstanding the fact that the GOP kicked the snot out of the Democrats in 2010 and look to have a lock on the House and a decent shot of regaining the Senate in 2014, no one can figure out how a candidate can win both the Republican nomination and then go on to win a national election.  Remember when all of the candidates for the Republican nomination said that they firmly reject evolution?  That plays great in the primaries, not so great in the regular election.

So, the big question that the media is asking the Republicans in Boston is, “can a “moderate” candidate win the GOP election?”  And the “moderate” they keep mentioning is Chris Christie, the corpulent New Jersey Governor.  Christie made a visit up to Boston to speak to the assembled CEO’s, right-wing Christian fundamentalists, and Ron and Rand Paul libertarians.  Christie told the GOP faithful that the party doesn’t need to “sacrifice the base” to win.  In other words, the GOP doesn’t need to budge on civil rights, women’s rights, workers’ rights, immigration, or any of the other areas where the positions they hold are in the minority.  So, how can the GOP win if it isn’t going to actually support positions in line with the majority of Americans?  According to Christie its simple – JUST SCAPEGOAT PUBLIC EMPLOYEES!

An article in today’s Wall Street Journal describes Christie’s plan of divide and conquer. (“Christie Lays Out His Plan for GOP Revival,” 8/16/2013, p. A5).  The Article states:

“You don’t have to sacrifice your base voters to win Latino votes,” [Christie] said, according to a recording of the closed-door speech reviewed by The Wall Street Journal.  “You don’t have to sacrifice your base voters to win a share of the African-American vote.”

He contrasted his long-running feuds with the state’s public-sector unions with his friendliness toward the private-sector unions, noting that he had won the endorsement of 24 building-trade unions.

“We have an opportunity as a party to drive a wedge in the union movement,” he said.  “And the laboratory where that is happening right now is in my state.”

Now I’m not sure I really understand how systematically working to destroy public sector workers is going to make Latinos and African-Americans more likely to vote for a Republican.  But put that aside for a minute to ponder that Chris Christie is what passes for “moderate” these days.  Yikes.

Massachusetts Public Employee Benefit Changes Under Pension Reform

On November 18, 2011 Governor Deval Patrick signed Chapter 176 of the Acts of 2011, “An Act Providing for Pension Reform and Benefit Modernization.” This is the third pension reform measure passed in the last three years, and significantly changes the benefit structure for all newly hired Massachusetts public employees. In addition, the law increases benefits for certain retired members and survivors.  The law also changes certain rules affecting current employees. Below is a summary of the significant modifications under the new law.

Changes Affecting Current Active Public Employees

  • Anti-Salary Spiking: The new law limits the annual increase in pensionable earnings Individuals who retire on or after 4/2/2012.  Increases of more than 10% in salary will not be included in calculating the average pensionable earnings over the previous two year prior to retirement. This provision does not apply to bona fide job changes, payments for additional services that are otherwise eligible for inclusion, and other exempted payments.
  • Buyback Increase: Interest charged on buybacks and certain other service purchases increases if the employee does not make the payment within the first year of membership or within one year from 4/2/2012.

Changes Affecting Current Retirees:

  • Cost of Living Increases: Future COLA increases for retirees will be based on the first $13,000 instead of $12,000.
  • Minimum Pension Benefit: Effective 4/2/2012, the minimum pension for members who retired with at least 25 years of creditable service is increased from $10,000/year to $15,000/year.
  • Surviving Spouse: Effective 4/2/2012, the minimum benefit paid to the surviving spouse of a member who dies while in service increases from $250/month to $500/month.
  • Post-Retirement Earnings: Effective 4/2/2012, members retired for at least one year may earn an additional $15,000/year in post-retirement earnings.

Changes Affecting New Public Employees Hired on or after April 2, 2012:[i]

  • Minimum Retirement Age: The minimum retirement age is raised from 55 to 60 for Groups 1 and 2
  • Group 4 Retirement Age: The minimum retirement is raised from 45 to 50 for Group 4
  • Age Factors: The new law reduces the age factors in the retirement formula.
  • Average Salary for Calculation of Pension Benefit: The salary average period used in the retirement benefit calculation formula is lengthened from 3 years to 5 years.
  • Contribution Rate: Reduces the contribution rate by 3% (e.g., from 11% to 8%) once a member has 30 years of creditable service.


[i] These changes also affect employees who re-enroll in the retirement system (after taking a refund)  after April 2, 2012

Legislatures Restores Benefit For Disabled Public Employees

It is an unfortunate reality of the modern workplace that public employees can and do become permanently disabled simply by doing their job. Police officers and firefighters, in particular, who respond to the call of duty can suddenly find themselves unable to work a job that has been a lifelong passion.

Thankfully, Massachusetts law recognizes the great sacrifice made by these public employees. Chapter 32, Section 7 of Massachusetts General Laws provides Accidental Disability Retirement for persons who sustain a career-ending injury in their work. This statutory safety net provides 72 percent of an employee’s regular compensation. For years, the retirement allowance was based upon compensation earned by the disabled employee on the date of injury or the compensation earned during the 12 months prior to retirement. (Contrary to myths fueled by the media, overtime and traffic details are not considered part of compensation and therefore are excluded from public employee retirement calculations).

Last year, the Massachusetts legislature reformed the public employee disability retirement laws. This reform was, in part, an effort to curb the practice of disabled employees being temporarily promoted on the date of injury. The reform, however, eliminated the option of calculating disability retirement allowance on the compensation for 12 months prior to retirement. The unintended consequence of this change was that disability retirees faced a dramatic reduction in their pay because of the time that can elapse between the date of injury and the date of retirement (Delay can be caused by an employee’s efforts to return to work or exhaust all medical improvement options, or by bureaucratic delay involved in processing a disability retirement application).

Sandulli Grace, PC, was very vocal in its criticisms of this aspect of the law. Thankfully, the Massachusetts legislature recognized the problem and restored the longstanding option of using last 12 months of compensation for the basis of calculating retirement allowance. (The base compensation refers to the employee’s permanent position and not any temporary position the employee may have had at the time of retirement). This amendment is retroactive to July 1, 2009. Disabled public employees who retired after July 1, 2009 should contact their retirement board to confirm that you are receiving the intended benefits of this change.

A memo explaining the new change by the Public Employee Retirement Administration Commission is attached.

Download PERAC memo

SJC Gives Public Employers New Tool For Blocking Disability Retirements

In a recent decision, the Massachusetts Supreme Judicial Court has allowed a public employer to block an injured employee’s attempt to retire on disability by modifying his work duties so that they no longer resemble his original core job duties.  The decision, Foresta v. Contributory Retirement Appeal Board, was issued on April 24, 2009 as 453 Mass. 669 and can be found here . Sandulli Grace, PC, filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc. and the Massachusetts Coalition of Police, in support of the disability employee.

 Foresta involves an employee of the Mass. Turnpike Authority who sought a disability retirement after two job-related lower back injuries.  His job as safety inspector primarily involved driving around the state inspecting fire extinguishers.  A small portion of his job involved teaching courses and doing paperwork.  After Foresta suffered two on the job injuries, his doctors concluded that he was disabled from lifting the fire extinguishers, or driving for significant periods of time.  In other words, the work injuries prevented him from performing his essential job duties.  As a result of his disability, the Authority gave the fire extinguisher duties to another employee and assigned clerical/desk duties to Foresta, which used to be a minute function of his job.  Although a panel of doctors agreed that Foresta could not perform his core duties, it concluded that he could perform the duties of his new job. Foresta still sought a disability retirement, arguing that he was entitled to it because his job injuries prevented him from performing the essential functions of the job as it existed at the time of his injuries.

 The SJC disagreed with Foresta and instead ruled in favor of the Massachusetts Turnpike Authority Employees’ Retirement Board’s decision to deny the accidental disability retirement application.  The SJC found that the Board’s denial was consistent with the history and purpose of the disability retirement laws.  In particular, those laws encourage employers to make accommodations for injured employees and provide rehabilitation for them to keep them on the job, which allegedly limits the Commonwealth’s liability and prevents possible abuses of the system.

 Foresta argued that anti-discrimination laws such as the Americans with Disabilities Act only require employers to make reasonable accommodations, and changing the essential duties of the job is unreasonable.  The SJC ruled instead that the employer may make accommodations that go beyond its obligations under anti-discrimination law, as the Turnpike Authority did here.  Therefore, the SJC held, Foresta was not disabled if he could perform the essential duties of the job after the Turnpike Authority modified it into a desk job.  The bottom line of the SJC’s distinction between an employer’s rights and responsibilities under ADA and disability retirement law is that the public employer gets the final word on the employee’s employment– a public employer can deny a request to change the essential functions of the job when sought by an employee or applicant without violating the ADA, but the employer may force an injured employee to change the essential duties of his or her job in order to prevent him from leaving work on a disability retirement. 

 The SJC did place some limits on the changes that an employer may make to accommodate an injured employee.  “The essential duties of the job as modified must be similar in responsibility and purpose to those performed by the employee at the time of the injury, and must result in no loss of pay or other benefits,” the Court stated.  Presumably, then, there must be some continuity between the original job and the modified position in terms of duties performed.

 The SJC’s decision leaves a number of questions unanswered, notably, How will employers and retirement boards determine which duties are similar in responsibility and purpose to those the employee performed at the time of the injury?  What if other employees with the same job title performed the duties but the injured employee did not?   Does this case extend to light duty assignments for police and fire fighters, whose essential functions involve physically demanding crime and fire prevention/suppression?  Unfortunately, further litigation may be required to answer these and other questions that arise from the SJC’s vague language.  Only time will tell how severely public safety employees will be affected.  But there is no question that the right has been restricted by the Foresta decision: if a public employer wants to block an employee from getting a disability retirement – even where the disability results from the employee’s public service – the employer now has one more weapon in its arsenal.



Public Employee’s Stress, Anxiety Caused By Negative Publicity and Prisoner Harassment Is Covered Under Massachusetts Workers’ Compensation Act, SJC Rules.

Recently, the Supreme Judicial Court ruled in Cosmo Bisazza’s Case, SJC-10183 (Nov. 20, 2008), that mental and emotional injuries are analyzed under the same standard as physical injuries under the Workers’ Compensation Act.  An employee is eligible for workers’ compensation if the employee “receives a personal injury arising out of and in the course of his employment.”  G. L. c. 152, §26.  The legislation defines “personal injury” to include an emotional or mental injury if “the predominant contributing cause of such disability is an event or series of events occurring within any employment.”  G. L. c. 152, §1.  The SJC held that disabling stress and anxiety caused by negative media coverage and prisoner harassment may be covered by the Workers’ Compensation Act.

In this case, a correction officer suffered post-traumatic stress disorder (“PTSD”) and stopped working after he was falsely accused by inmates and the media of abusing inmates including convicted child molester and former priest John Geoghan (Geoghan was later murdered by another prisoner).  Initial media coverage in the wake of Geoghan’s murder included accusations that unnamed officers harassed Geoghan.  Thereafter, prisoners taunted the officer and threatened to “get” him and spread lies to the media about his treatment of Geoghan.  Newspapers subsequently reported prisoner allegations that the officer tortured Geoghan and placed excrement in his cell.  Though the officer ultimately was transferred and cleared of all misconduct, a psychiatrist concluded that he suffered from PTSD as a result of work-related trauma, including inmate harassment and negative publicity.  The psychiatrist further concluded that the misleading press coverage was more at fault for the PTSD than the actual prisoner harassment.  A board of the Division of Industrial Accidents, which is the state agency that handles disputes under the Workers’ Compensation Act, granted benefits to the officer.

On appeal, the SJC rejected the employer’s argument that mental and emotional injuries require a higher standard of “work-relatedness” than physical injuries.  The SJC also upheld the DIA’s conclusion that the officer’s injuries were sufficiently work related. 

The Court’s decision in Cosmo Bisazza’s Case contains at least two interesting aspects.  First, the Court declined to rule on whether PTSD caused only by negative publicity related to job performance qualifies for workers’ compensation.  While the Court agreed that the negative press was the predominant cause of the PTSD, it also noted that prior to the media coverage, the prisoners harassed the officer and threatened to spread lies about his treatment of Geoghan to the media.  The negative publicity, therefore the SJC concluded, was an extension of the inmates’ campaign of work-place harassment against the officer, rather than an independent phenomenon. 

Second, the Court appeared to distance itself from the one of the more repugnant Workers’ Compensation decisions in the past.  In Collier’s Case, 331 Mass. 374 (1954), the Court ruled that a waitress was ineligible for benefits after she was beaten by a male customer after work, after the two had argued during her earlier shift.  The SJC stated in a footnote, “Although we need not decide the point, it is questionable whether the court would rule as it did in Collier’s Case, 331 Mass. 374 (1954), if those same facts were before it today.”