Liz Valerio Receives Life Membership in the MASC

Valerio Dominello and Hillman congratulates Liz Valerio who received Life Membership in the Massachusetts Association of School Committees (MASC) on November 8, 2019.  Liz was recognized for her involvement in and commitment to MASC, as well as her advocacy for the children of Massachusetts through her years of assistance to MASC and her membership on the Wrentham School Committee.

Liz Valerio to Present at COSCAP Fall Conference

On November 8, 2019 Liz Valerio will present at the Council of School Committee Administrative Personnel’s 2019 fall conference at the Resort and Conference Center at Hyannis.  Liz will be presenting on personnel files and “everything you want to know about school committee meetings.”

Liz Valerio and Elizabeth Paris to Present at MMHR Annual Labor Relations Seminar

On November 1, 2019 Liz Valerio and Elizabeth Paris will present at the Massachusetts Municipal Human Resources Association’s annual labor relations seminar at the Devens Common Center in Devens, MA. Liz and Elizabeth will be presenting on 2019’s major labor law cases.

Four VDH Attorneys Named 2019 Massachusetts Super Lawyers and Rising Stars

Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2019 and Nicholas J. Dominello and Jennifer F. King have been named Massachusetts Rising StarsSuper Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  This selection process includes independent research, peer nominations and peer evaluations.  Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.

Ethics Commission Disposition Addresses Tour Company Rewards to Teachers for Organizing School-Sponsored Student Travel

There is a widespread practice in Massachusetts in which teachers organize school-sponsored trips overseas for students through tour companies such as EF Tours. These companies offer rewards programs in which teachers who organize tours through those companies can earn stipends and points towards products and free travel for themselves. In a disposition agreement recently issued on the Massachusetts Ethics Commission has concluded that this rewards program violates the Conflict of Interest Law, G.L. c. 268A, in several respects.

In Disposition Agreement in the Matter of Stephanie Viens, Docket No. 19-0009 (September 25, 2019), a teacher for the South Hadley Public Schools had organized several school-sponsored trips through EF Tours in her capacity as Culture Club Advisor. Over a 5-year period the teacher earned $5,530 in stipends and 4,516 travel points from the EF Tours rewards program for organizing several school trips to Europe, including recruiting students, parents, and chaperones. She redeemed the travel points for airline tickets and a European vacation.

The Commission concluded that the teacher had received gifts in excess of the allowed $50 ceiling for performing official duties in connection with organizing these trips, in violation of G.L. c. 268A, § 3(b). It also concluded that she had received compensation from EF Tours for performing her official duties in a matter in which the school district had a direct and substantial interest, in violation of G.L. c. 268A, § 17(a). Finally, the Commission determined that the teacher had participated in a particular matter in which she had a financial interest, in violation of G.L. c. 268A, § 19.

The Commission agreed that the matter should be resolved by the teacher paying a civil penalty of $7,000.

We recommend that school districts advise faculty who organize these trips through EF Tours or through similar student travel companies that they must opt out of any rewards program in connection with trips they are involved with in order to avoid a violation of chapter 268A. We also recommend that districts advise teachers against redeeming points and rewards they already have earned for the same reason.

If you have questions or concerns about this issue, or about school law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Judicial Court Sustains Decision Regarding Managerial Authority

On October 7, 2019, the Supreme Judicial Court addressed the inherent managerial authority of a public employer to take unilateral employment actions by examining the distinction between “broad” and “narrow” statutory authority in Board of Higher Education v. Commonwealth Employment Relations Board, SJC-12621. Specifically, the SJC held that a statute granting the state employer the right to “appoint, transfer, dismiss, promote and award tenure to all personnel” involved a broad statutory authority, and the employer was therefore required to bargain over the violation of a hiring cap in the parties’ CBA.

In this case, the Board of Higher Education (“BHE”) is the statutory employer of state college faculty members under M.G.L. c. 150E. The BHE and the faculty members’ union are parties to a CBA in which the parties had agreed to a “part-time” faculty hiring cap.  Despite this provision the state colleges continued to ignore it by hiring part-time faculty members in excess of the agreed-upon cap. The union filed a charge of prohibited practice with the Department of Labor Relations (“DLR”), arguing that the BHE failed to bargain in good faith and repudiated the provision. The BHE contended in response that this provision infringed on its nondelegable power under M.G.L. c. 15A, §22 to “appoint, transfer, dismiss, promote and award tenure to all personnel…” The DLR ruled for the union and the BHE appealed.

The SJC, citing City of Lynn v. Labor Relations Commission, 43 Mass. App. Ct. 172 (1997), affirmed that the scope of a public employer’s nondelegable authority depends on “the explicitness of the statutory authorization under which [that] employer acts.” In City of Lynn, the Appeals Court had determined the scope of an employer’s managerial authority under M.G.L. c. 150E, §7(d) and held that public employers may act in two ways: under broad statutory authority or under narrow statutory authority.

When a public employer acts under broad, or general, statutory authority, the court examines “whether the ingredient of public policy in the issue subject to dispute is so comparatively heavy that collective bargaining, and even voluntary arbitration, on the subject is, as a matter of law, to be denied effect.” Unless public policy precludes bargaining. the employer’s decision is subject to a collective bargaining requirement.

On the other hand, if the employer acts under narrow statutory authority, or “under authority of a statute or law authorizing the employer to perform a specific, narrow function or, alternatively, acts with reference to a statute specific in purpose that would be undermined if the employer’s freedom of action were compromised by the collective bargaining process,” the court will not enforce a conflicting provision in the CBA. Rather, the statute or law takes precedence.

In the BHE case the SJC held that the statutory grant of management authority was broad and general as “nothing in the language of [the CBA] explicitly prohibits the BHE from bargaining over the hiring of part-time faculty.” Therefore, the SJC held that the CBA provision was enforceable as it does not directly conflict with the statutory grant of authority.

As always, application of this ruling will depend on the specific facts of the situation and the character of the specific authority being exercised. If you have any questions or concerns about this decision, or labor law in general, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Law Extending Union Rights Goes Into Effect

On September 18, 2019, the Massachusetts Senate passed over Governor Baker’s veto of House Bill 3854, “An Act Relative To Collective Bargaining Dues”.  The bill was drafted in response to the U.S. Supreme Court’s decision in Janus v. AFSCME as an effort to strengthen union presence in the workplace.  The Legislature inserted emergency language in the Act’s introductory paragraph, making the Act immediately effective.

Specifically, the Law does the following:

  • Increase the amount of employee information that can be made available to employee organizations;
  • Permit employee organizations to require non-members to pay costs and fees, in advance, associated with arbitrations as well as relieve the organization from the responsibility of representation if the non-member fails to pay;
  • Permit employee organizations to, in addition to negotiating and enforcing contracts, provide employees with legal, economic or job-related services or benefits outside of the CBA;
  • Increase employee organization access to employees by allowing them to:
  • Meet with individual employees on work premises during the work day to investigate and discuss grievances, complaints and other workplace issues;
  • Conduct worksite meetings during breaks and before and after the workday to discuss workplace issues, negotiations, CBAs, and other matters of representation;
  • Meet with newly hired employees (without loss of pay to the employee) for a minimum of thirty (30) minutes within ten (10) days of hire;
  • Receive notice from school districts within ten (10) days of a hiring decision and that employee’s contact information;
  • Use a public employer’s e-mail system to communicate with bargaining unit members about union-related matters, provided the use does not create an unreasonable burden on network capacity or system administration;
  • Use government buildings and other facilities to conduct union meetings regarding negotiations, CBAs, grievances, and other workplace issues provided such use does not interfere with governmental operations, and allowing them to be charged for the maintenance, security and use of said building;
  • Consider an employer’s failure to comply with the above means of access to employees as a violation of G.L. c. 150E, § 10(a)(5);
  • Where payroll deductions are adopted by a County, City or Town, authorizations for payroll deductions of union dues may be irrevocable for a period of up to one (1) year.
  • Repeal laws requiring agency services fees.

If you have questions or concerns about this legislation, or labor law in general, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Attorney Liz Valerio to Present at MMMA Monthly Meeting

Attorney Liz Valerio will present at the Massachusetts Municipal Management Association’s (MMMA) monthly meeting on September 19, 2019.  Liz will provide a labor law update.

https://www.mma.org/event/management-association-monthly-meeting-3/

Reminder – Massachusetts Paid Family and Medical Leave Law Going Into Effect

Several components of the Paid Family and Medical Leave (“PFML”) law[1] are going into effect beginning the end of this month.  As a reminder, employers must follow the timeline below to comply with the law:

  • September 30, 2019 – Notify all covered individuals of their rights and obligations under PFML by posting the “Notice of Benefits Available Under M.G.L. Chapter 175M”. We have attached a copy of the required posting to this reminder.  Employers must also obtain written acknowledgement (paper or electronic) from each employee indicating that the employee has received notice.
  • October 1, 2019 – Begin withholding PFML contributions from each employee’s qualifying earnings. Employers will be responsible for remitting employee and (if applicable) employer contributions for the quarter (October 1 to December 31) through MassTaxConnect by January 31, 2020.
  • December 20, 2019 – No later than this date, employers that offer paid leave benefits that are at least as generous as those required under the PFML law may apply to the Department for an exemption from making contributions.

If you have questions or concerns about the PFML law, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

[1] If any part of your workforce is unionized, you may have a bargaining obligation over the new PFML law.  Please contact a VDH attorney if you have any unionized employees to discuss your potential bargaining obligation.

Massachusetts Delays and Amends Paid Family and Medical Leave Law

Last week, the legislature and newly established Department of Family and Medical Leave made changes to the Paid Family and Medical Leave (“PFML”) law[1].  These changes delay many relevant dates under the PFML law, and also make some substantive changes.

The amendments include the following:

  • The start date for required PFML contributions is now October 1, 2019.  On that date, employers must begin withholding PFML contributions from employee qualifying earnings.  Employers will be responsible for remitting employee and (if applicable) employer contributions for the October 1 to December 31 quarter through MassTaxConnect by January 31, 2020.
  • Employers now have until September 30, 2019, to notify all covered individuals of their rights and obligations under PFML.  The required notices are available on the Department of Family and Medical Leave website.
  • Employers that offer paid leave benefits that are at least as generous as those required under the PFML law may apply to the Department for an exemption from making contributions.  Employers will now have until December 20, 2019, to apply for an exemption that will excuse them from the obligation to remit contributions for the full period commencing with the October 1 start date.
  • The contribution rate has been raised from 0.63% to 0.75%.  This now changes the contribution splits – of the 0.75%, 0.62% will be for the medical leave contribution, and 0.13% will be for the family leave contribution.
    • For employers with 25 or more employees:
      • The employer may deduct up to 40% of the 0.62% medical leave contribution from the employee, and must contribute at least 60% of the 0.62% medical leave contribution. The employer may deduct a lower percentage of the medical leave contribution from the employee, but is still responsible for remitting the 0.62% medical leave contribution.
      • The employer may deduct the entire 0.13% family leave contribution from the employee, and is not required to contribute to the family leave contribution.  The employer may deduct a lower percentage of the family leave contribution from the employee, but is still responsible for remitting the 0.13% family leave contribution.
    • For employers with less than 25 employees:
      • The employer may deduct up to 40% of the 0.62% medical leave contribution from the employee, and is not required to contribute to the medical leave contribution. The employer may deduct a lower percentage of the medical leave contribution from the employee, but is still responsible for remitting 40% of the 0.62% medical leave contribution.
      • The employer may deduct the entire 0.13% family leave contribution from the employee, and is not required to contribute to the family leave contribution. The employer may deduct a lower percentage of the family leave contribution from the employee, but is still responsible for remitting the 0.13% family leave contribution.

The Department has created visual breakdowns of the new contributions rates:

Employers with 25 or more employees:

Employers with fewer than 25 employees:

If you have questions or concerns about the PFML law, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

 

[1] If any part of your workforce is unionized, you may have a bargaining obligation over the new PFML law.  Please contact a VDH attorney if you have any unionized employees to discuss your potential bargaining obligation.