In July 2018, the Massachusetts Legislature passed “An Act Protecting Youth from the Health Risks of Tobacco and Nicotine Addiction” to reduce youth access and use of tobacco and nicotine products, including vaporizers. The legislation impacts individuals, businesses, government agencies, as well as educational institutions. The impacts to educational institutions, as outlined below, go into effect on December 31, 2018.

The Act changes the language of G.L. c. 71, § 2A which prohibits student tobacco use (not possession or sale) on school grounds. Our public school clients are encouraged to carefully review the law’s new definition of “tobacco product,” which now includes:

A product containing, made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, electronic cigarettes, electronic cigars, electronic pipes, electronic nicotine delivery systems or any other similar products that rely on vaporization or aerosolization; provided, however, that “tobacco product” shall also include any component, part or accessory of a tobacco product; and provided further, that “tobacco product” shall not include a product that has been approved by the United States Food and Drug Administration for the sale of or use as a tobacco cessation product and is marketed and sold exclusively for the approved purpose.

The new definition encompasses vaping and electronic tobacco products, and therefore prohibits student use of those products on school grounds. It also includes “any component, part or accessory of a tobacco product,” meaning that students may not use tobacco products, such as vaporizers, even if they do not actually contain tobacco, including if they are empty. Additionally, while many vaping product manufacturers hold themselves out as smoking cessation devices, there are no vaping products that are FDA approved smoking cessation devices that would be excluded from the definition.

The law continues to require school committees to maintain a policy regarding student tobacco violations. This change in the law presents an opportunity for school committees to review and revise their policies and student handbooks to include the prohibition of vaping products. Our team can assist in reviewing and revising these policies.

If you have any questions on the changes to this law or how the changes may impact you, please contact any of our attorneys.

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

In what appears to be the first reported decision by an appellate court in the country, on October 18, 2018 the Massachusetts Appeals Court has ruled that a student did not “enter the military” or, therefore, become emancipated for purposes of  child support when he obtained an Army ROTC scholarship. VDH attorney John Foskett represented the mother in Bobblis v. Costa, 94  Mass.App.Ct. 264 (2018). Attorney Foskett successfully argued that applicable federal statutes and the fact that a ROTC scholarship recipient remains a full time student at his or her college without governmental control over the student’s daily activities differentiate the student’s status from that of an enlistee or of a cadet/midshipman at one of the military academies. The court therefore rejected the father’s claim for retroactive reimbursement of child support payments.

On October 3, 2018, the Supreme Judicial Court sustained an arbitration award reinstating a police officer who had filed a police report that the arbitrator found was “intentionally misleading” but not “intentionally false” and that did not result in a wrongful arrest, a wrongful prosecution, or a deprivation of civil rights. The decision, City of Pittsfield v. Local 447 International Brotherhood of Police Officers (SJC No. 12450) shows how closely courts will scrutinize whether an arbitration award violates Massachusetts public policy where the award orders the reinstatement of a police officer who has violated the requirements of truthfulness in performing his or her duties.

The facts are as follows: A City police officer responded to a larceny report at a local supermarket, arrested the suspect; and placed her in the back of the cruiser.  The supermarket security staff then asked to photograph the suspect and the officer complied, removing the suspect from the cruiser and placing her on the ground.  Later, in his report the officer claimed the suspect was thrashing in the cruiser and he removed the suspect “for her safety.”  After the City investigated and found no safety concerns, it terminated the officer for conduct unbecoming an officer, untruthfulness and falsifying records by claiming he removed the suspect “for her safety.”

The officer then followed the grievance and arbitration process and the arbitrator found that by claiming to have removed the suspect “for her safety” the officer’s statement was “untrue, intentionally misleading, and cause for discipline, but less than intentionally false.”  Consequently, the arbitrator found no just cause to terminate the officer and reinstated his employment, ordering instead a three-day suspension.  The City appealed, arguing that the reinstatement of a police officer who engaged in this conduct violates public policy, but the Superior Court refused to vacate; the City appealed that ruling; and the Supreme Judicial Court granted its application for direct review.

Recognizing the strong Massachusetts policy which favors arbitration of employment disputes, the court focused on the “rare circumstances” for vacating an award under G.L. c. 150C, § 11 and particularly on that urged by the City – that the award of reinstatement itself violates strong public policy regarding the need for police officers to be truthful.

The court agreed that prior decisions recognize a public policy that “supports terminating police officers for lying…” The court emphasized, however, that the inquiry is not whether the employee’s behavior violates public policy, but, rather, whether the award itself does so.  The court found that this case differed from those which have vacated awards because here an ambiguity existed, in that the arbitrator found the officer’s statement to be “knowingly inaccurate” and “intentionally misleading” but not necessarily “false.”  This finding, the court ruled, was a “conclusion that a phrase in [the officer’s] report was no more than misleading” and that an award reinstating an who officer submitted a misleading statement did not necessarily violate public policy.  Accordingly, the court affirmed the trial court’s refusal to vacate the award.

The court issued two important caveats. First, it stated that had the officer’s conduct violated G.L. c. 268, § 13B which makes it a crime for anyone to wilfully mislead a judge, prosecutor, or police officer with the intent to impede or interfere, with a criminal investigation or any legal proceeding or do so with “reckless disregard,” the public policy exception would have required that the award be vacated.  Because the arbitrator found that the officer’s statement was made on his own behalf to avoid discipline and not  to influence the suspect’s criminal case, there could be no violation of § 13B.  Second, the court also addressed the fact that the county District Attorney’s office had advised that it would no longer use the officer to testify in any cases based on this incident.  The court found this fact “troubling.”  Because this evidence was not available at the time of termination and was not presented in the arbitration, it could not be used to vacate the award.  The court expressly stated, however, that the City was not barred from “pursuing any additional appropriate discipline” based on this letter “or any other newly acquired information.”

Finally, the court made clear that its ruling “does nothing to limit the ability of police chiefs to terminate officers for lying where the arbitrator agrees that such conduct occurred…[or] change the public policy exceptions that bars the reinstatement of officers…whose lies have restricted other’s liberty.” If, the court stated, “a police chief decides to terminate an officer in circumstances in which the officer’s false statements violated G. L. c. 268, § 6A or 13B, or which otherwise resulted in an unjustified arrest or prosecution, or in a deprivation of liberty or denial of civil rights, an arbitration award finding no just cause for such a dismissal and reinstating the officer would violate public policy.”

While on its face this decision might seem to unduly hamper police chiefs in disciplining untruthful police officers, the resulting limitation actually appears to be narrow. If you have any questions regarding the content of this update, or any other questions regarding labor or employment law generally, please contact us.

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

In Tortolano v. Lemuel Shattuck Hospital, No. 17-P-631 (2018), the Appeals Court has reiterated that employees covered by a collective bargaining agreement (“CBA”) and its respective grievance procedure must exhaust that procedure before bringing a breach of contract claim.  Additionally, the Appeals Court held employees challenging overtime wages pursuant to M.G.L. c. 149, § 30B have no private right of action to bring a claim.

The plaintiff, a physician’s assistant at Lemuel Shattuck Hospital (“Hospital”), was a State employee and member of the local Union. The CBA between the State and the Union entitled the plaintiff to overtime pay for time spent “on call” while at home.  In the fall of 2014, plaintiff’s Union representative filed a grievance against the hospital for failure to pay for “on call” overtime.  The Hospital did not respond to the grievance, and plaintiff nor her Union representative took any further action.  Plaintiff then filed a complaint with the Attorney General alleging nonpayment of wages and overtime pay violations.  In a letter to plaintiff, the Attorney General’s office declined to take any enforcement action on the complaint, but advised plaintiff that a private suit would be proper, and that there were “private right[s] of action for employees who believe they are victims of certain violations of the state wage laws.”

The plaintiff then filed a lawsuit in Superior Court against the Hospital for several wage violations including M.G.L. c. 149, § 30B, and breach of contract. Plaintiff sought overtime wages pursuant to § 30B, and argued that the Hospital breached the CBA by ignoring her grievance.  The Hospital, in its motions to dismiss, argued that plaintiff’s breach of contract claim must be dismissed for failure to exhaust the grievance procedure in the parties’ CBA, and the overtime wage claim under § 30B must be dismissed where the statute tenders no private right of action.  The Superior Court agreed, granting the Hospital’s motions to dismiss and giving rise for plaintiff’s appeal.

In addressing plaintiff’s breach of contract claim, the Appeals Court relied on established law that where a CBA includes a grievance procedure, failure to pursue that procedure bars suit against the employer. Here, the grievance procedure included a provision that if the Hospital “exceeds any time limits for responding, the employee or the union may assume that the grievance has been denied and may invoke the next step of the procedure…”  Therefore, the Appeals Court concluded, when the Hospital did not respond to the grievance in the prescribed time period, the grievance was deemed denied, permitting either plaintiff or the union to move the grievance to the next step, which they failed to do.  The Appeals Court stated further that plaintiff could have progressed her grievance without the Union’s assistance, and by failing to do so, she did not exhaust the grievance procedure.  Consequently, the Appeals Court denied plaintiff’s breach of contract claim.

The Appeals Court then addressed plaintiff’s overtime wage claim pursuant to § 30B. There is no express private right of action within the statute, so the Appeals Court evaluated whether to infer such a right.  In looking at other provisions of c. 149, several provided express private rights of action but none with respect to § 30B.  The Appeals Court thus reasoned that “the many express private rights of action in c. 149 demonstrate that the Legislature knows how to confer a private right of action when it so intends, and the c. 149 provisions are a strong indication that no further private rights of action should be inferred.”  Accordingly, the Appeals Court refused to infer a private right of action as to plaintiff’s § 30B overtime wage claim.  The plaintiff additionally argued that where the Attorney General has authority to enforce a § 30B claim, the Attorney General’s letter to plaintiff passed on enforcement power to her.  The Appeals Court refused to accept this argument where “the Attorney General cannot create an alternative enforcement mechanism by unilaterally conferring…a private right of action on an individual.”

This decision serves as an important reminder for employers to be familiar with its obligations under collectively bargaining grievance procedures. Additionally, employers should take care to properly pay wages due their employees.

If you have any questions regarding the content of this update, or any other questions regarding labor or employment law generally, please contact any of our attorneys.

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

On August 10, 2018, Governor Baker signed a bill reforming the use of non-competition agreements in employment contexts. The bill, referred to as the Massachusetts Noncompetition Agreement Act (the “Act”), goes into effect on October 1, 2018 and does not retroactively impact contracts entered into before that date.

Definition of “Non-Competition Agreement”

The Act defines a non-competition agreement as “an agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that he or she will not engage in certain specified activities competitive with his or her employer after the employment relationship has ended.” The definition specifically excludes non-solicitation agreements, non-competition agreements made in connection with the sale of a business or its assets, forfeiture agreements, non-disclosure agreements, non-competition agreements made in connection with the end of employment where the employee is expressly given seven (7) business days to rescind acceptance, and agreements where the employee agrees to not reapply for employment with the same employer after their termination.

Requirements

To be valid and enforceable under the new law, a non-competition agreement:

(i) must be in writing and signed by both the employer and employee;

(ii) must expressly state that the employee has the right to consult with counsel prior to signing;

(iii) must be provided to the employee by the earlier of a formal offer of employment or ten (10) business days before the commencement of the employee’s employment, or if entered into after the date of hire provided to the employee at least ten (10) days prior to the effective date of the agreement;

(iv) must be no broader than necessary to protect an employer’s legitimate business interests;

(v) must not exceed twelve (12) months from the last day of employment, unless the employee has breached a fiduciary duty or has unlawfully taken the employer’s physical or electronic property, which could extend the duration to a maximum of twenty-four (24) months;

(vi) must be reasonable in geographic reach;

(vii) must be reasonable in the scope of proscribed activities in relation to the interests protected;

(viii) must be supported by a “garden leave clause”[1] or other mutually-agreed upon consideration;

(ix) must be consonant with public policy.

Enforcement

Non-competition agreements are not enforceable against the following types of workers:

(i) nonexempt employees under the FLSA;

(ii) undergraduate/graduate students partaking in an internship or short-term employment relationship;

(iii) employees that have been terminated without cause or laid off;

(iv) employees age eighteen (18) years old or younger.

To enforce a non-competition agreement, an action must be brought in the county where the employee resides or if mutually agreed upon by the parties, in Suffolk county.

Other Relevant Provisions

Choice of law provisions that designate a jurisdiction other than Massachusetts are not enforceable if the employee is or has been a resident of or employed in Massachusetts for at least thirty (30) days immediately preceding the end of employment.

Additionally, if a court finds an agreement unenforceable, the court has discretion to reform and revise the agreement so as to render it valid and enforceable.

If you have any questions about the new law before it goes into effect, please contact any of our attorneys.

 

[1] A “garden leave clause” is defined as a provision by which an employer agrees to pay the employee during the period of the agreement. The law states the payments made pursuant to a garden leave clause constitute wages under the Massachusetts wage statute, M.G.L. c. 149, § 148.

 

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