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.

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.

In a recent decision the United States District Court for the District of Massachusetts has ruled that a request by a full-time teacher to work part-time for medical reasons may constitute a reasonable accommodation under the federal and Massachusetts statutes which bar discrimination against an employee with a qualifying disability. In Incutto v. Newton Public Schools, et al., Civil Action No. 16-12385-LTS, the court denied the school district’s motion for summary judgment and held that the teacher had presented sufficient evidence to let a jury decide the case. The plaintiff was employed as a full-time kindergarten teacher but after being diagnosed with a qualifying medical condition had requested that she be assigned part-time teaching duties. The school district argued that because her position was full-time, an essential function of her job was attendance during the regular school-day hours of 8:20 AM to 3:30 PM Monday through Friday. The parties agreed that other than being present full-time the teacher could perform all the other required functions of her teaching position.

The court concluded that whether full-time attendance was an “essential function” would have to be decided after trial. It pointed to evidence in the record that for each of ten school years between three and seven elementary school teaching positions were job-shared by two teachers in the district and that in the three years before that the plaintiff herself had worked as a part-time teacher by job-sharing with others. Based on this the court held that the plaintiff had produced enough evidence to go before a jury on the question whether full-time presence was an “essential function” of her job and, therefore, whether her requested accommodation was unreasonable.

This case demonstrates how fact-specific is the inquiry which an employer must make when an employee requests an accommodation. Evidence as to whether the employer has imposed the same requirement on all similarly-situated employees will necessarily be relevant to making that determination.

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.