The Massachusetts Appeals Court held yesterday that a public teachers’ union could not arbitrate on behalf of a former teacher who had worked for fewer than 90 days in the school district. Under the state statute governing teacher dismissals, G.L. c. 71, § 42, the former teacher was an employee at will and, as such, had no statutory due process rights controlling his termination from employment. The case is Spencer-East Brookfield Reg’l High Sch. Dist. V. Spencer-East Brookfield Teachers’ Ass’n, 17-P-103 (June 4, 2018).

In 2016, the Spencer-East Brookfield Regional School District (the “District”) terminated a teacher after only 44 days of employment. Four days after the teacher’s termination, the Spencer-East Brookfield Teachers’ Association (the “Association”) filed a grievance asserting that, prior to the teacher’s termination, the District had failed to provide him with proper mentoring and evaluation, as required by the parties’ collective bargaining agreement. To remedy the purported violation, the Association sought to have the teacher reinstated.

The court premised its decision with a summary of G.L. c. 71, § 42, which lays out three levels of procedural and substantive due process requirements and protections for teachers. The remedies in § 42 are “the exclusive remedies available to teachers for wrongful termination,” irrespective of the provisions of any applicable collective bargaining agreement. The court reviewed the three categories of requirements.

First, under § 42, teachers with professional teacher status (“PTS”) are afforded the greatest degree of due process rights and protections. PTS teachers may not be terminated except for “inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards . . . or other just cause.” PTS teachers have the right to receive written notice of the intent to terminate employment with an explanation and documentation of the reasons sufficient to allow the teacher respond. PTS teachers also have the right to seek review of a termination at an arbitral hearing, where the school district carries the burden of proof.

Second, a lesser degree of due process protection is afforded to non-PTS teachers who have been teaching in a school district for at least 90 calendar days. Such teachers are entitled, prior to termination, to receive written notice of the district’s intent to dismiss them from employment and an explanation of the grounds for the dismissal in sufficient detail to permit the teacher to respond. Such teachers also have the right to review the decision to terminate with the principal or superintendent and to present information pertaining to the basis of the decision and to the teacher’s status. The teacher may have an attorney or other representative at the meeting.

Third, non-PTS teachers who have taught for fewer than 90 calendar days are deemed employees at will and have no statutory protections under § 42. Employment at will is terminable by either the employee or the employer without notice, for almost any reason or for no reason at all.

Here, the Association argued that, despite the teacher’s at-will employment status, it could still arbitrate purported violations of the collective bargaining agreement that preceded his termination. The court disagreed, noting that the 1993 Education Reform Act subjects all collective bargaining agreements to § 42. Moreover, the teacher had been terminated from employment before the Association filed its grievance, meaning that the teacher was no longer entitled to any benefits the collective bargaining agreement might have conferred upon him. Therefore, the Appeals Court affirmed the Superior Court’s judgment permanently staying the grievance arbitration proceeding commenced by the Association before the Department of Labor Relations.

The court did not address the question of whether, had the grievance been filed before the teacher’s termination, the purported contractual violations would have been arbitrable.

If you have questions about this decision, 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.

On May 10, 2018, the Supreme Judicial Court held in Camargo’s Case (SJC-12368) that in determining whether someone is an employee or an independent contractor for workers’ compensation purposes, the definition of “employee” from the workers’ compensation statute, G.L. c. 152, § 1, must be applied, as opposed to the definition from the independent contractor statute, G.L. c. 149, § 148B.  Applying the appropriate definition, the court determined the plaintiff was an independent contractor and therefore not entitled to workers’ compensation benefits.

The plaintiff contracted with defendant Publishers Circulation Fulfillment, Inc. (“PCF”) as a newspaper delivery agent. After she was injured delivering newspapers and ultimately relieved of her services, she sought workers’ compensation benefits, which PCF denied on the basis that she was not an employee.  The matter was then brought to the Department of Industrial Accidents (“Department”) which is responsible for resolving workers’ compensation disputes.  The Department applied the workers’ compensation statute’s definition of “employee” and found that the claimant was an independent contractor ineligible for workers’ compensation benefits. The Plaintiff appealed, contending that the Department should have applied the independent contractor statute’s definition of “employee.”

Historically, the Department has applied the workers’ compensation statute’s definition of “employee” as well as a common law twelve (12) factor test to decide if workers are employees or independent contractors. The court affirmed this practice.  In reaching its conclusion, the court pointed out that the independent contractor statute excludes any reference to workers’ compensation benefits.  If the Legislature had intended for that statute to apply to workers’ compensation claims, it would have included language to that effect.

The court warned of the consequences of having numerous statutory definitions of “employee.” The court listed four Massachusetts laws with competing definitions of an “employee”: the workers’ compensation law, the independent contractor law, an unemployment insurance law, and a law on withholding taxes on wages.  Workers may qualify as employees for one purpose, but an independent contractor for another, making it difficult for them to comprehend their rights.  Accordingly, the court implored the Legislature to harmonize these laws or provide more guidance to workers.

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

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

On April 12, 2018, the Civil Service Commission (“Commission”) released a decision, Dabene v. Boston Police Department, in which it opined on the requisite level of untruthfulness to substantiate bypass of a candidate for a police officer position.  It is well-established in decisions under the Civil Service Law, G.L. c. 71, that honesty is a necessary trait for individuals who are, or are seeking to become, a police officer.  In this case, the municipal employer bypassed a candidate for original appointment to the position of police officer based on concern that he previously provided untruthful information in his application.  The  bypass was appealed to the Commission.

In a 2015 job application with the Massachusetts State Police, there was a question posed to applicants whether they were proficient in any languages besides English; the candidate did not answer as being proficient in any such languages.  In a 2016 job application with the municipal employer, there was a question posed to applicants whether they had a basic knowledge of any languages besides English; the candidate indicated that he had a basic knowledge of both the Spanish and Italian languages after studying them in high school and college.  He then completed an application for a police officer position with the employer in 2017, where he did not answer that he had a basic knowledge of any languages other than English.  When the employer inquired why he had listed himself as having a basic knowledge of two languages in his 2016 application but not in his 2017 application, the candidate wrote that “[although I had taken classes in the past, it is clear that I have lost much of my proficiency in these languages…I did not list these languages, as I am now aware that I am not as proficient as I once was.”

In reviewing the bypass, the Commission noted that labeling candidates as untruthful “can be an inherently subjective determination that should be made only after a thorough, serious and uniform review that is mindful of the career-ending consequences that such a conclusion has on candidates seeking a career in public safety.” Here, while the candidate had received satisfactory grades in his Spanish and Italian courses, the employer relied on the fact he had listed himself as “proficient” in those languages on his State Police application but did not list himself as having a “basic knowledge” in his latest application with it.  The Commission determined this question to be highly subjective because the application provided no guidance as to what constituted “basic knowledge” and left its meaning up to interpretation.  Thus, the Commission found that the employer had not proven that the candidate was untruthful in his application and invalidated the bypass.

This case serves as important guidance for public employers in assessing and bypassing job candidates. Employers should ensure that application questions are clear and objective, and offer direction when necessary.  Additionally, when reviewing inconsistencies between application responses and background investigations, employers should be careful to determine whether a candidate may have had a genuine misunderstanding or was untruthful.  This is especially important because past decisions have generally deferred to the employer’s judgment in requiring that candidates for original appointment or promotion as police officers be found scrupulously honest.  This decision shows that the Commission will scrutinize those determinations in a bypass case.

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

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

In a decision released March 27, 2018, the Supreme Judicial Court held that the right of a middle or upper level state manager to revert to a previously-held civil service position under G.L. c. 30, § 46D applies only to involuntary terminations, not to voluntary resignations.

The case, Spencer v. Civil Service Commission, SJC-12326, involved the former Commissioner of Correction, who voluntarily resigned from his position in July 2014. Upon his resignation, the commissioner asked that he be allowed to revert to his last tenured civil service position, a position he had not held in over 20 years. The reversion would have significantly enhanced his retirement benefits. After his request was denied by the Secretary of the Executive Office of Public Safety & Security, the former commissioner filed an appeal with the Civil Service Commission (“Commission”). The Commission dismissed the case, and the former commissioner thereafter sought judicial review. The SJC took the case on its own motion.

G.L. c. 30, § 46D permits an individual who holds a middle or upper level management position with the Commonwealth to revert or “bump” back to the tenured civil service position from which he or she was promoted upon “termination of his [or her] service.” The phrase “termination of his [or her] service” is not defined in the statute and, prior to this decision, its meaning was unsettled.

The SJC concluded that the phrase refers only to involuntary terminations. In reaching its decision, the court noted the legislative history surrounding the 1981 overhaul of the civil service scheme, as well as relevant Commission precedent. Both factors supported a finding that the reversion or “bumping” right available to state managers under G.L. c. 30, § 46D was limited solely to involuntary terminations.

The court rejected the former commissioner’s argument that he was entitled to revert back to his former civil service position under G.L. c. 30, § 46D due to the Department of Correction’s long-standing practice of allowing upper level managers to revert to their prior civil service positions shortly before retirement. The court noted that this practice allowed the managers to significantly enhance their retirement benefits at the expense of the “bumped” lower level employees and that such contrived or “sham” reversions are illegal under the state pension law. The SJC wrote: “G.L. c. 30, § 46D, was not designed to permit a high-level manager to voluntarily resign and revert, particularly when he does so for the purpose of attaining enhanced retirement benefits designed for a hazardous employment position he has not occupied in twenty-five years. Instead, § 46D is designed to provide managers involuntarily terminated the right to revert to continue their public service.”

Lastly, the court reiterated its previous ruling that an employee’s resignation is voluntary absent a showing of fraud, coercion, or duress. It also affirmed the Commission’s consistently held rule that “mere evidence that a resignation was made under threat of discharge or discipline is not enough” to establish coercion or duress.

While the ruling in Spencer is limited to state managers’ rights to reversion under G.L. c. 30, § 46D, it highlights the need for municipal employers to comply with the requirements of the civil service law, G.L. c. 31, when promoting a tenured civil service employee to a non-civil service position.

Section 37 of the civil service statute discusses the circumstances in which an appointing authority may authorize leaves of absence to permanent civil service employees. For example, a leave of absence for a period up to 14 days is at the discretion of the appointing authority, while a leave of absence for a period greater than 14 days must be in writing and only after a written request for such leave by the employee. Any leave of absence greater than three months requires prior approval of the Human Resources Division. Without such approval, the employee runs the risk of not being able to return to his or her prior civil service position at the end of such leave.

Please contact any of our attorneys if you have any questions about how this decision may impact you or if you have any other questions regarding civil service law or other labor and employment matters.

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

In a decision released February 13, 2018, the Supreme Judicial Court held that sick or vacation payments, when used to supplement workers’ compensation payments, are not “regular compensation” as defined in the Contributory Retirement Law, G.L. c. 32, § 1.

The decision, Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board & others, SJC-12331, involved an employee for the Town of Swampscott. The employee sustained injuries at work and began receiving workers’ compensation benefits. In addition to those benefits under G.L. c. 152, § 69, the employee received two hours per week of supplemental pay (i.e., sick or vacation pay) in order to maintain his union membership and life insurance. Under G.L. c. 152, § 69, a public employer may pay an employee who is receiving workers’ compensation all of their accrued vacation and sick time “in part until any sick leave allowance which the employee has to his credit has been used.”

The Town filed an application seeking to retire the employee involuntarily for accidental disability; the Retirement Board approved the application; and the employee received workers compensation benefits and supplemental pay through June 7, 2012. The Public Employee Retirement Administration Commission (“PERAC”) determined that the employee’s effective retirement date was July 7, 2012, because that was the last day he received “regular compensation” in the form of his supplemental pay. The Division of Administrative Law Appeals reversed PERAC’s decision, finding that the employee’s supplemental pay did not constitute “regular compensation.” Both the Contributory Retirement Appeal Board and a Superior Court judge agreed with DALA’s decision; an appeal followed; and the SJC took the case on its own motion.

The sole issue before the SJC was whether supplemental pay received in conjunction with workers’ compensation constitutes “regular compensation” under G.L. c. 32, § 1. “Regular compensation” is defined in the statute as “compensation received exclusively as wages by an employee for services performed in the course of employment.” The court has interpreted this to mean ordinary, recurrent, or repeated payments, as opposed to irregular payments such as bonuses or overtime pay. The court concluded that supplemental pay received while an employee can no longer provide employment services for the employer is not “regular compensation” for the following reasons:

• Regular compensation means wages paid to an employee for “services performed” and an injured employee on workers’ compensation, by definition, is unable to perform services;
• Regular compensation must be “of indefinite duration,” but sick and vacation time is limited in amount;
• The workers’ compensation statute implies that supplemental pay is intended to be a “substitute for an employee’s regular salary”; and
• Workers’ compensation itself is not regular compensation.

Please contact any of our attorneys if you have any questions about how this decision may impact you or if you have any other questions regarding labor and employment matters.

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