Appeals Court Clarifies the Three-Stage Burden Shifting Test in Cases Alleging Retaliation in Violation of G.L. Chapter 150E

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In City of Newton v. Commonwealth Employment Relations Board (“CERB”), No. 23-P-455 (May 22, 2024), the Appeals Court has clarified the three-stage burden shifting test that applies in a case alleging retaliation for the exercise of protected rights by a union member where the claim relies on circumstantial evidence of the employer’s retaliatory motive. The clarifications provide important guidance for application of the test in future cases.

Succinctly stated, the union filed a charge alleging that a police officer had been transferred from a day shift in the traffic bureau to a night shift in the patrol division in retaliation for his union activities. After a hearing, the DLR hearing officer ruled that the union failed to meet its ultimate, third stage burden to prove that the police officer would not have been transferred “but for” his protected activity. The hearing officer determined instead that the city employer’s primary reason for the transfer was the officer’s unprofessional conduct in having a verbal altercation with a subordinate together with earlier performance issues.

On appeal by the union, the CERB reversed the hearing officer’s decision. The CERB ruled that the city had failed to meet its second stage burden of producing evidence of a nonretaliatory reason for the transfer. On appeal by the city, the Appeals Court reversed.

The court initially addressed, and rejected, the city’s argument that at the first, “prima facie” stage, the officer was required to establish a “good work record”. It held that this would amount to “an additional element of proof” to the existing first stage requirements that an employee show that they engaged in conduct protected by chapter 150E, that they “suffered some adverse action”, and that there is a “causal connection” between the protected conduct and the adverse action.

The court then honed in on the first stage “adverse action” element. It held that this required an assessment of whether the officer suffered an adverse action as measured by the terms of the applicable collective bargaining agreement. Because the agreement provided that transfer to the night shift was accompanied by an increase in pay, the court concluded that the city and the union had negotiated the asserted disadvantages of the night shift; that there was no “objective material change” in the terms and conditions of the officer’s employment; and, therefore, that there was no “adverse action”. Accordingly, the employee’s case failed at the first stage of the test.

While unnecessary to its decision, the court also addressed the CERB’s conclusion that the city had not satisfied its second stage burden because it had not produced direct evidence of a nonretaliatory motivation. The court stated that the employer’s burden is one of production, not of persuasion, and that at this second stage the employer may rely on circumstantial evidence. It further stated that contemporaneous documentation of the officer’s altercation and his history of noncompliance with new traffic protocols, coupled with the hearing officer’s decision to credit the testimony of the employee who investigated the altercation and the lack of any evidence that this employee was motivated by antiunion animus, were sufficient to meet the city’s second stage burden. Acknowledging that the evidence could have resulted in the opposite inference given the timing of the officer’s union activity and his transfer as well as comments by the chief, the court stated that the resolution of “competing reasonable inferences” is not the task at the second stage.

This decision provides significant illumination of the three-stage test in chapter 150E retaliation claims that do not involve direct evidence of antiunion motivation. Obviously, these cases turn on their specific facts and legal advice should be sought in assessing a given claim.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to the collective bargaining relationship under chapter 150E.

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

Appeals Court Reiterates Vacation Time Accrued Under the Terms of a Contract is Protected by the Wage Act

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On May 14, 2024, the Appeals Court issued a summary decision in Convey v. Commonwealth of Massachusetts & another, 22-P-930, holding that vacation time accrued under the terms of a collective bargaining agreement (“CBA”) constituted “wages” protected by the Wage Act and, therefore, could not be bargained away by the Union.

The plaintiff, an adult education teacher employed by the Department of Correction (“DOC”), was represented by a Union in labor negotiations with the defendants. Those negotiations culminated in a CBA (2016 CBA), which provided for a forty-week school year and a summer vacation. Prior to the expiration of the 2016 CBA and the start of the 2016 – 2017 school year, the union and the defendants executed a memorandum of understanding (MOU) eliminating the summer vacation time for the summer of 2017. The parties subsequently agreed to a new CBA (2017 CBA) that incorporated this change. In response, the plaintiff initiated an action on behalf of herself and similarly situated employees under the Massachusetts Wage Act (G.L. c. 149, §§ 148, 150) arguing that they had been denied earned wages due to them on a prorated basis from July 1 to September 6, 2017 – the period of the summer vacation. On cross motions for summary judgment, a judge of the Superior Court granted summary judgment for the defendants DOC and Commonwealth of Massachusetts.

After de novo review of the grant of summary judgment, the Appeals Court vacated the Superior Court judgment. The Appeals Court explained that the purpose of the Wage Act is to provide strong statutory protection for employees and their right to wages. The term “wages” includes holiday or vacation payments due to an employee under an oral or written agreement. While under G.L. 150E, unions are the exclusive representative of all employees for the purposes of collective bargaining, the statutory right to the timely payment of wages does not involve the collective rights of employees. The Appeals Court reasoned that in this case the plaintiffs completed the work required of them under the terms of the 2016 CBA, therefore, the vacation promised under the 2016 CBA became protected under the Wage Act as wages earned by them. The Wage Act expressly prohibits “special contracts,” which are contracts that require an employee to forfeit earned wages. Accordingly, the Union was not empowered to bargain away the plaintiff’s individual rights to vacation time. To the extent the Union abrogated the plaintiffs’ right to earned wages under the MOU and 2017 CBA, such agreements were unenforceable as a proscribed “special contracts.”

As a summary decision, Convey is not binding precedent, nevertheless it is an important reminder that under the Massachusetts Wage Act, vacation time due under a contract counts as “wages,” the individual rights to which cannot be forfeited by a Union during labor negotiations.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to compliance with the Wage Act.

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

Ann Marie Noonan Presents at MMHR HR101 Boot Camp

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On Thursday, May 9, 2024 Ann Marie presented at the Massachusetts Municipal Human Resources (MMHR) Boot Camp. Ann Marie presented on Labor Law Updates.

U.S. Department of Education Publishes New Title IX Regulations Requiring Policy Updates and Training

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Last month, the U.S. Department of Education (“DOE”) released new Title IX regulations that will go into effect on August 1, 2024.  These regulations require training and changes to school district policies and procedures regarding sexual harassment. Among the changes are:

Definitions
The new regulations more broadly define the conduct that may be investigated by a school district. Previously, the regulations contained a narrow definition of “sexual harassment.” Now, the regulations are using the term “sex-based harassment” to trigger obligations under Title IX. Sex-based harassment includes: (1) sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, gender identity and sexual orientation and other sex-based conduct; (2) quid pro quo requiring the participation of unwelcome sexual conduct; (3) a hostile environment that is subjectively and objectively offensive and is so severe or pervasive that it limits/denies a person’s ability to participate in/benefit from an educational program or activity; and (4) sexual assault (as defined by a federal uniform crime reporting system).

While school districts in Massachusetts have always been obligated to investigate and respond to allegations that fall under the term “sex-based harassment”, these changes now require that they be investigated pursuant to Title IX regulations and its investigation process. Moreover, the new regulations lower the standard to prove a hostile environment, changing from “severe and pervasive” to “severe or pervasive.”

Investigator Model
Previously, the Title IX regulations required that the Title IX Coordinator, investigator and decisionmaker roles all be fulfilled by separate individuals. The new regulations allow school districts to utilize a “single-investigator” model allowing the same individual to fulfill all of these roles. However, individuals involved in these roles must be trained and free of bias.

Supportive Measures for Special Education Students
If a student has either an individualized education program (“IEP”) or 504 plan and is involved with an investigation falling under Title IX, the Title IX Coordinator must consult with one or more members of the student’s Team to ensure compliance with the IEP/504 throughout the investigatory process.

Response to Allegations
Previously, “actual knowledge” of sexual harassment triggered a school district’s obligation under Title IX. Going forward, the new regulations have lowered this standard, so that a school district which has knowledge of conduct that reasonably may constitute sex discrimination in a program/activity must respond promptly and effectively with next steps.

Moreover, complaints no longer need be written and signed – if a request can be objectively understood as a request to investigate and make a determination as to whether sex discrimination occurred, the school district has an obligation to respond to the request.

Complaint and Investigation Process
Unlike the previous regulations which required complainants to be presently participating in a school district’s program or activity, now complainants may file complaints of sex-based harassment even if they have left the program.

Moreover, school districts are still required to have reasonably prompt timeframes for major stages of an investigation, but no longer need to follow specific timeframe requirements (i.e., 10 days for parties to inspect documents). Rather, parties are entitled to an equal opportunity to access evidence and respond.

Off-School Conduct
The prior regulations did not permit school districts to investigate, pursuant to Title IX, off-school conduct that was not school-sponsored or outside of the United States. The new regulations expand the type of off-school conduct that can be investigated pursuant to Title IX, obligating school districts to investigate sex-based hostile environment claims even when some of the conduct alleged to contribute to a hostile environment occurred outside of the school district’s programs or activities.

Burden of Proof
A school district must now state in its complaint process the standard of proof that will be used to evaluate evidence. The school district may use a preponderance of the evidence standard (lower threshold) or a clear and convincing standard (higher threshold).

Pregnancy Protections
The Title IX regulations now require that school districts afford certain rights to pregnant students and employees. As to students, school districts must ensure that pregnant students are notified of how to contact the Title IX Coordinator, as well as receive information about reasonable modifications, potential leaves of absence, and available lactation spaces. As to employees, school districts must provide reasonable time and space for lactation purposes and may not take adverse action against an employee on the basis of sex as it relates to the employee’s parental, family or marital status, status as a family wage earner, or current, potential or past pregnancy or pregnancy-related conditions.

Policy Review and Training
School Committees will need to update their policies to conform to the new law which goes into effect on August 1st and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding the new regulations, please contact any of our attorneys.

 

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

Nick Dominello to Present at 2024 COSA School Law Seminar

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On Thursday, April 4, 2024 Nick will present at the 2024 Council of School Attorneys (COSA) School Law Seminar in New Orleans. Nick will be presenting a workshop on collective bargaining.

Liz Valerio Presents at MMA Monthly Meeting

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On Wednesday, March 27, 2024 Liz presented at the Massachusetts Mayor’s Association (MMA) Monthly Meeting. Liz will be hosting a workshop on collective bargaining.

Liz Valerio and Nick Dominello Present at MASPA Annual Law Day

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On Friday, March 22, 2024 Liz and Nick presented at the Annual Massachusetts Association of School Personnel Administrators (MASPA) Annual Law Day. Liz and Nick hosted a collective bargaining workshop on employee speech and leaves and accommodations.

Liz Valerio and Ann Marie Noonan Present at MMAAA Annual Education Program

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On Tuesday, March 19, 2024 Liz and Ann Marie presented at the Massachusetts Municipal Auditors’ & Accountants’ Association (MMAAA) Annual Education Program. Liz and Ann Marie presented a collective bargaining workshop on preparing for and trends in collective bargaining.

Appeals Court Clarifies the Reasonableness Standard for Public Records Requests

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On March 15, 2024, the Massachusetts Appeals Court issued a decision in Friedman v. Division of Administrative Law Appeals, No. 23-P-369, which decided whether certain public records requests adequately describe the records sought. The Massachusetts Public Records Law, G.L. c. 66 § 10(a), requires state governmental agencies to provide access to public records so long as three conditions are met, including a requirement that the request “reasonably describes the public record sought.” This requirement is generally met when the request is specific enough to allow a professional employee to locate the record with a reasonable amount of effort.

At issue in Friedman were five public records requests submitted by Bruce Friedman, who is the founder of a community-based news outlet, to the Bureau of Special Education Appeals (the “Bureau”). The Bureau initially agreed to produce documents to Friedman on a rolling basis without charge. However, the Bureau stopped producing documents because Friedman kept submitting more public records requests, which interfered with the Bureau’s attempts to comply. Friedman sued the Bureau under the Public Records Law, seeking to compel production responsive to the five records requests. The Superior Court dismissed his complaint and Friedman appealed, resulting in the decision by the Appeals Court.

The court addressed Friedman’s first request which sought all e-mail and text messages between the Bureau and anyone with an email domain belonging to a law firm that conducted business before the Bureau during a three-year timeframe. Although this request was extensive and burdensome on the Bureau, encompassing 11,000 documents, the court found that the Bureau has a duty to provide the records because the documents can be identified with reasonable effort. The court dealt differently with Friedman’s second request, which sought text messages exchanged between Bureau staff and “anyone who currently works or has worked” at the law firm over a five-year period. The court found the request unreasonable because Friedman did not identify the names of past or present employees of the law firm nor did he provide cell phone numbers. The court held that this would have required the Bureau to determine each person who worked at the law firm and their cell phone numbers.

The court also found that two more of Friedman’s requests did not reasonably describe the records sought. One of these requests sought “any and all data contained in the case management system” used by the Bureau over a fourteen-year period. The other request covered “any and all raw data in any format” concerning twelve separate categories of information over the same period. The court reasoned that these were broad sweeping requests that lacked specificity. The court decided, however, that Friedman’s final request was reasonable. That request sought the calendars of the Bureau’s Director. Because the Bureau was able to identify the responsive data, the court found that the request reasonably identified the records sought.

The court’s ruling states clearly that the relevant inquiry is whether the request is specific enough that the documents requested can be identified with reasonable effort. The court did not find that any of Friedman’s requests were too burdensome to meet the “reasonably describes” requirement. Recognizing that the litigation was only in the initial pleadings stage, the court, in a footnote, stated that a request “could simply be too burdensome to meet the ‘reasonably describes’ requirement”, and did not rule out the possibility that the Bureau might substantiate this with specific facts at a later stage in the case.

Governmental entities should be aware of Friedman because it shows how courts will apply the rule that public records requests must be reasonably described. State and local government agencies are well-advised to work with requestors to narrow down onerous requests, including identification of the documents sought and the timeline for production.

If you have any questions about the content of this update or about the Public Records Law, our attorneys are pleased to assist public officials with all public records issues.

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

Supreme Court Sets Test for When Officials’ Social Media Use is State Action

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On March 15, 2024, the United States Supreme Court issued a unanimous decision in Lindke v. Freed, No. 22-611, which clarified when a state official can be held liable under the First Amendment for blocking someone from their personal social media account. 42 U.S.C. § 1983 provides a cause of action against any official who deprives someone of a constitutional right, including the First Amendment right to free speech, when the official is acting in their government role such that their acts are attributable to the state. In Lindke, the Supreme Court established a new, two-pronged test to determine when an official’s social media use is state action and, therefore, subject to a § 1983 claim.

The official implicated in Lindke, James Freed, is the city manager of Port Huron, Michigan. He ran a public Facebook page where he posted primarily about his personal life but also posted information related to his job, such as highlighting communications from other officials and soliciting feedback from the public on issues of public concern. Freed’s Facebook page was not clearly designated as being either personal or professional. When Freed posted about the COVID-19 pandemic, Kevin Lindke commented on his posts to express displeasure with the city’s approach to the pandemic. Freed blocked Lindke and deleted his comments. Lindke then sued Freed under 42 U.S.C. § 1983, alleging that Freed had violated his First Amendment rights. The District Court dismissed the case and the Sixth Circuit affirmed. After articulating the new standard, the Supreme Court remanded back to the Sixth Circuit. The Supreme Court also remanded a companion case, O’Connor-Ratcliff v. Garnier, No. 22-324, to the Ninth Circuit in light of the decision in Lindke.

Under the first prong of its test, the Court held that it is not enough that the official has “some authority to communicate with residents on behalf of” the local government. Instead, the “alleged censorship must be connected to speech on a matter within [the official]’s bailiwick.” The Court pointed out that “[t]he inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the [governmental body] entrusted the official to do” [emphasis in original].

Moving to the second prong of the test, the Court held that “[f]or social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it.” Because Freed’s social media page “was not designated either ‘personal’ or ‘official,’” this “rais[ed] the prospect that it was ‘mixed use’—a place where he made some posts in his personal capacity and others in his capacity as city manager.” The Court ruled that “[c]ategorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking in which the post’s content and function are the most important considerations.”

The Court noted that:

“[h]ard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection.”

The Court therefore decided that:

“it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.”

Further complicating the analysis, the Court differentiated Freed’s “deletion” of the plaintiff’s comment from “blocking” him. It pointed out that “[s]o far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed” but, because “blocking operated on a page-wide basis,” the analysis must determine whether Freed “engaged in state action with respect to any post on which Lindke wished to comment” [emphasis added].

The Court summarized its complex analysis by stating the obvious consequence – “[a] public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

Lindke is important because it is the first time the Supreme Court has ruled on the social media activity of public officials. While the Court strove earnestly to balance the First Amendment rights of government officials using social media with the rights of those reading their posts,  officials should be cognizant of the Lindke test. The decision graphically illustrates the risks of using a personal social media account to post about government business and to delete or block comments.

If you have any questions about the content of this update or about implications for your social media usage, please contact us. We are pleased to assist public officials with all First Amendment issues.

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