NPH and NEPBA Win Promotional Process / Failure to Bargain Case v. Middlesex Sheriff’s Office

NPH Attorney Kevin Buck, together with NEPBA Local 500 President Keith Sullivan, recently won an Arbitration Decision challenging the addition of promotional testing criteria for certain operational jobs at the jail.  Below is a link to Arbitrator Sherri Talmadge’s award.

Quick background – the Sheriff wanted to use the most recent promotional examination to advance members to Sgt. and/or Lt. in both non-operational positions and theSuperintendent Picks. The language in the contract, Kevin argued, clearly stated that the promotional examinations were only to be used for operational positions; hence, If the Sheriff wanted to change it, he had to come to the table to bargain with the NEPBA.

The Sheriff argued that he had the right to make the change under the management rights clause, essentially arguing that the Union had waived the right to negotiate over any change to the use of promotional examinations.  The parties agreed to an expedited arbitration process and stipulated to the issues.

The decision was a good win for the union, keeping in place the past practice fought for by the union over time.  As always, and particularly with promotions, the employees have a right to know what to expect from the process.  This is true for work rules in general, and we see all the time the problems that occur when an employer changes the rules in the middle of the game, or decides all of a sudden to enforce rules that were never before enforced.

A level playing field, where everyone knows what to expect, is  not much to ask, and goes a  long, long way to solid labor relations.

CLICK HERE TO READ THE FULL DECISION:  Middlesex Sheriff’s Office and NEPBA (promotional exam) decision 7-2-12

Supervisor Liability: Another Federal Court says management can’t ask for reasons you are out sick

Finally, some good news on the privacy front.  A couple of years ago, the NEPBA won a cutting-edge case regarding sick time inquiries by employers. We were privileged to be the lawyers for the Dracut, MA officer who bravely challenged a policy requiring that police employees provide management with specific medical information in order to get approval of sick leave, including symptoms and the nature of the illness. Based on a Federal case out of New York, we argued that such inquires violate the American’s with Disabilities Act, even where the officer suffered no disability. Because the questions posed may tend to reveal a disability, they were unlawful. An arbitrator agreed with us, and that decision is posted elsewhere in this blog.

In February 2012, a Federal District Court in California took the same position, and issued a detailed decision explaining why supervisors who ask for this information are in violation of the ADA. Because the ADA is a discrimination statute, those found in violation are subject to both compensatory and punitive damages. Accordingly, supervisors asked to enforce policies requesting this type of information should make sure your employers will defend and indemnify you for any judgment in the event you are sued.

Significantly, many public employers are prohibited from indemnifying employees for punitive damage awards, so all the more reason to review policies seeking such information from employees.

Briefly, the California case involved a policy of a large department store requiring employees to provide a doctor’s note explaining the nature of the absence (i.e. migraine, high blood pressure) before a sick day would be approved. Four unsubstantiated absences resulted in termination.  More than 60 employees were subjected to discipline under this policy, and the EEOC (similar to the MCAD in Mass.) filed suit on behalf of all of them.

Relying on the same NY case that we did, the California court decided that the policy at issue was illegal on its face. The court suggested that the company simply could have relied on the doctor’s note to substantiate that the absence was legitimate. The employer was unable to provide any real reason why the doctor’s note was not enough. Moreover, the court intimated that fitness for duty tests that go beyond testing an employees ability to perform the job are also in violation of the ADA.

We are consistently advocating that personal medical information should remain private. There are always procedures in place to have employees examined by doctors (either the employer’s  doctor or the employee’s doctor).  Using those established procedures, the employer gets what they need, while at the same time protecting the privacy of employees. Once a doctor substantiates the need for the absence, there is generally no basis to inform a supervisor of specific symptoms, etc.

A copy of EEOC v. Dillard’s, Inc. can be found at the link below.  Anyone subject to such a policy, or asked to enforce one, should read it.  Also take a look at our case (NEPBA v. Dracut, elsewhere on this blog).

EEOC-v-Dillards.pdf

Supervisor Liability: Another Federal Court says management can’t ask for reasons you are out sick

Finally, some good news on the privacy front.  A couple of years ago, the NEPBA won a cutting-edge case regarding sick time inquiries by employers. We were privileged to be the lawyers for the Dracut, MA officer who bravely challenged a policy requiring that police employees provide management with specific medical information in order to get approval of sick leave, including symptoms and the nature of the illness. Based on a Federal case out of New York, we argued that such inquires violate the American’s with Disabilities Act, even where the officer suffered no disability. Because the questions posed may tend to reveal a disability, they were unlawful. An arbitrator agreed with us, and that decision is posted elsewhere in this blog.

In February 2012, a Federal District Court in California took the same position, and issued a detailed decision explaining why supervisors who ask for this information are in violation of the ADA. Because the ADA is a discrimination statute, those found in violation are subject to both compensatory and punitive damages. Accordingly, supervisors asked to enforce policies requesting this type of information should make sure your employers will defend and indemnify you for any judgment in the event you are sued.

Significantly, many public employers are prohibited from indemnifying employees for punitive damage awards, so all the more reason to review policies seeking such information from employees.

Briefly, the California case involved a policy of a large department store requiring employees to provide a doctor’s note explaining the nature of the absence (i.e. migraine, high blood pressure) before a sick day would be approved. Four unsubstantiated absences resulted in termination.  More than 60 employees were subjected to discipline under this policy, and the EEOC (similar to the MCAD in Mass.) filed suit on behalf of all of them.

Relying on the same NY case that we did, the California court decided that the policy at issue was illegal on its face. The court suggested that the company simply could have relied on the doctor’s note to substantiate that the absence was legitimate. The employer was unable to provide any real reason why the doctor’s note was not enough. Moreover, the court intimated that fitness for duty tests that go beyond testing an employees ability to perform the job are also in violation of the ADA.

We are consistently advocating that personal medical information should remain private. There are always procedures in place to have employees examined by doctors (either the employer’s  doctor or the employee’s doctor).  Using those established procedures, the employer gets what they need, while at the same time protecting the privacy of employees. Once a doctor substantiates the need for the absence, there is generally no basis to inform a supervisor of specific symptoms, etc.

A copy of EEOC v. Dillard’s, Inc. can be found at the link below.  Anyone subject to such a policy, or asked to enforce one, should read it.  Also take a look at our case (NEPBA v. Dracut, elsewhere on this blog).

EEOC-v-Dillards.pdf

NPH Case Brief: The Six Month Clock to File an Unfair Labor Practice Charge – When does it begin to tick?

Beware of the Bell – it tolls for thee.  Hemingway wrote it in reference to his famous character Robert Jordan, but it is good advice for Unions and their members when dealing with disputes that are within the jurisdiction of the Massachusetts Division of Labor Relations (DLR).  Failure to timely file complaints within the 6 month period could mean the death bell for the Union’s case.  So, when does the clock start ticking?

The DLR recently clarified the 6 month rule in a school committee case.  The basic rule isthis:  The clock begins to run as soon as the Union is (1) on notice that the Municipality intends to make a change to a mandatory subject of bargaining; and (2) it is apparent that bargaining by the union would be fruitless (i.e. the change is presented as fait accompli).

Under the rule, if the employer gives to the union notice of a proposed change in working conditions, and the union demands to bargain the proposed change, the 6 month clock does not begin to run until it becomes apparent that the employer is not bargaining in good faith, or is not willing to bargain until impasse. Once the union realizes that bargaining is futile, the clock starts.

This is a very important statute of limitations for unions, as Cities and Towns frequently request dismissal of cases on this basis.  In fact, as many of you know, employers have been known to hide in the weeds, and bank on local unions not keeping track of the time limit.  It is important to mark this crucial date, and be sure to file when necessary.

The DLR case on the issue (school case) is Town of East Bridgewater, MUP-07D-5095 (2012).