Recent Developments

Independent contractors are generally not entitled to the basic protections provided employees under the Fair Labor Standards Act - namely minimum wage for all hours worked and overtime for all hours worked over 40. It is not surprising that some employers misclassify certain employees as "independent contractors" in an effort to deny them the guarantees of federal and state wage and hour laws. Here, the work of Attorney Ian Russell led to the 11th Circuit U.S.

The Boston-based Regional Director of National Labor Relations Board has ruled that employees represented by 1199SEIU United Health Care Workers East should vote in an upcoming election about representation. Attorney David Rome represented the Union in this proceeding.

The duty to bargain in good faith requires an employer to deal exclusively with a union or labor group about terms and conditions of employment. The duty also prohibits an employer from lobbying or polling individual employees about bargaining proposals, unless the union agrees. An employer also must adhere to agreed-upon ground rules for successor bargaining.

Employees who test positive for drugs frequently are permitted to keep their jobs so long as they do one or all of the following: 1) serve a suspension; 2) successfully complete substance abuse treatment; & 3) establish themselves to be drug free prior to returning to work. A return-to-duty drug test or subsequent test that is positive can justify termination. Attorneys Jillian Ryan and Alfred Gordon persuaded an arbitrator that a positive return-to-duty drug test could not justify termination, given the possibility that it could have reflected residual use from the time the worker initially tested positive.

Most policies or collective bargaining agreement articles on substance abuse prohibit use that is on-duty or interferes with job performance. At the same time, many policies recognize that substance abuse is an involuntary affliction that is more effectively addressed through rehabilitative and humanitarian measures. A one-strike or zero-tolerance approach can be ineffective because it fails to recognize the persistence and pervasiveness of addiction, discourages people from seeking treatment (for fear it will lead to termination), and is unlikely to reduce incidence of drug abuse.

By contrast, a policy that provides for a second chance expressly encourages workers to seek treatment, provides the opportunity for employees to confront and correct behavior that may have been undiagnosed or unrecognized, and is more likely to reduce substance abuse at work.

For employees subject to a policy that provides for a second chance, it is critical that any subsequent test examine the period after the employee has successfully completed any treatment program. This notion applies whether the test is a return-to-duty is conducted prior to working again or a random test administered after the employee is working again.

In the arbitration at issue, the employee tested positive at work. The Union, employer and employee agreed that the employee would serve a suspension, seek treatment, and produce a negative test result prior to coming back to work. The employee completed rehabilitation and asked to be tested. The test was positive, despite the employee not using drugs for about a month. But the Arbitrator agreed with the Union that the employer could not persuasively exclude the possibility that the result reflected use around the time of the original test or prior to rehabilitation.

A Massachusetts public employer who unlawfully changes a term or condition of employment without first notifying a union and providing it a chance to bargain normally is forced to restore conditions to how they existed before the unilateral change. This remedy is known as restoring the "status quo ante." Recently, the Commonwealth Employment Relations Board (CERB) agreed with Attorney David Rome and his client SEIU Local 888 that status quo ante requires the Employer to reinstate an unlawfully laid off employee, even if the employee subsequently retired.

Massachusetts Law (Chapter 31, Section 58) provides that civil service fire and police officers must live within 10 miles of the community where they work. Massachusetts Law also provides (under Chapter 41, Section 99A) that fire fighters and police officers must live (in or out of the Commonwealth) within 15 miles of the community where they work. The latter law further states that any local ordinance requiring

SEIU Local 509 took one step closer toward being recognized as the official and exclusive bargaining representative of front-line service workers at CLASS, Inc. in Merrimack Valley. Attorneys Kate Shea and Patrick Bryant represented Local 509 in this process.

Under Massachusetts law, a heart problem that permanently disables a firefighter or police officer from his or her job is presumed to be work related. By contrast, Massachusetts law, as interpreted by the courts, also provides that a heart problem that temporarily disables a firefighter or police officer from working is NOT presumed to be work related.

In Massachusetts, the Joint Labor Management Committee appoints an interest arbitration panel to settle stalled contract negotiations between municipalities and public safety locals. Once the panel issues an award determining wages and other disputed terms and conditions of employment, a City is required to submit the award for funding to City Council within 30 days and to vigorously support the funding request.

The following letter to the editor from Attorney Patrick N. Bryant was submitted to, and unpublished by, The Boston Globe.