Recent Developments

Employees generally cannot disobey an order of a superior. Insubordination is a well-accepted ground for discipline and, in certain cases, termination. One exception is when the order presents a health or safety risk to the employee or co-workers. Here, the Civil Service Commission determined that public safety officers cannot necessarily rely upon this exception.

Well-established national standards demand that fire departments respond to fire scenes with at least three person crews. This protocol enables at least one fire fighter to staff the apparatus, while at least two firefighters can enter the burning structure. These standards, vetted by experts, indicate that firefighters should not enter a burning structure by themselves because they will place themselves at risk. Despite these clear and accepted standards, many communities routinely put their firefighters sand residents at risk by operating two-person fire crews.

Attorneys Tod Cochran and Warren Pyle represented a group of female employees of a North Short nightclub. An Essex Superior Court Judge recently approved the settlement last week.

Prior to returning to practice in Massachusetts as a partner with Pyle Rome Ehrenberg, PC, Attorney Patrick Bryant was a partner at McKanna Bishop Joffe, LLP, a union-side law firm in Portland Oregon, representing Oregon Education Association, United Food & Commercial Workers Union, Local 555, and several other private and public sector unions. One of Bryant’s final Oregon-based cases involved a challenge to the termination of a beloved rural agriculture/vocational teacher.

The Boston Police Department has a history of wrongfully bypassing police officer candidates based upon questionable psychological evaluations. This faulty decsionmaking led to numerous decisions being reversed by the Civil Service Commission and culminated in the Supreme Judicial Court’s 2012 decision, BPD v. Kavaleski.

It is unlawful for a private sector employer to discriminate against employees based upon their membership in or support for a union. This rule applies to all phases of employment – hiring, assignment, transfer, evaluation, promotion, discipline and termination.

Attorney Patrick Bryant recently helped Melrose Police Patrolmen's Association overturn discipline against officers who allegedly abused or used sick leave to excess. Association Collective bargaining agreements frequently provide a certain amount of sick leave to use, and also the circumstances under which sick leave can be used. Some contracts also specify the circumstances in which sick leave use can lead to an investigation or discipline. Many contracts do not require employees to produce a doctors note for every single absence.

Generally, a worker whose termination is reversed by an arbitrator is entitled to the wages and benefits they lost from the time they were terminated to the date they were reinstated. But, employers have succeeded in persuading arbitrators and courts that employees are not entitled to keep all their lost wages and benefits. Back pay awards, employers argue, must be reduced by the amount of pay and benefits the employees earned during the period after termination.

A collective declaration that employees have “no confidence” in their boss has been in the news lately. It is worth noting that “no confidence” votes can be protected, concerted activity under public or private sector collective bargaining law, and, if so, the employer cannot retaliate against employees who engage in such “no confidence” votes.

In Morehouse v. Weymouth Fire Department, the Civil Service Commission agreed that the statutory ban on smoking applies to fire fighters hired before the law went into effect, but who then went to work for another fire department after the law went into effect. The Commission further agreed that smoking is an offense warranting, if not compelling, termination.