State Labor Board Reverses Employee Suspensions Because the Commonwealth Failed to Bargain Over Monitoring of Telephone Calls

On March 8, 2021, the Commonwealth Employment Relations Board (CERB) ruled in favor of SEIU, Local 509 (Local 509), finding that the Commonwealth of Massachusetts (Commonwealth) violated the law when it failed to give Local 509 notice and an opportunity to bargain before MassHealth managers began secretly listening in on phone calls between MassHealth employees and members of the public. The CERB ordered that MassHealth stop listening in on calls until it engages in good faith bargaining with Local 509. It also ordered MassHealth to rescind the suspensions it issued to 11 employees who were disciplined as a result of the decision to secretly listen to the phone calls. Pyle Rome partner Ian Russell represented the Union in the case.

In early 2019, early 2019, MassHealth began using a previously unused feature of MassHealth’s computer-based phone system to listen in on phone calls between employees and members of the public. No warning or notice was provided to Local 509 or MassHealth employees. MassHealth then suspended 11 employees based on notes taken by managers while listening to phone calls. The CERB held that secretly listening to phone calls was a mandatory subject of bargaining because it changed both the type and amount of information available to managers and increased employees’ chances of being disciplined. MassHealth therefore violated the law when it started listening to calls without providing Local 509 with notice and an opportunity to bargain over the change. 

The decision by the CERB makes clear that employers must bargain with the union representing its employees before making significant changes to the way that it monitors employees, especially when those changes lead to increased chances of employees being disciplined.