GENERAL COUNSEL’S CORNER - January 2013
by: Attorney John M. Collins
LATE FMLA NOTICE
Municipal employers continue to overlook the requirement to give prompt notice to employees under the Family and Medical Leave Act (FMLA). In most cases this will benefit the employee and may result in far more leave than is actually required by the law. Where it is clear that the employee had actual notice of the FMLA notice requirements, the onset of an employee’s FMLA leave may be delayed due to lack of required notice. However, this will require a great deal of effort and expense to show that the employee was effectively “notified” and all that can be avoided by giving timely and proper notice.
A common mistake is to not give FMLA notice if an officer is out “injured on duty.” In fact, whenever an employee is out three or more days for any medical reason (including caring for a relative), FMLA notice should be sent designating the absence as FMLA leave. Otherwise, the employee will still be able to demand an additional 12 weeks of FMLA leave in a given year, and that can be very costly and disruptive to department operations.
By properly posting – in a conspicuous place - the required notice at the worksite where the employee is employed and the employer’s provision of the required notice in either an employee handbook or employee distribution, this condition would be satisfied. See FMLA Regulation §825.300. The DOL’s Notice to Employees of Rights Under FMLA (WHD Publication 1420) satisfies this general notice requirement. This is on the MCOPA web site for chiefs to download.
Another often-overlooked provision of the FMLA is the requirement that an employee provide notice at least 30 days in advance when the need for FMLA leave is clearly foreseeable. Failure to give timely advance notice with no reasonable excuse allows the employer to delay FMLA coverage until 30 days after the date the employee provides notice. A pre-scheduled operation would be foreseeable while a call regarding an adoption might not be.
For “qualifying exigency” leave, notice must be provided as soon as practicable, regardless of how far in advance such leave is foreseeable.
Should the need for FMLA leave be foreseeable fewer than 30 days in advance, an employee may give notice as soon as practicable under the particular facts and circumstances. An employer may delay FMLA coverage for leave depending on the facts of the particular case.
Depending on the facts of the particular case, an employer may delay FMLA coverage for leave when the need for FMLA leave was unforeseeable and an employee failed to give notice in accordance with the regulation (§825.303).
An employer may but need not waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements.
BOP CHECKS ON CONSTABLES
Boards of Selectmen or other appointing authorities often ask chiefs to do BOP checks on applicants for appointment as Constables. Given the language of chapter 41, s. 91B, it is DCJIS’ position that chiefs may perform a BOP check as well as state by state checks via NLETS. However, chiefs may not conduct a name/DOB III check for Constable candidates.
EVERGREEN CLAUSES
Unfortunately, many communities have continued to insert so-called “evergreen clauses” in their collective bargaining agreements. This is a big mistake! In fact, they should be trying to remove the ones they already have.
Municipal managers that complain that management rights have been bargained away by their predecessors should stop blaming and start taking action. So long as there is no evergreen clause in place, management has its best opportunity do away with the costly errors of the past following the expiration of a collective bargaining agreement.
When a collective bargaining agreement expires, so long as a municipal employer provides the union notice and, if requested, engages in good faith negotiation an employer is not free unilaterally to change wages, hours, or other working conditions upon reaching impasse. In Commonwealth of Massachusetts, 19 MLC 1069 (1992). the LRC found that the expiration of the contract and the change of union did not relieve the employer of its continuing duty to contribute on the employees’ behalf to the health and welfare trust fund established under the contract. To establish a violation of the Law, an actual change in an existing condition of employment must have occurred, City of Peabody, 9 MLC 1447 (1982).and the change must involve or impact a mandatory subject of bargaining. Town of Billerica, 8 MLC 1957 (1982).The employer’s duty to maintain the status quo after a contract expires applies not only to contractual provisions, but also long-standing past practices. Commonwealth of Massachusetts, 9 MLC 1355 (1982).
By way of example, if a collective bargaining agreement has a provision that has prevented a chief from altering schedules, implementing new positions based on merit and not seniority, or otherwise frustrating efforts to control budgets or improve departmental operations, the best way to address this is to propose a change and, following the expiration of a contract, essentially eliminate the troublesome clause upon reaching impasse.
MEDICAL MARIJUANA
Chiefs should be sure that their department is aware that there is a zero tolerance policy for illegal drug use. The enactment of the recent ballot initiatives, first concerning possession of an ounce or less, and more recently for so-called “medical marijuana” have no impact on the department’s ability to discipline officers for use or possession of marijuana.
Simply issuing a memo reminding officers of this existing rule and or policy, is not a unilateral change in a working condition; therefore, no bargaining is required. However, without waiving the ability to assert that there is no change and this is a management right in any event, I do recommend that chiefs meet with the union if a timely request to do so is received. By agreeing to discuss any questions or concerns, and keeping an open mind and making a good faith effort to reach agreement, a chief will avoid prolonged litigation which can be costly and disruptive.
I have prepared several articles on this subject that the Association has e mailed to all chiefs. Copies are available on the web site as well.
eep in mind that there is no requirement to accommodate officers with a medical marijuana card, not to allow officers to be a caretaker or have any role in the operation of a medical marijuana distribution facility or network. Similarly, there is no obligation to offer treatment in place of discipline to officers found using or in possession of marijuana.
While the term “reasonable suspicion” is used to define the standard for ordering an officer to submit to a drug test, this state’s courts have interpreted that to be essentially “probable cause.” Therefore, unless a drug-testing article in the collective bargaining agreement provides otherwise, a chief will have to be able to document the basis for a drug test. Typically this would include observations of the officer’s demeanor, speech, stability and other indications similar to a field sobriety test. Certainly any admissions, or observations of use or possession will give the required probable cause. Once a chief has such probable cause, an officer may be ordered to go directly to a drug-testing facility, usually accompanied by a superior officer. There is no requirement that a union official, lawyer or other “buddy” accompany the officer, but so long as it does not delay the test, there is no harm in allowing the officer to be accompanied. The chief should make it clear that refusal or delay will be treated as insubordination and termination will be recommended.
Please, do not make the mistake of including a “rehab” requirement in a collective bargaining agreement for officers using, selling or otherwise involved in illegal drug activity. It is better to have no drug testing clause than to have one that waters down a chief’s ability to enforce a zero tolerance policy.
MUTUAL AID AGREEMENTS
Just as I recommend with each police department’s Inventory Policy, Chiefs should be sure that every District Court Clerk/Magistrate and Superior Court Clerk of Courts has a copy of any applicable Mutual Aid Agreement on file. Otherwise, an officer may have difficulty establishing the existence of such agreement when challenged during a court case. A judge will not take “judicial notice” of either document, cannot rely solely on an officer’s recollection, and must be able to review the document during any trial when challenges are made by defense counsel. A certified copy, attested to by the city or town clerk, is the best way to proceed.