Reject employer efforts to restrict new-employee rights

State Representative Mike Sylvester on January 29 introduces LD 1959, An Act To Include within the Definition of “Public Employee” Those Who Have Been Employed Less than 6 Months. We support LD 1959 for equitable treatment for all of Maine’s public workers.

Testimony of Anne Macri
Maine Service Employees Association, SEIU Local 1989
Before the Joint Standing Committee on Labor and Housing
January 29, 2020, Cross Office Building 202
In Support of LD 1959

Senator Bellows, Representative Sylvester, members of the Committee On Labor and Housing, my name is Anne Macri, Deputy General Counsel, representing the Maine Service Employees Association, SEIU Local 1989. MSEA-SEIU is a labor union representing over 12,000 Maine workers. I am here today to testify in favor of LD 1959, An Act To Include within the Definition of “Public Employee” Those Who Have Been Employed Less Than 6 Months.

The purpose of Maine’s public sector collective bargaining laws is to promote the improvement of relationships between public employers and their employees by recognizing the right of public employees to join together in a union to bargain for better pay, benefits and terms and conditions of employment. Core to this is the right to stand together to protect the rights and benefits that have been won by previous generations of employees who filled the same positions. This purpose, we submit, is undermined by an outdated and arbitrary definition that excludes public employees who have been employed for less than six months.

At the outset, I want to be very clear about what this six month requirement is not – a contractual probationary period, where an employee may be terminated without just cause. Although in some cases, an employee’s initial probationary period overlaps with the time period at issue, this definition does not refer to probation and there is no requirement that the employee pass initial probation in order to qualify. Indeed, some employees covered by these statutes have only three-month probationary periods, while others may be subject to a twelve-month probation. The purpose of this bill is not to eliminate initial probation nor to extend the protection of just cause to employees who have not yet passed initial probation. The purpose, instead, is to eliminate an arbitrary distinction between employees that has allowed public employers, including Maine’s Executive Branch, to argue that new employees have no rights under the contract—including the contractual right to work in workplace free from unlawful discrimination.

We have numerous examples of employees in their first six months who have raised significant concerns about disability, age, or gender discrimination, only to suddenly be told that their performance is subpar and unceremoniously terminated. Because the State takes the position that the employees are not covered by the contract, the employees are denied union representation at the time of their dismissal, and the State refuses to acknowledge any grievances filed by the union on the employees’ behalf. Moreover, the State refuses to provide the union with any information about either the employees’ complaints or the alleged performance issues that led to their termination. In this way, employers shield arguably inappropriate behavior solely because the employees subject to it are new. As a result, we have no indication that the complained-of discrimination was ever investigated or whether there was any valid, non-pretextual basis for the termination. Accordingly, this statutory distinction can be used as a shield for public employers to protect supervisors who engage in discrimination or harassment.

The sole recourse in these circumstances is for the individual employee to retain outside counsel to bring a human rights complaint – which is often cost-prohibitive for an employee who has just lost their job.

Notably, there is no analogous definition under private sector labor law, where employees are regularly subjected to contractual probationary periods where they may be terminated without just cause, but they are still protected by contractual prohibitions on discrimination and still have the right to union representation. Nor are there analogous provisions under the Maine Human Rights Act or the Maine Whistleblower Protection Act. Indeed, the State’s University Employees Labor Relations Act does not have the same six-month exclusion from coverage.

This arbitrary distinction regarding new employees negatively impacts employees in other respects as well. Employers can and do deny new employees certain benefits, not based on any determination that these employees should not enjoy these benefits, but because the employers feel they can, because they argue that the employees’ unions cannot enforce their contract on their behalf.

Last summer, MSEA and the Executive Branch negotiated the first paid parental leave provision in our contracts covering our four Executive Branch bargaining units. The language in that provision is quite straightforward and provides for two weeks of paid parental leave, beginning on and directly following the birth or adoption of a child or children. Early last fall, after the contracts had been ratified, however, we heard from multiple employees in bargaining unit positions that they had been told they would not be eligible for parental leave because they were in their first six months of employment. When we raised this question to the State’s Director of Human Resources, we were told that while some benefits, like sick and vacation leave, are provided to employees in their first six months by Civil Service rules, benefits negotiated by contract such as bereavement leave and parental leave are not. The State took the position that the employees’ eligibility for these benefits is not based on whether their position is covered by the collective bargaining agreement but, instead, on this definition in state labor law. In other words, different employees doing the same work can have different eligibility for benefits, even when they are both in a position covered by the same contract, based on how long they have been employed. This dilutes the purpose of collective bargaining laws and undermines the strength of our contracts by allowing employers to treat some employees differently for utterly arbitrary reasons.

As a result, employees who were led to believe that they were entitled to these benefits, in some cases by HR personnel who were later corrected, were unable to access them, due solely to their short tenure. One employee was two months into their state employment when their child was born and because they were unable to access these benefits, they had to rely on paid holidays and exhaust all the leave that they had accrued in order to be able to take a single week off to spend with their new child. That employee had decided to accept a State position in part because of the availability of paid parental leave. Another employee was able to take two weeks off anyway, but nearly all of that time was unpaid because they were deemed ineligible for the contractual benefit because they had only been employed for approximately four months at the time.

We filed a grievance on the denial of these employees’ eligibility for paid parental leave; the Chief Counsel for the State’s Office of Employee Relations refused to accept the grievance, despite having accepted other class actions filed at a similar level, arguing that no valid grievance could be filed on behalf of an employee or group of employees who had been employed for less than 6 months. The State has never argued that there was an operational or substantive reason why these employees should not be eligible for this benefit; the entirety of their position is based on their position that MSEA is legally unable to enforce that contractual provision on behalf of these employees.

Again, we ask for your support of this bill. Upon passage, new employees will remain subject to a contractual probationary period, during which they will have no just cause protections and may be terminated for any legal reason. However, they will gain the statutory right to union representation, in addition to the ability to enforce their contractual rights through the grievance and arbitration process.

Updated: January 30, 2020 — 2:03 PM