Management Rights - AELE's Home Page

Appointments 7-4
In both Boston School Committee, 23 and Town of Lee, 24 the LRC upheld the
imposition of a residency requirement on all new hires as a condition of
hire. As a condition of hire, it only pertained to applicants who, as
potential or prospective employees, are not members of the bargaining
unit. Similarly, in Star Tribune, 25 the National Labor Relations Board
(NLRB) held that requiring drug and alcohol tests of all applicants was
outside the scope of bargaining. In City of Haverhill, 26 the LRC held that
an employer could impose a qualification that all applicants undergo a
psychological exam as a condition of being hired. In each of these cases,
the key inquiry was whether or not the qualification was imposed on
applicants or employees; so long as the qualification only affected
applicants, they were upheld.
PRACTICE POINTERS
While the distinction between applicant and employee seems clear, there is
one nuance of which employers should be aware. Any qualifications or
conditions of hire must be imposed and decided before the person is hired,
even if only conditionally.
While whether a person meets the qualifications such as college degrees,
CPR training, etc., can be decided immediately, some qualifications often
take longer to consider. Where such a delay occurs, and the employer
chooses to conditionally-hire the applicant, permitting the person to work
pending the confirmation of a qualification, the LRC will likely consider the
person an “employee” and require the employer to bargain over that
qualification. Psychological testing which was not given until after an
employee started work is such an example. 27 Where the results are not
known or the test is not even administered until after the person was put
to work, the qualification actually becomes a condition of continued
“employment”, not a condition of “hire”.
Attention should also be paid to the requirements of various federal and
state anti-discrimination laws. For example, the Americans With
Disabilities Act (ADA) (and presumably G.L. c.151B) precludes medical and
psychological illness testing until a conditional offer of employment is
made.
§ 2 ENTRY-LEVEL WAGES
Unlike establishing qualifications for applicants, establishing wages for
entry-level employees is a mandatory subject of bargaining. 28 Wages,
because they are earned after an applicant becomes an employee and a
member of the bargaining unit, must be negotiated if the union so
requests. 29 An employer may not unilaterally decrease or increase the
Commonwealth of Massachusetts