On August 8, 2014, Governor Patrick signed into law “An Act Relative to Domestic Violence.” The law, passed in the wake of the brutal murder of Jennifer Martel by Jared Remy, focuses primarily on criminal justice system reform in the area of domestic violence. It also, however, creates Section 52E of Chapter 149 of the General Laws, which requires covered employers to provide up to 15 days of job-protected leave to an employee who, or whose family member, is a victim of “abusive behavior,” including domestic violence.
Who Is A Covered Employer?
The law, which became effective immediately, applies to “employers who employ 50 or more employees.” An Advisory from the Office of the Attorney General (“OAG”) states that the 50 employees must be “in Massachusetts.”
Who Is A Covered Employee?
The statute defines an “employee” as any individual who performs services for and under the control and direction of an employer for wages or other remuneration. Unlike other federal and state leave laws, there is no required minimum hours of service or length of employment for eligibility. It is unclear whether the employee must live and/or work in Massachusetts. In the wage-and-hour context, Massachusetts courts have applied Massachusetts law to certain individuals living and working outside of the Commonwealth. See, e.g., Taylor v. Eastern Connection Operation, Inc., 465 Mass. 191 (2013) (individuals living and working in New York could bring wage-and-hour claims where the written employment contract called for the application of Massachusetts law); Dow v. Casale, 83 Mass. App. Ct. 751 (2013) (Florida resident could bring a Massachusetts Wage Act claim where employer was headquartered in and there was a substantial connection between the employment relationship and Massachusetts).
When Is An Employee Entitled To The Leave?
An employee is entitled to the leave when the employee or a “family member” (which is broadly defined) is the victim of “abusive behavior” and the purpose of the leave is to address issues related to the abusive behavior. “Abusive behavior” is any behavior constituting “domestic violence,” stalking, sexual assault or kidnapping. “Domestic violence” is “abuse” directed against an employee or his or her family member by a current or former spouse; a relative by blood or marriage; a person with whom the employee or the family member shares a child; a current or former cohabitant of the employee or the employee’s family member; or a person with whom the employee or family member had a dating or engagement relationship. “Abuse” encompasses a wide range of conduct, such as causing or attempting to cause physical harm, forced sexual activity, mental abuse, and restraint of liberty. An employee is not entitled to the leave if he or she is the alleged perpetrator of the abusive behavior.
The employee must use the leave to address issues relating to the abusive behavior. The statute provides a non-exhaustive list of permissible reasons for a leave, which includes to seek medical treatment, counseling, victim services or legal assistance; to secure housing; to appear in court or obtain a protective order; to meet with law enforcement officials; and to attend child custody proceedings.
A covered employee is entitled to up to 15 days of leave in any 12-month period. The employer has sole discretion as to whether the leave is paid or not. Regardless, an employee must exhaust all paid leave, such as vacation or sick time, before using the new statutory leave unless the employer waives this requirement.
How Must An Employee Request Leave?
An employee must provide advanced notice of the need for a domestic violence leave unless there is a threat of imminent danger to the employee or a qualifying family member. In such case of emergency, notice may be provided within three workdays of the leave, and may be provided by either a family member or a professional assisting the employee.
An employer may require documentation supporting the need for a domestic violence leave. Qualifying documents include a protective order, a court or public agency letter, a police report, medical records, witness statements, or a sworn statement by either a professional or the employee. An employer may not require documentation of an arrest, a conviction or a police report. In general, documentation must be supplied within a reasonable time after it is requested by the employer. If, however, the absence is unscheduled (such as when there is a threat of imminent danger), an employee has thirty days from the last unauthorized absence to supply sufficient documentation before he or she may be disciplined.
What Are Employers’ Obligations Under The Statute?
An employer must allow an eligible employee to take the requested leave, and is prohibited from discharging or discriminating against an employee for exercising his or her statutory rights. Employers also may not coerce, interfere with, restrain or deny the exercise of any rights under the statute. When an employee returns to work, the employer must reinstate the employee to his or her original job or an equivalent position. Moreover, the statute imposes strict confidentiality obligations on an employer and permits disclosure of information relating to a leave only under limited circumstances. Covered employers must notify employees of their rights under the statute. The OAG has not mandated a particular manner or form for such notice.
What Are The Enforcement Provisions?
The OAG is empowered to enforce the law and may seek injunctive or other equitable relief. The Fair Labor Division has developed a form for employees to report an employer’s failure to provide leave under the statute.
Employees may also bring a private civil action. The law amended the Massachusetts Wage Act, G.L. c.149, §150, to include claims relating to domestic violence leave. As a result, a plaintiff who establishes a violation of the domestic violence leave law is entitled to automatic treble damages for any lost wages or other benefits, and reasonable attorneys’ fees.
What Are Some Best Practices for Employers?
The new domestic violence leave law creates challenges for employers. Most importantly, employees seeking leave may need to disclose to their employer information that is highly personal and that involves difficult and potentially life-threatening situations. Employers may not want to know the details of the employee’s situation and thus may decline to request supporting documentation. Further, many employers may need to revise the way in which they address employee absences to ensure that requests for domestic violence leave are treated with sensitivity and confidentiality. Finally, employers may want to maintain a written policy regarding domestic violence leave. In addition to notifying employees about whether the leave is paid or unpaid, the policy might address whether employees will need to exhaust paid leave first and might designate an employee as being responsible for processing leave requests.
Robert A. Fisher is a partner in the Labor and Employment department of Foley Hoag LLP. Rebecca Sivitz is an associate in the Labor and Employment department of Foley Hoag LLP.