The Supreme Judicial Court’s Decision in Beacon Residential v. R.P. Gives Survivors of Domestic Violence Their Day in Housing CourtPosted: October 26, 2017
by Julia Devanthéry
The link between domestic abuse and housing instability is undeniable; survivors often face housing loss as a direct result of abuse or find themselves homeless after fleeing violence. In an all-too-common scenario, a survivor lives with her abuser, but is not on the lease because the abuser intentionally withholds housing stability as a method of abuse. In those cases, survivors may have to choose between their safety and their housing if they decide to separate from their abusers. Now, however, under the Supreme Judicial Court’s (“SJC”) recent decision in Beacon Residential v. R.P., survivors of domestic violence—including those who aren’t on the lease and are alleged to be “unauthorized occupants” by the landlord—are allowed to intervene as of right in summary process cases under Mass. R. Civ. P. 24 (a)(2) if they claim an interest relating to the apartment subject to the eviction proceedings. Beacon Residential Management, LP v. R.P., SJC-12265, slip op. (Sept. 14, 2017). As a result, thousands of survivors across the Commonwealth, formerly excluded from summary process cases, will have a right to their day in Housing Court.
In Beacon, the proposed intervener testified that she was a survivor of domestic violence who lived with her abuser, who was her husband, and their children in a federally subsidized apartment that was leased in the husband’s name. Although she lived at the apartment, she testified that her abusive partner prevented her from being added formally to the lease. The landlord’s witness testified that the landlord’s policy was to give an “add-on” application to all who inquired and that if the survivor in this case applied, she would have been added so long as she qualified and the husband approved. However, the survivor was not given an application when she asked for one; rather, she was told only her husband could add her to the lease. He, she testified, refused to do so as a means of controlling her. When the mother obtained a G.L c. 209A restraining order against her husband (which required him to leave the shared home and awarded custody of the two children to her), the landlord immediately initiated eviction proceedings against the family based on the mother’s “unauthorized” status at the unit.
The abuser failed to attend the summary process trial and was defaulted. The mother attended the hearing and filed a motion under Mass. R. Civ. P. 24 to intervene both as of right and permissively along with a proposed answer and jury claim. She argued that she had a defense to the eviction under the Violence Against Women Act (“VAWA”), which prohibits evictions of qualified applicants for public housing based on the applicant being a victim of domestic violence, and G.L. c. 239, §2A, which prohibits retaliation against survivors who obtain restraining orders. The landlord opposed her intervention. The Housing Court judge denied her motion to intervene based on a finding that she would not be able to prevail on her defenses at trial. The mother then filed a new motion to intervene on behalf of her children, which was also denied.
The SJC’s decision in favor of the mother makes clear that at the intervention stage, a trial court’s inquiry should be limited to whether the proposed intervener has stated a plausible claim to the property, and that the judge should not reach the merits of the underlying claim until the trial. Beacon, slip op. at 7-11. In this case, the Court held that the proposed intervener stated a plausible claim to the apartment under VAWA and G.L. c. 239, §2A, and therefore she should have been allowed to intervene on behalf of herself and the children. Id. at 11-17. While the Court stressed that intervention does not guarantee success on the merits, it unambiguously held that the standard should be broadly applied to allow intervention when a litigant claims an interest in the property at issue in the eviction case. Id. at 17. In the wake of this groundbreaking decision, a greater number of survivors will now have access to justice in the Housing Court, and an opportunity to fight to save their homes.
Julia Devanthéry is a Lecturer on Law at the WilmerHale Legal Services Center of Harvard Law School. This article is an update of her recent article, Early Lease Termination Under G.L. c. 186, § 24: An Essential Escape Route for Tenants Who Are Facing Domestic Violence, Sexual Assault, or Stalking, 61 Boston Bar Journal (Summer 2017). In the case discussed here, Ms. Devanthéry filed an amicus brief with the Supreme Judicial Court in support of the survivor.
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.
by J.D. Smeallie
At a dinner last March, I sat next to the Editor in Chief of American Lawyer. I told him that I would soon be the president of the Boston Bar Association and that one of the perks was the opportunity to create an initiative for my year as president. I then ran by him some of the initiatives I was considering. When I got to the topic of civil legal aid, he stopped me and said there is nothing more important that a bar association can do than to fight for civil legal aid for those in need. His passion on this point resonated with me, and I knew then that the advancement of civil legal aid would be my cause during my upcoming term as president.
Shortly thereafter, the Chief Judge of the State of New York gave a speech at Harvard. He spoke of a task force that he had created to expand civil legal aid. The task force was comprised of a statewide group of lawyers, judges, business leaders, academics, union leaders and legal aid attorneys. What struck me most about their effort was how they demonstrated that increased state funding for civil legal aid actually saved the state money, while bringing in increased federal aid. The New York task force’s report was so persuasive in this regard that the state legislature there agreed to increase legal aid funding from $200 million to $300 million over a four year period.
For the past several months, I have visited with state legislators, bar leaders, legal aid attorneys, business leaders and other stakeholders to discuss the creation of a similar statewide initiative in Massachusetts. Without exception, those with whom I met acknowledged the problem. With federal funding of the Legal Services Corporation constantly shrinking, and IOLTA funding all but drying up, overall funding for civil legal aid has been on the decline in Massachusetts for years. At the same time, the need for representation in matters involving basic human needs like housing, prevention of domestic violence, and health care has been on the rise. In 2012, fully half of the people eligible for civil legal aid in Massachusetts had to be turned away because staffing at legal aid agencies had been slashed. As a result, poor people have to navigate our judicial system without the benefit of counsel. The situations in our Housing Courts and Probate and Family Courts are particular bleak. 95% of those who appear in the Housing Court are unrepresented. The percentage is not much better in the Probate and Family Courts. There, 80% of the litigants do not have a lawyer.
All of those with whom I have met agree that a statewide initiative to examine the unmet need for civil legal aid across the state and to determine the most cost effective way to meet that need is a good idea. We are lucky to have the benefit of the good work already undertaken by our Access to Justice Commission, and we do not intend to repeat their efforts to provide help to unrepresented litigants. We do expect to follow the lead of the New York task force and examine whether increased funding for civil legal aid can save the state money in the costs of homelessness, domestic violence prevention and various forms of aid which can be replaced by federal benefits, as was found to be the case there.
So, a BBA task force, named the Statewide Task Force to Expand Civil Legal Aid in Massachusetts, is now taking shape. Among those who have agreed to serve on the task force are the general counsels of five major Massachusetts based companies, a former president of one of our major universities, our Attorney General, the Governor’s Chief Legal Counsel, the managing partner of one of our largest law firms, and the current President of the Massachusetts Bar Association. We anticipate adding leaders from the legal aid community, state Representatives and Senators, and a union representative. We expect to complete our work and present a report in the spring of 2014.
Our system of justice is measured by how we treat those most in need, but we are not measuring up at the moment. If the experience in New York is indicative of what we may find and recommend here, the hope is that we can to reverse the trend and to begin to expand civil legal aid for our state’s poorest citizens, while saving the state money in the process.