Massachusetts Supreme Judicial Court Analyzes State's Domestic Violence and Abuse Leave Act
Court Opinion Broadly Interprets Non-Retaliation and Non-Interference Provisions of DVLA
- The Massachusetts Supreme Judicial Court (SJC) on Aug. 25, 2021, issued an opinion interpreting the Massachusetts Domestic Violence and Abuse Leave Act (DVLA) for the first time since its enactment in 2014.
- In Osborne-Trussell v. Children's Hospital Corporation, the SJC applied a broad view of the non-retaliation and non-interference provisions of the DVLA.
- In the wake of this decision, employers who know that an employee, or an employee's family member, is experiencing issues relating to domestic violence or abuse should consider themselves on notice that the protections of the DVLA apply to that employee.
The Massachusetts Supreme Judicial Court (SJC) on Aug. 25, 2021, issued an opinion interpreting the Massachusetts Domestic Violence and Abuse Leave Act (DVLA) for the first time since its enactment in 2014. The SJC applied a broad view of the non-retaliation and non-interference provisions of the DVLA.
The DVLA requires employers with 50 or more employees to provide up to 15 days of unpaid, job-protected leave per year to Massachusetts employees who are victims of domestic violence and require leave to address issues related to abusive behavior. DVLA leave may be used if the employee, or a family member of the employee, is a victim of abusive behavior, such as domestic violence, stalking, sexual assault and kidnapping. Employees may use the leave to address issues related to abusive behavior, including to seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order; appear in court; meet with law enforcement; attend child custody proceedings; or address other issues directly related to the abusive behavior.
Employers are prohibited by the DVLA from taking adverse action against, or otherwise discriminating against, employees who exercise rights provided under the law. The DVLA also prohibits employers from interfering with, restraining or denying an employee's exercise of, or attempts to exercise, the rights provided. The DVLA provides employees with a private right of action against employers who violate the DVLA by discriminating or retaliating against employees who exercise their rights under the DVLA, or who interfere with an employee's rights under the DVLA.
Recent SJC Decision
In Osborne-Trussell v. Children's Hospital Corporation, the SJC issued the first analysis of the DVLA's non-retaliation and non-interference provisions. The SJC decision broadly interprets the employer's responsibility not to retaliate or interfere with an employee's rights under the DVLA, even if that employee has not yet requested to take any leave or even started to work for the employer.
The plaintiff in Osborne-Trussell was a victim of abusive behavior, including repeated abuse, stalking, threats and harassment by her abuser, and had previously obtained a Harassment Prevention Order (HPO) that prohibited the abuser from directly or indirectly contacting her or making any social media postings that reference her. In February 2019, the plaintiff accepted an offer to begin working for the defendant employer on March 18, 2019. After the plaintiff accepted her job offer, on Feb. 28, 2019, her abuser posted threats and false statements about her on social media and tagged the new employer in the post, violating the terms of the HPO. The plaintiff reported the violation of the HPO to law enforcement and then contacted the employer's Human Resources Department (HR) and disclosed the existence of the HPO and her abuser's past abusive behavior. The plaintiff informed HR that she was pursuing enforcement of the HPO. Less than two weeks later, the employer rescinded her offer of employment, effective March 12, 2019 – one week before the plaintiff was scheduled to start work.
The plaintiff filed a lawsuit against the employer, alleging that her termination violated the DVLA and public policy, and that the employer rescinded her offer of employment to avoid having to offer her the protections of the DVLA. The plaintiff further alleged that the employer discriminated and retaliated against her for exercising her rights under the DVLA and interfered with her exercise of those rights.
The employer moved to dismiss the complaint on the grounds that the plaintiff was not an "employee" protected by the DVLA because she had not yet commenced her employment. The employer further argued that the plaintiff never provided the employer with notice that she was requesting leave under the DVLA or otherwise taking any statutorily protected actions. The trial court granted the employer's Motion to Dismiss, holding that although the plaintiff was an "employee" within the meaning of the DVLA, her complaint failed to allege that she sought leave from work to address issues relating to domestic abuse or engaged in other protected activity.
On appeal, the SJC revived the plaintiff's claims against the employer and remanded the case to Superior Court, holding that the plaintiff qualified as an employee under the DVLA and adequately pled a prima facie case of retaliation under the DVLA. The SJC unanimously held that the plaintiff qualified as an employee under the DVLA, even though she had not yet started work, because "[a] construction that excludes from the definition of 'employees' those who have accepted employment but have not yet begun work would be directly contrary to the clear intent of the DVLA to allow employees to attend to the consequences of the abuse without risking loss of their jobs …"
With even broader ramifications, the SJC held by a slim 4-3 majority that by simply telling the employer that her abuser had posted about her on social media in violation of the HPO and that she was in communication with police to enforce the HPO, the employer was on notice of the plaintiff's need for leave under the DVLA, and the plaintiff was therefore entitled to the DVLA's protections against retaliation and interference.
Although the plaintiff did not request time off or notify the employer that she required any leave, the SJC held that the plaintiff "provided the requisite 'appropriate' and 'advance' notice when she informed [the employer] that her abuser had violated the HPO and that she was cooperating with law enforcement in connection with enforcing it." This disclosure alone "was enough to put [the employer] on notice that, while the plaintiff did not then know of any specific date on which she would require leave, she might need to exercise the leave provisions of the DVLA and was invoking her rights to leave under it." In reaching this conclusion, the SJC equated the plaintiff's circumstances to a situation where an employee who tells her employer she is pregnant but does not make a specific request for leave under the Family and Medical Leave Act (FMLA) is still entitled to FMLA leave and protection against retaliation. In short, the SJC held that by notifying the employer about the HPO, the abuser's alleged violation and her actions to enforce the HPO, the plaintiff completed the conditions precedent to take leave under the DVLA and be afforded its protections against retaliation and interference.
In a dissenting opinion, Associate Justices Serge Georges Jr. and Frank Gaziano opined that the employee did not provide "appropriate advance notice" of any request for leave, as required by the DVLA, and therefore was not entitled to its protections against retaliation or unlawful interference. They noted that the employee's actions to enforce the HPO did not mean that the employee needed or intended to take any leave under the DVLA. The dissent also highlighted the differences between the DVLA, which requires appropriate advance notice of leave, and the FMLA, which provides protection for foreseeable leave conditions. Indeed, the FMLA regulations provide that notice of an FMLA-qualifying condition triggers the statutory protections, while there are no similar regulations applicable to the DVLA.
Conclusion and Key Takeaways
The SJC's recent decision provides an expansive interpretation of what constitutes sufficient notice to trigger the protections of the DVLA. In the wake of this decision, employers who know that an employee, or an employee's family member, is experiencing issues relating to domestic violence or abuse should consider themselves on notice that the protections of the DVLA apply to that employee. Under these circumstances, employers should carefully consider taking any action that could be interpreted as interference, or otherwise construed as discriminatory or retaliatory against that employee.
Employers should consult with counsel to handle these situations and minimize risk of exposure to claims under the DVLA. For more information about this topic, please contact the authors or your Holland & Knight attorney.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.