Employment Law Alert

Massachusetts Creates New Right to Job-Protected Leave for Victims of Domestic Violence

October 1, 2014

On August 8, 2014, Massachusetts Governor Deval Patrick signed into law an “Act Relative to Domestic Violence” (the “Act”).  The new law, which took effect immediately, creates a right to leave from employment for employees who are victims of domestic violence, and imposes on employers a duty to notify employees of their rights under the Act, a duty not to discriminate or retaliate against employees for taking leave under the Act, and a duty to restore employees to the employees’ original job or to an equivalent position upon their return from leave.

Who is Eligible for Domestic Violence Leave?

The Act requires that employers with 50 or more employees provide 15 days of unpaid leave in a 12-month period to employees who are victims of, or whose family members are victims of, “abusive behavior.”

“Abusive behavior” is defined by the Act as domestic violence, stalking, sexual assault or kidnapping.

“Domestic violence” is defined as abuse against an employee or the employee’s family member by: (1) a current or former spouse of the employee or the employee’s family member; (2) a person with whom the employee or the employee’s family member shares a child in common; (3) a person who is cohabitating with or has cohabitated with the employee or the employee’s family member; (4) a person who is related by blood or marriage to the employee; (5) or a person with whom the employee or employee’s family member has or had a dating or engagement relationship.

“Abuse” is defined as: (1) attempting to cause or causing physical harm; (2) placing another in fear of imminent serious physical harm; (3) causing another to engage involuntarily in sexual relations by force, threat or duress, or engaging or threatening to engage in sexual activity with a dependent child; (4) engaging in mental abuse, which includes threats, intimidation or acts designed to induce terror; (5) depriving another of medical care, housing, food or other necessities of life; or restraining the liberty of another

“Family member” includes: (1) persons who are married to one another; (2) persons in a “substantive dating” or engagement relationship and who reside together; (3) persons having a child in common regardless of whether they have ever married or resided together; (4) a parent, step-parent, child, step-child, sibling, grandparent or grandchild; or (5) persons in a guardianship relationship.

When Can Employees Take Domestic Violence Leave?

Employees may only use the leave for reasons which are directly related to the abusive behavior, including:

  • seeking or obtaining medical attention, counseling, victim services or legal assistance;
  • securing housing;
  • obtaining a protective order from a court;
  • appearing in court or before a grand jury;
  • meeting with a district attorney or other law enforcement official attending child custody proceedings; or
  • addressing other issues directly related to the abusive behavior against the employee or family member of the employee.

What Must Employees do to Take Domestic Violence Leave?

Notice
Employers may require that employees to give appropriate notice” before taking the leave, unless the employee or the employee’s family member is faced with an imminent threat of danger.  Where an imminent threat of danger is present, the employee or another person who has assisted the employee in addressing the abusive behavior (such as a family member or counselor) must notify the employer within 3 workdays of the date the leave is taken that the employee’s leave is taken pursuant to the Act.

Documentation
In the case of a scheduled leave, employers may also require that the employee submit documentation, including copies of court documents, police reports, medical documents and/or the victim’s sworn statement signed under pains and penalties of perjury, to support the claim for domestic violence leave.  If the leave is unscheduled, the employee can satisfy the employer’s documentation requirement by documentation to the employer within 30 days of the unauthorized absence or, in the case of a multiple-day absence, within 30 days of the last day of the multiple-day period of absence.  Employers must keep the documentation provided to them confidential except as ordered by a court, required in the course of a law enforcement investigation, authorized by the employee in writing, otherwise required by law, or as necessary to protect the safety of the employee or other employees.   

Exhaustion of Existing Leave
An employee who wishes to take domestic violence leave under the Act must exhaust any vacation, sick and personal time off prior to taking domestic violence leave, unless the employer waives this requirement.  The Act is silent concerning its interaction with the federal Family and Medical Leave Act (“FMLA”). 

What are Employers’ Obligations?

Employers may not interfere with an employee’s right to domestic violence leave, except to require notice and documentation as provided in the Act, and may not discriminate or retaliate against an employee for exercising such Leave.

Employers may not cause employees who use domestic violence leave to lose any “employment benefit” accrued prior to the Leave.  Further, upon an employee’s return from Leave, employers must restore employees to their original job or to an equivalent position. 

Employers also must notify employees of their rights and responsibilities under the Act.  The Act does not specify in what way employers must provide this notice.  However, employers should post a notice concerning the Act with other employment law notices.  Employers should also consider revising their handbooks to include such notice and/or providing a notice at the outset of an employee’s employment.

Enforcement, Treble Damages and Attorney’s Fees

The Act is enforced by the Massachusetts Attorney General’s office, which is authorized to seek injunctive and equitable relief on behalf of an aggrieved employee.  In addition, employees may bring private civil actions seeking injunctive relief, lost wages and benefits.  Importantly, because the Act incorporates the remedial provisions of the Massachusetts Wage Act, damages awarded in a successful civil action will include mandatory treble damages and attorney’s fees.

Employers may consult with a member of the Employment Law Group with questions about the Act or any other employment law matter

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