Last month, the Supreme Judicial Court (SJC) interpreted the Domestic Violence and Abuse Leave Act, M.G.L. c.149, §52E, for the first time since its enactment in 2014. In doing so, the SJC adopted an expansive reading of the statutory text and set forth the prima facie elements of a claim for retaliation under the Act. The case, Osborne-Trussell v. The Children’s Hospital Corporation, is a critical read for Massachusetts employers, including especially cities and towns.
The Act applies to Massachusetts employers, including municipalities, with 50 or more employees. It requires that an employer provide up to 15 days of job-protected leave in any 12-month period when the employee or a family member is a victim of abusive behavior. This leave may be paid or unpaid, but must be used for a purpose related to the abusive behavior, such as to obtain legal services, meet with police, or receive medical care. An employer cannot interfere with the employee’s attempt to exercise the right to take leave and cannot take an adverse action against the employee for exercising these rights. In turn, employees are required to provide their employer with appropriate advance notice of the leave, unless there is a threat of imminent danger.
In the lawsuit, Osborne-Trussell alleged that she had obtained a harassment protective order because she was the victim of domestic violence. A few months after obtaining the order, she applied for a position as a nurse with Boston Children’s Hospital. She participated in several interviews and went through checks of her personal and professional history. She received a conditional offer of employment based on successful completion of a variety of background and licensure checks and other requirements and was issued a photo ID and training schedule.
Meanwhile, her abuser violated the protective order by posting about her on social media and tagged the hospital in the post. Osborne-Trussell reported the violation to the police and then contacted HR to explain that the tag was a violation of a protective order (which she provided) and told HR that she was working with the police to enforce it. She never told the hospital that she was invoking her rights under the Act or requested leave pursuant to the Act. HR told her that it would speak to the abuser to hear the abuser’s side of the story. Two weeks later, the hospital rescinded the offer of employment.
The Act defines employees as “individuals who perform services for and under the control and direction of an employer for wages or other remuneration.” The hospital argued that the Act did not apply to Osborne-Trussell because she was not an “employee” as she had not yet started to work. Additionally, the hospital argued that, even if she was an employee, because she did not ask for time off in connection with her discussion about enforcing the protective order, she did not provide adequate notice.
The SJC disagreed with both arguments. The SJC held that even though Osborne-Trussell had not “performed services” for the hospital and was not yet under the hospital’s “control or direction”, the Act applied to her because the legislature did not intend that the Act apply only to current employees. As a remedial statute intended to “address misdeeds suffered by individuals,” it should not be read to apply only to current employees, the SJC concluded, and the Act therefore applies to employees who have been hired but not yet commenced work.
The statute also requires that, except in emergency situations, the employee must give “appropriate advance notice” of the need for leave from work to seek or obtain certain assistance enumerated in the Act. The SJC held that Osborne-Trussell provided the hospital appropriate notice that she may in the future require leave under the Act when she told HR that she was working with the police to enforce the protective order. It is not necessary for an employee to state explicitly, “I require leave.”
Finally, the Court adopted analogous provisions of the federal Family and Medical Leave Act and other statutes conferring protection to employees to the elements to establish a prima facie case of retaliation under the DVLA. “[A]n employee must allege that (1) the employee availed him- or herself of a protected right under the DVLA; (2) the employee was adversely affected by an employment decision; and (3) there is a causal connection between the employee’s protected activity and the employer’s adverse action.”
As a result of this decision, employers should be aware that the Act applies to prospective employees who have received a firm or conditional offer of employment. Further, employers must be aware that an employee may be eligible for leave pursuant to the Act, even if the employee does not ask for leave, when the employee mentions domestic violence, domestic disputes, or harassment prevention orders. Like other laws governing the employment relationship, such as the Americans with Disabilities Act, an employee does not need to request leave explicitly in order for statutory protections to be implicated.