E-Alerts

Massachusetts Employers Must Now Provide Domestic Violence Leave

[December 11, 2014]  Employers with 50 or more employees in Massachusetts are now required to provide domestic violence leave to these employees under a new law entitled “An Act Relative to Domestic Violence.” The office of the Massachusetts Attorney General (“AG”), which is responsible for enforcing the new law, has published an Advisory and related materials to assist both employers and employees in understanding their rights and obligations.

An employer that violates the domestic violence leave law will face stiff sanctions, including a mandatory award of triple damages and attorneys’ fees. Thus, employers should carefully review the statute and the AG’s materials and take any steps needed to ensure compliance.

Requirements Of The New Law

The Massachusetts domestic violence leave law, which is now in effect, includes the following provisions:

• Employees of covered employers may take up to 15 days of leave in any 12-month period for activities related to an employee’s (or an employee’s close family member’s) being a victim of domestic violence. Perpetrators of domestic violence are excluded from protection under the new statute.
• Activities for which domestic violence leave may be taken include (but are not limited to) seeking medical attention or legal services, securing housing, and attending court proceedings.
• Employers may grant domestic violence leave on a paid or unpaid basis, at their discretion. Employees may be required to exhaust any accrued paid time off before taking unpaid leave under the statute.
• With limited exceptions, employees must give their employers advance notice of their intention to take domestic violence leave.
• An employer may require an employee taking domestic violence leave to submit appropriate documentation, such as medical records, a police report, or a sworn statement by a counselor, social worker, or other professional who has assisted in addressing the effects of the domestic violence.
• Employers must notify employees of their rights and responsibilities under the law and keep leave-related information disclosed to them confidential.
• An employee who takes domestic violence leave is entitled to be restored to his or her job (or an equivalent position) and may not be subjected to retaliation for taking leave.

AG’s Advisory And Related Materials

While implementing regulations have not yet been issued, the AG recently released (i) an Advisory detailing major aspects of the new law; (ii) a model five-page complaint form that an employee may use to notify the AG of an employer’s alleged violation of the statute; and (iii) summaries of employers’ and employees’ rights and responsibilities under the new law.

Most notably, the Advisory confirms the AG’s interpretation that the new law applies only to employers that employ 50 or more employees in Massachusetts. Thus, unless and until a court interprets this aspect of the statute differently, an employer with fewer than 50 employees in the Commonwealth is not required to provide domestic violence leave under the statute, regardless of the size of its overall workforce.

The Advisory also explains that there is no specific manner in which employers must comply with their obligation to notify employees of their rights and responsibilities under the law. However, the Advisory suggests that employers do so through employee handbooks, memos, letters, or e-mails to employees.

Finally, the model complaint form includes spaces for an employee to provide information to the AG’s office about such matters as (i) the domestic violence incident(s) giving rise to the need for leave; (ii) whether the employee provided advance notice of the requested leave and any supporting documentation requested by the employer; and (iii) how, specifically, the employee believes his or her employer violated the law.

Enforcement Of The Statute

The domestic violence leave law authorizes the AG’s office to seek injunctive or equitable relief against employers that violate it. In addition, an employee may file a civil action for damages after filing a complaint with the AG’s office and waiting 90 days (or a shorter period of time, if the AG’s office assents). As with other wage and hour violations in Massachusetts, employees who prevail in civil actions under the new law are entitled to mandatory triple damages and attorneys’ fees.

Recommendations For Employers

In light of the new Massachusetts domestic violence leave law, we recommend that employers covered by the statute take the following steps:

• Carefully review the new statute and the related materials issued by the AG;
• In consultation with experienced employment counsel, update their current policies and practices regarding leaves of absence to ensure compliance with the statute; and
• Closely monitor further developments in this area, including regulations expected to be issued under the new law.

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Please do not hesitate to contact us if you have any questions about the Massachusetts domestic violence leave law and its potential implications for employers.