Massachusetts has adopted an "Act Relative to Domestic Violence" that requires Massachusetts employers with 50 or more employees to provide employees up to 15 days of leave in any 12-month period for issues concerning domestic violence. This portion of the act went into effect when signed by Gov. Deval Patrick on August 8.
An employee is eligible for leave if the employee, or a family member of the employee, is a victim of abusive behavior and the employee is using the leave from work to:
Where there is no imminent danger to the health or safety of the employee or family member, the employee must provide "appropriate advance notice of the leave to the employer as required by the employer's leave policy." Advance notice is not necessary when imminent danger does exist, but the employee (or certain proxies such as family members, social workers, etc.) must provide such notice to the employer within three workdays after taking leave. Leave may be paid or unpaid, at the discretion of the employer, and the employee may be required to exhaust any annual leave, vacation, personal leave and sick leave prior to taking domestic violence leave.
Employers may require employees to provide documentation evidencing the need for leave, such as copies of protective orders, police reports, medical documentation of the abuse, and sworn statements from the victim or others who have assisted the victim in addressing the effects of the abusive behavior. The employer cannot, however, require the employee to show evidence of an arrest, conviction or other law enforcement documentation of the abuse. In the case of an unscheduled absence, the employer may not take negative action against the employee if he or she provides appropriate documentation within 30 days following the unauthorized absence. Any documentation provided to the employer must be kept confidential and may be maintained for only as long as necessary for the employer to make a determination as to whether the employee is eligible for leave.
Upon return from domestic violence leave, the employee must not lose any employment benefit accrued prior to taking such leave, and the employee is entitled to return to his or her original job or an equivalent position. The law further prohibits discrimination or retaliation against any employee exercising rights under the statute.
The Attorney General is tasked with enforcing this section and may seek injunctive or other equitable relief. Additionally, an employee may bring a private action in court, where attorney fees and treble damages are available. The Attorney General's office has stated that it intends to issue guidance on the act (but has not yet done so).
Employers subject to the act must notify each employee of his or her rights and responsibilities under the law. Thus, we recommend that employers review and amend their employee handbooks and similar communications to alert employees to their rights. Employers should also consider training managers and human resources professionals to ensure compliance with these new leave requirements.
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Heather Weine Brochin and Gregory Tabakman authored an article entitled "Third Circuit Advises that Employer Must Pay Employees for Short Rest Breaks," which was published by the New Jersey Law Journal.
Day Pitney partner Francine Esposito will speak at the upcoming webinar "Workplace Leave Laws: Strategies to Navigate the Changing Landscape in the U.S." Taking place on Sept. 14 at 2 p.m., the webinar is the first in a series of webinars hosted by the Employment Law Alliance (ELA) on workplace leave laws around the globe.
Day Pitney associate Arianna Mouré was featured in an article, "Practicing Law and Contributing to the Greater Good," published in the Fall/Winter 2018 edition of the Rutgers University School of Arts and Sciences Access Newsletter.
John McLafferty was quoted in an article, "Employment Lawyers Leery of Bill Banning NDAs, Arbitration," published by Massachusetts Lawyers Weekly.
Heather Weine Brochin was quoted in an article, "Confidentiality Disqualifies Harassment Settlement Tax Deductions," published on the Society for Human Resource Management (SHRM) website.
John McLafferty was quoted in an article, "How Employers' Haunted House and Fright Night Went Way Wrong," published on the Society for Human Resource Management (SHRM) website.