Massachusetts High Court Takes Broad View Of Employee Rights Under Domestic Violence Leave Act
The Massachusetts Supreme Judicial Court (“SJC”) recently articulated an expansive view of the Commonwealth’s Domestic Violence and Abuse Leave Act (“DVLA” or the “Act”), in its interpretation of who qualifies as an “employee” protected by the Act and what an employee must do to qualify for the Act’s protections.
In Osborne-Trussell v. The Children’s Hospital Corp., the SJC held that (i) an individual who has been offered employment need not have begun work in order to qualify for the DVLA’s protections; and (ii) an employee need not make an actual request for leave under the Act in order to state a claim for non-interference, discrimination and/or retaliation under the DVLA.
The Massachusetts DVLA
The DVLA, which became law in 2014, requires Massachusetts employers with 50 or more employees to provide up to 15 days of leave over a 12-month period when an employee or an employee’s family member is a victim of abusive behavior and the employee requests leave for purposes related to the abusive behavior – for example, seeking medical attention, counseling, or legal assistance; finding housing; or appearing in court. The DVLA’s protections do not apply to an employee who is the perpetrator of abusive behavior against a family member.
Except where there is a threat of imminent danger to the employee or the employee’s family member, employees are required to provide their employer with appropriate advance notice of the need to take DVLA leave. Leave under the Act is generally unpaid, though employees may use other applicable paid leave entitlements to receive pay during DVLA leave.
The DVLA prohibits employers from interfering with their employees’ attempts to use DVLA leave and from taking adverse employment action against employees for availing themselves of the Act’s protections.
The Osborne-Trussell Case
In December 2018, Kehle Osborne-Trussell (“Osborne-Trussell”), a registered nurse, applied for a harassment prevention order against her alleged abuser, claiming that she had been a victim of stalking, harassment, and threatening behavior. The harassment prevention order barred the abuser from “directly or indirectly contacting [Osborne-Trussell], ordered [the abuser] to remain away from [Osborne-Trussell’s] home or place of work, and prohibited [the abuser] from making any social media postings that reference [Osborne-Trussell].”
Soon afterward, in February 2019, Osborne-Trussell applied for employment with Boston Children’s Hospital. After interviewing Osborne-Trussell on multiple occasions, contacting her references, and ordering a background check, Children’s Hospital tendered Osborne-Trussell an offer of employment as a Staff Nurse in the Orthopedic/General Surgery Department. Osborne-Trussell accepted the offer. Her at-will employment offer letter referenced a salary and a start date and provided that her employment was conditioned on a number of factors, including, but not limited to, reference, background, and licensure checks, and a “fitness for duty assessment.”
In late February, after Osborne-Trussell had received her hospital identification badge, but before she had begun work for Children’s Hospital, her abuser allegedly posted threats and false statements about Osborne-Trussell on social media, tagging the Children’s Hospital account. Osborne-Trussell reported these violations of the harassment protection order to the Merrimac police department. She also informed Children’s Hospital’s Human Resources department about her abuser's past abusive behavior, provided Children’s Hospital with copies of the harassment prevention order, and told Children’s Hospital that “she was pursuing enforcement of the [harassment prevention order].” Children’s Hospital requested additional information about the abuser, and Children’s Hospital's human resources representative told Osborne-Trussell that he "intended to speak with [the abuser] to hear her side of the story."
Less than two weeks later, and about one week before she was scheduled to begin orientation, Children’s Hospital notified Osborne-Trussell that her “employment offer for the Staff Nurse position at Boston Children's Hospital has been rescinded effective March 12, 2019.” Children’s Hospital’s letter also stated that “the work clearance process is not able to be initiated, so we are unable to complete the onboarding process at this time.”
In response, Osborne-Trussell filed suit in Superior Court, alleging that Children’s Hospital had revoked her employment offer in order to avoid having to offer her the protections of the DVLA. Specifically, her complaint alleged that Children’s Hospital had violated the non-retaliation provision of the Act, as well as the provisions of the DVLA that prohibit employers from coercing, interfering with, restraining, or denying the exercise of rights provided under the Act.
A Superior Court judge granted Children’s Hospital’s motion to dismiss the complaint, holding that while Osborne-Trussell could be considered an “employee” under the DVLA, she had not stated a valid claim for non-retaliation or non-interference because she had never attempted to exercise her rights under the DVLA.
Osborne-Trussell appealed the decision of the Superior Court, and, on its own motion, the SJC transferred the case from the Appeals Court in order to rule on the issues at hand.
The Supreme Judicial Court’s Decision
In a 5-2 decision, the Supreme Judicial Court agreed with the lower court’s assessment that Osborne-Trussell was an “employee” within the meaning of the DVLA, despite her never having actually worked for Children’s Hospital and despite the conditional nature of Children’s Hospital’s offer of employment to Osborne-Trussell.
In so holding, the SJC assumed, for purposes of the motion to dismiss, that because Osborne-Trussell had been issued an employee identification badge and an employee identification number, she had fulfilled the contingencies of her offer of employment. The SJC then reviewed the DVLA’s legislative history and concluded that Osborne-Trussell qualified as an “employee” even though she had not begun working for Children’s Hospital. Because lawmakers framed the DVLA as a broad, remedial statute aimed at “increas[ing] the rights and protections of victims” of domestic violence, the SJC held that the Act was entitled to liberal construction.
However, the SJC disagreed with the portion of the Superior Court’s opinion that had held that in order to invoke the protections of the DVLA, an employee must make a formal request for DVLA leave. Children’s Hospital had argued that Osborne-Trussell’s claims of retaliation and interference under the Act should be dismissed because Osborne-Trussell had never notified Children’s Hospital that she required leave or requested time off for any particular date. The SJC rejected this argument, holding that Osborne-Trussell had fulfilled the DVLA’s advance notice requirement simply by notifying Children’s Hospital of a the existence of a condition that might trigger the need for leave in the future (i.e., that she was pursuing the enforcement of a harassment protection order against her abuser).
Recommendations for Employers
In light of the Osborne-Trussell decision, Massachusetts courts will take a broad view of the DVLA, premised on what the SJC identified as the statute’s broad remedial purpose of protecting the employment rights of victims of domestic violence. As a result, employers subject to the DVLA should audit their policies and practices to ensure that they are compliant with the statute.
If you have any question about the SJC’s decision in Osborne-Trussell, or any other aspect of the DVLA, please feel free to contact one of our experienced employment attorneys.