Massachusetts Attorney General Issues Guidance on Domestic Violence Leave Act

What guidance has the Attorney General provided about the DVLA?

In October 2014, the Massachusetts Attorney General’s Fair Labor Division issued guidance under the DVLA. The guidance is available here. The guidance consists of an Advisory, a summary of the rights and responsibilities of employees and employers and a form to use for filing complaints with the Attorney General. The Advisory confirms the DVLA’s basic requirements.

What employers and employees are covered by the DVLA?

Employers with 50 or more employees are covered by the DVLA. All employees of covered employers are eligible regardless of their hours of work or period of service.

What behavior triggers leave rights?

DVLA leave rights are available based on circumstances arising from “abusive behavior.” Abusive behavior includes “domestic violence,” which means “abuse” (including physical harm or threats of serious physical harm, as well as mental abuse and other conduct) by an individual who has or had any of various forms of relationships with the employee or the employee’s family member. Abusive behavior also includes certain conduct by persons without any past or present relationship with the employee or family member, specifically stalking, sexual assault or kidnapping.

In what circumstances may an employee take a DVLA leave?

An employee may take DVLA leave if the employee or a family member is the victim (and not the perpetrator) of abusive behavior. The leave may be taken to:

• seek or obtain medical attention, counseling, victim services or legal assistance;
• secure housing;
• obtain a protective order from a court, appear in court or before a grand jury, or meet with a district attorney or other law enforcement official; or
• attend child custody proceedings; or
• address other issues directly related to the abusive behavior.

How much leave may an employee take?

An employee may take up to 15 days of DVLA leave in any 12-month period. The employer may require the employee to exhaust all vacation, sick and personal leave before beginning the 15 days. Neither the DVLA nor the Advisory is clear regarding whether “any” 12-month period means a rolling 12 months and/or a fixed 12-month period.

Is DVLA leave paid?

DVLA leave is not paid unless an employer elects to pay for it.

How does DVLA leave interact with other leave rights?

An employer may require that employees exhaust any applicable leave rights, such as vacation, personal leave or paid sick leave before beginning to use DVLA leave. This does not mean that all paid sick leave may be used for DVLA purposes, but under the new Massachusetts law on earned paid sick time, an employee may use paid sick time that is earned under the new law to address the psychological, physical or legal effects of domestic violence.

The DVLA does not address interaction with the Family and Medical Leave Act (“FMLA”). Under the FMLA, the fact that a leave may be protected under state law does not increase or diminish FMLA rights. Therefore, if DVLA leave also qualifies as leave for FMLA purposes (e.g., obtaining counseling in some circumstances), it will constitute the use of FMLA leave for the purpose of counting available FMLA leave. However, most forms of DVLA leave would not qualify as FMLA leave, and therefore will not affect the time available for FMLA leave.

What notice obligations does an employer have?

Employers of 50 or more employees are required to notify employees of their rights and responsibilities, including notification requirements and confidentiality. The Attorney General’s Advisory confirms that this requirement may be satisfied by including it in an employee manual or in memos, letters or emails to employees. The Advisory also refers to posting of a notice of rights, although the DVLA does not expressly require posting. A link to a sample notice is here.

What notice does an employee need to provide?

Generally speaking, an employee who takes DVLA leave must provide the same notice that the employer requires for other types of leave. However, in a situation involving imminent danger, advance notice is not required. In that case, the employee has three business days within which to provide the notice.

What documentation may be required to support the absence?

An employer may require an employee to provide documentation within a “reasonable period.” The documentation may be a sworn statement of the employee or an appropriate professional who has assisted the employee, a court order, a letter from a court or public agency, a police report, or documentation of medical treatment for the abusive behavior. A detailed list of the permissible forms of documentation is included in the Attorney General’s Advisory.

What restrictions apply to an employer’s retention of documents?

An employer may retain DVLA leave documentation as part of the employee’s employment records only for so long as required to determine whether the employee is eligible for DVLA leave. After that, if it is retained, it should be kept in a separate location. At all times, employers must keep the documentation concerning DVLA leave 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.

What rights do employees have to pay, benefits and restoration?

Employees who take DVLA leave may not lose any “employment benefit” accrued prior to the leave. Upon the employee’s return from leave, an employer must restore an employee to the employee’s original job or to an equivalent position.

In addition, if an employee takes an unscheduled absence, he or she may avoid discipline for the absence by providing any of the forms of documentation supporting the absence within 30 days of the absence. It is not clear from the DVLA or the Advisory whether providing such documentation precludes discipline even if the employee failed to satisfy the DVLA’s notice standards.

What are the consequences of a violation of the DVLA?

Employers may not interfere with an employee’s exercise of DVLA leave, except to require notice and documentation as provided in the DVLA, and may not discriminate or retaliate against an employee for exercising such leave.

Aggrieved current or former employees must first file a complaint under the DVLA with the Massachusetts Attorney General. Ninety days after filing the complaint, or sooner if the Attorney General assents, employees may sue employers under the DVLA and obtain the value of any lost wages and benefits due to the employer’s violation of the DVLA, injunctive relief, and mandatory treble damages, attorneys’ fees and costs. (The DVLA affords employees these remedies by incorporating the remedial provisions of the Massachusetts Wage Act.) The Attorney General also may enforce the DVLA and in so doing may seek injunctive and equitable relief.