Massachusetts SJC Endorses Expansive Reading of the Domestic Violence and Abuse Leave Act

Last week, a divided Massachusetts Supreme Judicial Court (“SJC”) in Osborne-Trussell v. Children’s Hospital Corp. ruled in favor of a broad interpretation of the 2014 Domestic Violence and Abuse Leave Act (“DVLA”), a law that provides certain employment protections for victims of domestic violence, including a prohibition against retaliation for seeking or using protected leave. Specifically, the DVLA prohibits an employer from taking adverse action against, or otherwise discriminating against, an employee who exercises rights under the DVLA, such as taking leave from work to seek or to obtain medical attention or legal assistance, or to go to court hearings stemming from the harassment or abuse. The DVLA also prohibits employers from interfering with an employee's exercise, or attempted exercise, of these statutorily protected rights. For their part, employees are required to provide employers with “appropriate advance notice” of the leave associated with domestic violence and abuse.

The SJC’s decision interpreted, for the first time, two key components of the DVLA’s non-retaliation and non-interference provisions.  First, the SJC determined the DVLA’s definition of “employee” includes individuals who have been hired, even if they have not yet started working for the employer. Second, the SJC held for the DVLA’s protections to apply, employees do not need to explicitly or formally request leave, or to provide specific dates they will be out of work.   Rather, the SJC interpreted what qualifies as “appropriate” and “advance” notice of leave to include disclosures by employees that imply they may want to exercise their rights under the DVLA leave provisions at some point in the future.

Background

Because the SJC addressed this issue in the context of a motion to dismiss, the SJC had to accept as true – and could only consider – the sufficiency of the factual allegations of the complaint.  The Defendant Children’s Hospital Corporation (doing business as Boston Children’s Hospital) (“CHC”) will have an opportunity to rebut the allegations as the case proceeds.

Plaintiff Kehle Osborne-Trussell is a registered nurse and the victim of “repeated stalking, threats, harassment, abuse, and overt threats.”  In December 2018, Ms. Osborne-Trussell obtained a harassment prevention order (“HPO”) against the abuser. The HPO barred the abuser from “directly or indirectly contacting [Ms. Osborne-Trussell], ordered [the abuser] to remain away from [Ms. Osborne-Trussell’s] home or place of work, and prohibited [the abuser] from making any social media postings that reference [Ms. Osborne-Trussell].”  In February 2019, after an application and interview process, Ms. Osborne-Trussell accepted a position as a staff nurse at CHC, which was to start in mid-March 2019.  CHC subsequently issued Ms. Osborne-Trussell a photograph identification card identifying her as a CHC “staff nurse,” provided her with a CHC employee identification number, and assigned her a training schedule.

Shortly thereafter, her abuser posted threats and false statements about her on social media, in violation of the HPO she obtained a few months prior. Ms. Osborne-Trussell reported the violation of the HPO to the Merrimac Police Department and CHC’s human resource department. CHC requested additional information about the abuser, and CHC's human resources representative told Ms. Osborne-Trussell that he “intended to speak with [the abuser] to hear her side of the story.” Less than two weeks later, CHC sent Ms. Osborne-Trussell a termination letter stating that her “employment offer for the Staff Nurse position at Boston Children's Hospital has been rescinded effective March 12, 2019” and that “the work clearance process is not able to be initiated, so we are unable to complete the onboarding process at this time.”

Ms. Osborne-Trussell subsequently filed a three-count complaint against CHC in the Superior Court, asserting that her termination violated the non-retaliation and noninterference provisions of the DVLA and public policy.  CHC moved to dismiss the claims arguing that Ms. Osborne-Trussell was not an “employee” under the DVLA because she had never commenced employment with the hospital. The hospital also argued that even if the DVLA applied, her claim should still be dismissed because she never requested leave related to the harassment by the abuser.

The Massachusetts Superior Court previously ruled that while Ms. Osborne-Trussell was CHC’s employee, she could not pursue a DVLA claim, because she never requested leave under the statute.

Decision

The SJC unanimously held that Ms. Osborne-Trussell, who had been hired by the hospital, but had not started work, qualified as an employee under the DVLA. The court explained, “[a] construction that excludes from the definition of ‘employees’ those who have accepted employment, but have not yet begun work would be directly contrary to the clear intent of the DVLA to allow employees to attend to the consequences of the abuse without risking loss of their jobs, and to prevent future harassment and abuse when victims step forward to confront their abusers.”

By a slim 4-3 margin, the SJC also held that Ms. Osborne-Trussell provided sufficient notice to trigger protections under the DVLA. The DVLA provides, “Except in cases of imminent danger to the health or safety of an employee, an employee seeking leave from work under this section shall provide appropriate advance notice of the leave to the employer as required by the employer's leave policy.”

The SJC concluded that Ms. Osborne-Trussell provided “appropriate” and “advance” notice of leave by simply communicating a qualifying reason for leave being requested under the DVLA, namely, that her abuser had posted on social media about her in violation of the HPO and that she was working with law enforcement to enforce the provisions of the HPO. The SJC explained that this disclosure was sufficient, because it put the hospital on notice that, “while [Ms. Osborne-Trussell] did not then know of any specific date on which she would require leave, she might need to exercise the leave provisions of the DVLA and was invoking her rights to leave under it.”  The SJC further reasoned that holding otherwise would be at “odds with the remedial purposes of the DVLA to encourage appropriate advance notice” and that under the hospital’s “narrow view of the notice provision, an employer could preclude an employee from exercising the rights provided under the DVLA by preemptively terminating an employee who discloses her abuser's violation of a protective order before a date certain for leave is known.”

Employer Takeaways

• The definition of “employee” under the DVLA includes individuals that have not yet started work. According to the SJC’s decision, employees who have just been hired are immediately entitled to the protections of the DVLA.
• An employee does not need to make explicit statements such as, “I request leave,” or request time off for a particular date to provide the requisite notice required by the DVLA. A simple disclosure that implies that the employee may need to exercise the leave provisions of the DVLA may be sufficient to trigger DVLA protections. Such statements should be interpreted on a case-by-case basis for possible protection under the DVLA.

This is the SJC’s first interpretation of the non-retaliation and non-interference provisions of the DVLA. We will continue to monitor court decisions for any additional interpretations of these provisions.