Victims of domestic violence or abuse from acquaintances who are on the verge of starting a job are protected by a state law that prevents employers from sanctioning employees who need time off to deal with police and the courts as they try to protect themselves, a divided Supreme Judicial Court ruled Wednesday.
The 5-2 ruling was the first time the state’s highest court reviewed the Domestic Violence and Abuse Leave act since its enactment in 2014. The law requires employers to provide up to 15 days leave once notified an employee needs to react to a domestic or abuse issue that will lead to absences at work, the court said.
“One of the Legislature’s specific goals in adopting the DVLA was to protect employees who were experiencing the effects of domestic violence from adverse consequences at work,” Justice Dalila Wendlandt wrote for the majority. “We reject a construction of the term ‘employees’ that would exclude individuals who have been hired but have yet to perform services for their employers.”
At issue is the treatment Kehle Osborne-Trussell received after she got a written job offer to work for Boston Children’s Hospital in 2019 which included assigning her an employee identification number, issuing her a photo ID card, and scheduling in-hospital training, according to the SJC.
Since late 2018, Osborne-Trussell had an active harassment protection order (HPO) against a person with whom she was acquainted. The order banned the person from posting false and negative comments on social media. However, the person did just that — and tagged Children’s Hospital’s social media with the false and negative postings, the court said.
Osborne-Trussell notified Children’s and told them she was working with police about the violation of the HPO, the court said. “In an otherwise inexplicable about face, [the hospital] terminated her employment,” Wendlandt wrote.
Osborne-Trussell sued Children’s under the DVLA, but lost in Superior Court. The SJC, on its own motion, took over her appeal of that adverse ruling. The majority said she — and others who have been promised jobs, but not yet started — are protected just like someone already collecting a paycheck.
Osborne-Trussell put Children’s “on notice that, while the plaintiff 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,” Wendlandt wrote. The DVLA “is centered on protecting victims of abuse and harassment in many contexts...Accordingly, she was an ‘employee’ for purposes of the DVLA.”
Justice Serge Georges, Jr. and Frank M. Gaziano dissented on the grounds that Osborne-Trussell never specified when she was going to take time off from her job which did not meet the legal standard of providing Children’s advance notice of work absences called for under the DVLA.
“In my view, where an employee announces simply that he or she is taking action generally to enforce an HPO, it does not follow that the employee intends to take, or necessarily would need to take, a leave from work to do so,” Georges wrote. When Osborne-Trussell told Children’s about the “existence of the HPO and her intention to enforce it, it was far from clear whether her efforts would require her to take time off from work.”
Georges, while noting he dissented, was alarmed enough by the hospital’s behavior that he wrote a footnote about his concerns. Children’s told Osborne-Trussell it would need to hear the abuser’s side of the story as part of the hiring process.
The hospital’s effort to “ ‘hear [the abuser’s] side of the story’ unwittingly could have provided the abuser with information about the plaintiff’s location and a renewed opportunity to inflict further harassment, thereby undermining the protective purposes” of a restraining order, he wrote. “To avoid such risks, I believe it behooves employers to exercise the utmost caution in their approach, including in determining in the first instance whether direct contact with the subject of the HPO is necessary or appropriate.”
The majority sent the case back to Superior Court, where a judge will be guided by Wednesday’s ruling in future decisions on the case.