By an overwhelming vote of 34-0, the Massachusetts State Senate voted on January 12 to grant victims of domestic violence up to 15 days of annual leave. The bill is not yet law as it must be approved by the state’s house of representatives and then signed by Governor Deval Patrick. Given the lack of dissent in the Senate, however – one brave Senator did vote “present” in apparent protest, a move that suggests opposition in the House will be hard to come by — the law seems likely to be enacted sometime soon.

 In its current form, the domestic violence leave law would apply only to companies with 50 or more employees. This is the same size threshold as applies to the Family and Medical Leave Act (FMLA), a federal law that grants workers up to 12 weeks of leave annually and applies to things like child birth, adoption, and medical conditions. The 15 days of leave for domestic violence victims would be in addition to FMLA’s 60. It could be used to obtain medical attention or counseling, appear at legal proceedings, meet with law enforcement officials, or ”address other issues directly related to the abusive behavior against the employee or family member of the employee.” Any of these provisions or others in the Senate’s bill could be amended after consideration by the House of Representatives.

In any form, the law is bound to raise concerns among large employers and business advocacy groups. Massachusetts already imposes a variety of restrictions on the ways employers treat their workers, and the domestic violence bill may be viewed as piling on. Still, the idea comes in response to a real need, and few would argue against the idea of helping victims, at least conceptually. Indeed, victims of domestic violence and their advocates might also be unhappy with the Senate bill, which clearly will fail to reach the many domestic violence victims who work for small Massachusetts companies. In any event, Massachusetts would not be the first state to grant work leave rights to domestic violence victims. Already, laws in California, Connecticut, Florida and other states grant job protections in this area. Some form of leave law certainly seems appropriate for the Commonwealth now and, with any luck, the legislature will strike a proper balance for our state. 

In a decision many employment lawyers may find surprising, the Massachusetts Commission Against Discrimination refused in June to stay proceedings in an age and sex bias case despite the employer’s filing of a bankruptcy petition. The MCAD instead proceeded to hearing and entered a judgment of nearly $250,000 for the employee, concluding that the bankrupt respondent “has chosen to default rather than present a defense.”

The decision is contrary to language from the United States Bankruptcy Code, which requires that civil proceedings — including administrative processes like those at the MCAD — be stayed as to any party that files for bankruptcy protection. The idea that an agency like the MCAD could somehow be exempt from this federal law, which generally trumps any conflicting statute at the state level, is itself surprising. The ruling, however, is supported by a 1999 Bankruptcy Court decision. It permitted the Commission to enter injunctive and monetary relieve under an exception to the Code’s stay requirement that appears to apply to the continued exercise of “police and regulatory power” in chemical weapons proceedings.

While the ultimate effect of the stay decision itself is a matter for the case’s parties alone, the ruling delivers a plain message from the MCAD to employees and employers alike: think carefully as you weigh whether and how to proceed at the Commission. Regardless what the law may appear to require, the MCAD possesses broad regulatory authority that may be used in suprising ways as the Commission pursues its goal of remediating illegal discrimination.