152 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP 6. Anti-Retaliation Provisions The MPFML includes broad anti-retaliation provisions.915 Employees must be returned to their previous position (or an equivalent position with the same status, pay, employment benefits, length-of-service credit and seniority) upon their return from leave.916 Any negative change to an employee’s seniority, status, employment benefits, pay, or other terms and conditions of employment during or within six months of an employee’s leave is presumed to be retaliatory.917 The presumption can be rebutted only by “clear and convincing evidence” that the employer had a non-retaliatory and independent justification for its actions.918 An example of clear and convincing evidence is an employer’s implementation of a “preexisting employment rule or policy.”919 D. Massachusetts Parental Leave Act The Massachusetts Parental Leave Act (MPLA) entitles an employee to take unpaid parental leave for (1) giving birth and/or caring for a newborn or (2) intending to or adopting a child under the age of eighteen (or a mentally or physically disabled person under the age of twentythree).920 The statute allows up to eight weeks of leave per child. Thus, an employee who has twins may take a total of sixteen weeks of leave. In addition, if an employer employs two employees who request leave for the birth, adoption, or placement of the same child, the employer is obligated to provide them with a total of eight weeks of leave between the two of them. The MPLA covers employers with six or more employees. Employees are eligible if they have been employed by the same employer for at least three consecutive months as a full-time employee.921 Leave under the FMLA and the Massachusetts Paid Family and Medical Leave Act (MPFMLA) may run concurrently with MPLA leave, but only if the FMLA and MPFMLA leave is utilized for 915 M.G.L. ch. 175M, § 9; 458 CMR 2.16(2). 916 M.G.L. ch. 175M, § 9; 458 CMR 2.16(1). The MPFMLA is more restrictive than the FMLA regarding the job restoration requirements. Compare 29 CFR § 825.216 (“An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration.”) and 458 CMR 2.16(1) (exception for job restoration requirement related to lay off if “other employees of equal length of service credit and status in the same or equivalent positions have been laid off due to economic conditions or other changes in operating conditions affecting employment during the period of leave provided, however, that the employee who has taken leave shall retain any preferential consideration for another position to which the employee was entitled as of the date of leave). 917 M.G.L. ch. 175M, § 9(c); 458 CMR 2.16(3). Negative changes do not include trivial or subjectively perceived inconveniences that affect de minimis aspects of an employee’s work. Id. 918 M.G.L. ch. 175M, § 9(c). 919 458 CMR 2.16(4). 920 M.G.L. ch. 149, § 105D. Employers may choose to provide leave longer than eight weeks. Under the MPLA, employees who take leave longer than eight weeks automatically retain the same service credit and job restoration protections that they had during the first eight weeks of their leave, unless the employer informs the employee in writing, before the start of the parental leave and before the start of an extension, that taking longer than eight weeks of leave will result in a loss of these job protections. Id. 921 M.G.L. ch. 149, § 105D(b).
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