Whether employers are required to comply with the Mass. Maternity Leave Act (MMLA) for leaves of over eight weeks, if they do not tell employees otherwise.

Global NAPS (Global) told an employee that she could take eight weeks of maternity leave, or ten weeks if she gave birth by C-section. The employee gave birth by C-section. After her ninth week of maternity leave, Global terminated her employment for failure to return to work.

The employee filed a claim pursuant to the MMLA, and won damages of approximately $1 million. Global’s attorneys failed to file a timely appeal on the issue of liability. In the present case, Global has sued the attorneys for malpractice.

1. MMLA claim. The attorneys’ liability for negligence turns on whether Global’s appeal would have been successful if filed. The issue is therefore whether the employee had a valid claim under the MMLA. (The employee did not file under other theories, such as contract or estoppel.)

   The MMLA itself requires that a person who is absent from employment “for a period not exceeding eight weeks for the purpose of giving birth” must be restored to employment. G.L. c. 149, § 105d. However, the Mass. Commission Against Discrimination has issued a guideline stating that “An employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave.” The trial judge extended MMLA rights and remedies beyond eight weeks on the basis of that guideline, apparently holding that the guideline filled a gap in the MMLA where the statute left unclear what terms would apply to maternity leave over eight weeks. Global argues that the statute is perfectly clear that it applies only to leave lasting less than eight weeks.

2. Loss of chance. Global argues a second, novel cause of action – that its attorneys’ negligence deprived it of the chance to settle for a lower figure prior to appellate resolution. Loss of chance has been recently recognized in the medical malpractice context in Massachusetts. Matsuyama v. Birnbaum, 452 Mass. 1 (2008); Renzi v. Paredes, 452 Mass. 38 (2008). Global hopes (but wisely does not place primary reliance on the hope) that the Court will extend that theory of harm to legal malpractice claims as well.

MCAD’s position is likely wise as policy; as counsel for the attorneys observed, if an employer is not required to inform employees of their diminished rights when taking more than eight weeks of leave, the employer could largely circumvent the MMLA by encouraging the employee to take extended leave and then firing her once her eight weeks expired – as indeed happened here. However, it is not at all clear that MCAD has the power to extend statutory damages beyond eight weeks on that basis – particularly in a “guideline” as opposed to a “regulation.”

Although it does not raise the same constitutional issues, this case may foreshadow another argument relating to MCAD’s interpretation of the MMLA – its recent announcement that it would apply the MMLA to male employees, even though the statute’s language applies only to females.