Severability

If any provision of 458 CMR 2.00 or the application of any provision of 458 CMR 2.00 to any person or circumstance is finally held invalid by a court of competent jurisdiction, the validity of the remainder of 458 CMR 2.00 shall not be affected. 2. 16: continued (4) Presumption. Any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of: (a) an employee which occurs any time during a leave taken by an employee under M. G.L. c. 175M, or during the six-month period following an employee's leave or restoration to a position pursuant to 458 CMR 2.16(3); or (b) an employee who has participated in proceedings or inquiries pursuant to 458 CMR 2. 16 within six months of the termination of proceedings shall be presumed to be retaliation under 458 CMR 2. 16(3). A negative change shall not include trivial, or subjectively perceived inconveniences that affect de minimis aspects of an employee's work. Such presumption shall be rebutted only by clear and convincing evidence that such employer's action was not retaliation against the employee and that the employer had sufficient independent justification for taking such action and would have in fact taken such action in the same manner and at the same time the action was taken, regardless of the employee's use of leave, restoration to a position or participation in proceedings or inquiries as described in 458 CMR 2.16. An employer found to have threatened, coerced or taken reprisal against any employee pursuant to 458 CMR 2. 16 shall rescind any adverse alteration in the terms of employment for such employee and shall offer reinstatement to any terminated employee and shall also be liable in an action brought pursuant to 458 CMR 2. 16(5). A notification to the Department by an employer, under a bona fide belief that the employee has committed fraud in connection with the employee's application for benefits, shall not give rise to an action of retaliation or presumed retaliation under 458 CMR 2. 16. For the avoidance of doubt, leave taken by an employee under 458 CMR 2. 16(3), shall begin on the first day that an employee takes leave. The provisions of 458 CMR 2. 16 shall apply to all leave associated with a qualifying reason allowable under 458 CMR 2.00, regardless of whether the employee has actually filed an application for benefits with the Department. An employer's application of a preexisting employment rule or policy shall be deemed to be clear and convincing evidence. (5) Civil Actions. An employee or former employee aggrieved by a violation of 458 CMR 2.16 or M.G.L. c. 175M, § 2(e) and (f) may, not more than three years after the violation occurs, institute a civil action in the superior court. 2. 17: Severability If any provision of 458 CMR 2.00 or the application of any provision of 458 CMR 2.00 to any person or circumstance is finally held invalid by a court of competent jurisdiction, the validity of the remainder of 458 CMR 2.00 shall not be affected. REGULATORY AUTHORITY 458 CMR 2.00: M.G.L. c. 175M. NON-TEXT PAGE NON-TEXT PAGE