Domestic violence is a pattern of behavior in which one intimate partner uses physical violence, coercion, threats, intimidation, isolation or emotional, sexual or economic abuse to control the other partner in the relationship. Domestic violence causes major damage to the personal and professional life of the victim. It also has significant direct and indirect effects on the workplace. Indirectly, domestic violence at home may affect the victim's productivity and attendance in the workplace. Directly, domestic violence may result in the need for leave or a change in the employment relationship, as well as costs to the employer (in the form of hiring and training new employees when victims leave their jobs) and the potential for liability. The goal of this 201 Article is to provide a basic overview of the areas of law potentially triggered when domestic violence spills over into the workplace, as well as some do's and don'ts for employers.
Depending on the circumstances, a number of laws may be applicable to situations in which domestic violence exists:
- Protected Leave: An employee who is a victim of domestic violence may be eligible for protected medical leave if the victim suffers from a qualifying "serious health condition" and the employer is subject to the applicable federal or state medical leave law. In addition, some states now have laws which permit employees who are victims of domestic violence, sexual assault, or stalking to take unpaid leave from work for a reasonable period of time to seek assistance. These state laws apply to victims, as well as parents or guardians of minor children who are victims.
- Negligence: An employer may be liable to a victim of domestic violence based on a number of different negligence theories:
- Negligent Hiring: If an employer hires an applicant who the employer knew or should have known presented an unreasonable risk of harm to other employees or customers (perhaps based on the results of a criminal background check or the information received from the applicant's personal references), and that employee inflicts a foreseeable harm on a co-worker, the employer may be liable for negligent hiring.
- Negligent Retention / Supervision: If an employer continues to employ an employee whom the employer knows or should know presents an unreasonable risk of harm to other employees or customers, and that employee harms a co-worker, the co-worker may hold the employer liable for negligent retention or negligent supervision.
- Negligent Referral: If an employer terminates an employee and has knowledge that the employee presents a danger to co-workers, but then provides inaccurate information regarding the fitness of that employee to a potential employer, the old employer may be held liable for negligent referral if the injury would have been avoided if the employer had given a truthful referral and warned the potential employer.
- Duty to Warn: An employer generally may be found liable for negligence if the employer is aware of an unreasonable risk presented by one of its employees, but nevertheless fails to warn customers or other employees of that potential risk, and injury results.
- Americans with Disabilities Act: The ADA, in part, regulates what decisions an employer may lawfully take when confronted with an applicant or employee who may be a "direct threat" to the health or safety of others in the workplace. While the "direct threat" provisions are not confined to employee violence (for example, an employee with a communicable disease may be a "direct threat"), these are restrictions that should be kept in mind any time an applicant or employee has a mental disability that might be related to violence. A "direct threat" exists where there is a significant risk of substantial harm to the health or safety of the individual or to others, and it cannot be eliminated or reduced by a reasonable accommodation. The "direct threat" provisions of the ADA operate as an exception to the general rule that an employer may not discriminate against an employee on the basis of a protected disability. Where the employee or potential employee presents a "direct threat," the employer may refuse to hire a potential applicant or terminate a current employee.
- OSHA: The Occupational Safety and Health Act exists in both federal and state versions and governs safety on the job. Although one commonly thinks of OSHA as a law regulating the physical working environment, liability may arise under OSHA if the employer recognizes a hazard (such as an abusive employee), yet the employer does nothing to prevent that hazard, and injury results to an employee.
- Workers' Compensation: Although an employer who complies with its responsibilities under workers' compensation law generally is protected from a civil lawsuits brought by an employee for the same injury, there are important exceptions to this rule which may apply in the domestic violence context. For instance, an employer who deliberately maintains the conditions that cause the harm may be subject to direct liability. Sim ilarly, any employer who intentionally causes the harm is subject to liability.
Employers Can Go "Too Far"
In light of all the potential legal pitfalls and possible grounds for liability, employers should be proactive and adopt appropriate policies to handle these delicate situations correctly. However, an employer may go too far, and subject itself to liability by doing so, even if the employer's intent was to help the domestic violence victim:
- Privacy Issues: Employers should have policies in place which eliminate any expectation of privacy an employee may have in his or her use of office computers and telephones, so that an employer can monitor or investigate employee behavior in order to insure that no harassment is taking place. An invasion of privacy or violation of medical privacy laws may arise, however, if an employer directly inquires about the nature of a domestic violence victim's injuries, or if the employer breaches an employee's reasonable expectation of privacy.
- Advice: Employers should avoid the temptation to provide legal or substantive advice, such as whether a victim should press charges or seek a restraining order. If the employee follows the employer's advice to his or her detriment, the employee may be able to argue that the employer ordered him or her to do so, and that the employer should be liable for any damages that resulted.
- Off the Job Activities: Some states, including California, exempt off-the-job activities from the scrutiny of employers. In those states, an employer cannot terminate an employee for an off the job activity, such as cigarette smoking. Although courts have not clearly stated whether the laws might help an employee to avoid being fired for domestic violence off the job, an argument could be made.
What Employers Should Do
- Consider Help or Accommodations for Domestic Violence Victims: Consider Employee Assistance Programs for training or counseling, paid or unpaid time off of work, changes to the victim's work schedule, changes to the victim's phone extension, office location, or assigned parking space, agree on what to tell co-workers, make sure employee knows to alert someone to any potential problems or dangers, and warn any employee about whom you receive a threat.
- Insure that the Work Environment is Safe: Consider door locks, adequate lighting, alarm systems, visitors sign-in, metal detectors, panic buttons, and providing abuser's name and photo to building security personnel.
- Manage Potential Internal Threats: Screen potential applicants, conduct criminal background checks, inquire about prior employment, talk to personal references, and screen for illegal drugs.
- Implement effective policies: Establish a of zero tolerance policy for workplace violence, harassment, and physical or emotional abuse, express a commitment to a violence free workplace, ban weapons on the premises, protect employees' privacy rights in confidential information (personnel records), limit employee expectation of privacy on company computers and telephones, define workplace violence and domestic violence, establish a duty to report action or behavior amounting to a violation of those policies, clarify that retaliation against people who make reports is strictly prohibited, convey that prompt and effective corrective action will be taken when necessary, say that people who are found to have violated the policies may be subject to discipline up to and including discharge.
- Conduct Initial and Follow-up Training: Conduct trainings so that employees and employers understand the definitions and their obligations under the policies, have a point person who is knowledgeable and can act as a resource to those with questions or problems, encourage reporting through a hot line or other anonymous report method, teach employees to identify risks when they encounter them, and make sure that everyone knows the phone number for the National Domestic Violence Hotline (1-800-799-SAFE (7233)).
- Criminal Activity: Arrested or jailed employees may be disciplined for attendance so long as the employer is applying the attendance policy consistently. An employer may discipline or terminate if the criminal activity in question violates the employer's policies or puts other employees at risk.
Domestic violence is an epidemic, and the issues are challenging when its effects spill over into the workplace. Employers should educate themselves and their employees about the applicable law and implement appropriate policies. The ABA YLD, in cooperation with the ABA Commission on Domestic Violence and Break the Cycle, is sponsoring the Voices Against Violence project, designed to increase young lawyer awareness about domestic violence and encourage their involvement in the fight against it. More information on Voices Against Violence can be found at www.abanet.org/yld/dv.
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About the Author
Andrew M. Schpak is an associate with Barran Liebman LLP in Portland, Oregon, where he practices employment law. Mr. Schpak is admitted to practice in Oregon and Washington. He is an active member of the American Bar Association Young Lawyers Division, currently serving as a Vice-Chair of the Labor and Employment Committee as well as the District Representative of Oregon and Washington. He also serves as a YLD Fellow to the ABA Section of Labor & Employment Law. Mr. Schpak also is President of the Multnomah Bar Association's Young Lawyer Division.
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