© 2014 The Texas Lawbook.
By Ron Chapman, Jr. and Adam Alexander – (November 14) – Recent headlines and accompanying video have brought domestic violence into the forefront of the national conversation.
Few employers have to navigate the workplace impact of domestic violence in the same spotlight as the National Football League, but even fewer employers are prepared for when the ugliness of domestic violence comes to its doorstep – whether that comes in the form of an abused employee dealing with the ramifications of the situation, an employee accused of abuse, or a non-employee abuser showing up at the office to confront an employee.
A Bureau of Labor Statistics study from 2006 (the most recent study conducted) found that more than 70 percent of workplaces in the United States have no formal program or policy that addresses workplace violence. Of the roughly 30 percent of workplaces in the United States that do, only 44 percent have a policy to address domestic violence in the workplace, and only 4 percent of all businesses train employees on responding to domestic violence and its impact on the workplace.
The safety of the victims of domestic abuse is of paramount importance. When the far-reaching impacts of domestic violence reach the workplace, it is a “mission critical” issue for employers that must be immediately addressed. According to the Centers for Disease Control and Prevention, intimate partner violence victims lose a total of nearly 8 million days of work annually.
Similarly, a survey by the Corporate Alliance to End Partnership Violence (“CAEPV”) in 2007 found that 63 percent of corporate executives considered domestic violence a major problem in our society and 55 percent thought it negatively impacted their companies’ productivity; however, only 13 percent of the executives thought their companies should address the issue.
When the employee is the alleged perpetrator of the abuse, the employer should evaluate the totality of the circumstances, just as it would for any other employee accused of a criminal act. Rote adherence to company policy must be tempered with a thorough examination of the role of the employee in relation to the charges and the particular job duties the employee performs.
Once the employer has thoroughly investigated the situation, a change of assignment or even termination may be warranted, depending on the circumstances.
If an employer suspects or is told an employee is a victim of domestic abuse, the employer should direct the employee to available employee assistance programs and provide the employee information about options for local counseling, crisis centers and shelters. Open channels of communication between the employer and employee can help the employer best accommodate the needs of the abused employee. Such dialogue can also provide insight into when and how the abuser might come to the workplace, allowing the employer to prepare for a perilous situation created by the domestic abuse of its employee.
The accommodations to be considered will vary depending on the circumstances. One form may be a leave of absence. Several states have passed statutes permitting employees who are victims of domestic violence to take time off from work.
For example, under a California statute, all employers, regardless of size, must permit employees time off work as necessary to appear in court to secure a restraining order involving the safety and security of the employee or his or her child from domestic abuse. Larger employers have obligations to provide additional accommodations, such as allotting time off for temporary relocation by the victim. Regardless of state law requirements, employers should consider how they can assist the employee overcome the situation.
Workplace Impact Beyond the Abuse
Stopping the abuse and supporting the victim should be the primary concerns, but the impact the abuse has on the workplace is also relevant.
A survey by the CAEPV indicates that some victims of domestic abuse are not as productive at work as they could be. In fact, 64 percent of victims of domestic violence indicated their ability to work was affected by the violence. Digging deeper, 57 percent of victims noted “distraction” as the main reason for the decline in productivity, while “fear of discovery,” “harassment by intimate partner at work (either by phone or in person),” “fear of intimate partner’s unexpected visits,” and “inability to complete assignments on time” constituted large percentages of the responses.
An employer should make reasonable efforts to consider the needs of the employee victim and help him or her get the support needed. If repeated disruptions occur and/or productivity suffers in a significant way, the employer may be faced with a difficult decision of whether to retain the employee, given that Texas is an “at-will” state. In this age of social media, the employer should anticipate unwelcome exposure in the event of firing a domestic abuse victim and ensure that it has handled the situation fairly and compassionately.
Fellow employees and managers can have varying and conflicted responses to the situation. Understandably, some may become emotionally invested in the protection and well-being of their co-worker, but reactions can very significantly.
A 2005 CAEPV survey found 31 percent of co-workers of domestic violence victims felt “strongly” to “somewhat obliged” to cover for a victim of domestic violence by performing his or her work or offering excuses for his or her absence,.Twenty-seven percent reported “extremely frequently” to “somewhat frequently” having to do the victim’s work, while 25 percent resented the victim because of the corresponding impact on their own situation at work. Additionally, 38 percent of respondents were “extremely” to “somewhat concerned” for their own safety when they found out a co-worker was a victim of domestic violence.
Having a clear and well-communicated policy on workplace violence, including the impact of domestic violence at work, can help give co-workers some direction on how to handle these feelings and encourage them to bring their concerns to human resources and management so they can be addressed.
Finally, a non-employee abuser may attempt to confront the employee victim at the employee’s workplace. Employers have an obligation to provide a safe workplace for their employees, and once a threat is known, an employer must take reasonable measures to secure the facility from the threat.
Some businesses, such as those that are retail by nature, do not have access control measures to prevent unauthorized entry. Employees should be instructed to call 911 for imminent threats of violence in the workplace. The employer should assess developing threats quickly and address them in a prudent manner, which necessarily will vary depending on the circumstances. For example, the employer can instruct an abusive partner to stay away from the workplace and/or hire extra security. In some situations, restraining orders can be obtained.
The overriding principle is that an employer should act if it is aware of a situation that might bring violence to the workplace – be it directed at the victim or co-workers.
Ron Chapman, Jr. is a Shareholder in the Dallas office of Ogletree Deakins and a member of the firm’s Board of Directors. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Adam H. Alexander is an experienced in-house attorney with CommScope, Inc. and helps companies navigate the full array of legal issues affecting business strategy.
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