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Domestic violence in the workplace: A primer for employers

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The statistics on domestic violence in the workplace are alarming. An estimated 13,000 acts of domestic violence are committed in the workplace each year. Homicide is the leading cause of death for women in the workplace. The cost of domestic violence to employers has been estimated as $3 billion to $5 billion annually due to health care costs, lost productivity, high absenteeism and employee turnover rates.

Jerrilyn Malana

Domestic violence takes many ugly forms. It can consist of physical, sexual, emotional, economic or psychological actions or threats on the part of an abuser, which are designed to intimidate, terrorize, control, manipulate and psychologically or physically injure an intended victim. Domestic violence can happen to anyone regardless of race, gender, sexual orientation, age, socio-economic status and education level.

Employers cannot ignore what may be considered a "private family matter" because an employee's problems at home will inevitably manifest themselves at work in one way or another. For example, an employee may be harassed on the job by an abuser, be absent from work because of injuries, and be less productive on the job due to stress. In the most egregious instance, physical violence may occur on the company's premises directed at the employee by an abuser. However, in all such circumstances, the safety of the entire work force is threatened, and not just the safety of the victim. Regardless of the form of domestic violence, employers must be aware of the legal ramifications of its actions -- and inactions -- in addressing the situation.

Many states have job protection statutes for general crime victims, which prohibit employers from taking adverse action against an employee who must take time off from work to attend court proceedings or other judicial proceedings. However, only a handful of states, including California, provide specific job protections to domestic violence victims. Notably, some states such as California have bills pending which seek to enhance job protections for domestic violence victims by creating a new protected status for victims of domestic violence. Under such a law, employers would be prohibited from taking adverse employment action against an individual based solely upon the individual's status as a domestic violence victim. This remains an emerging area of the law.

In California, Labor Code 230 provides that employers cannot discharge, discriminate or retaliate against an employee who is a victim of domestic violence for taking time off from work to obtain a restraining order or other injunctive relief to protect the employee or the employee's children. Employers must allow victims of domestic violence to use paid or unpaid leave for the time off. However, the employer can require that the employee provide documentation to verify that the employee is indeed a victim. For employers with 25 or more employees, Labor Code 230.1 provides that employers cannot discharge or discriminate against a victim of domestic violence for taking time off to obtain counseling or medical attention, or to obtain services from a domestic violence shelter.

Other employment laws may be triggered when domestic violence issues come into the workplace. For example, leave laws such as the federal Family and Medical Leave Act and California Family Rights Act may come into play when victims need time off to care for themselves or family members if they have serious health conditions caused by the violence. Likewise, disability laws such as the Americans with Disabilities Act or the California Fair Employment and Housing Act (FEHA) may also be triggered if the victim becomes disabled. Additionally, the general duty clause of the Occupational Safety and Health Act, which requires employers to provide a safe working environment, may be implicated in workplace violence situations. Domestic violence victims may also be afforded protections under Title VII of the Civil Rights Act and FEHA if they are subjected to discrimination based on sex (gender), or harassment in the workplace.

A legal landmine awaits unsuspecting employers with regard to domestic violence in the workplace. A misstep could expose an employer to possible claims of discrimination, harassment, retaliation, wrongful termination, failure to accommodate and tort claims. Prior to taking any adverse employment action against an employee who is a victim of domestic violence, employers should consult with legal counsel.

Assisting domestic violence victims requires a multidisciplinary approach from many resources including law enforcement, health care, social services and the community. Employers can be a proactive partner in this process by working with domestic violence organizations and legal counsel to create a domestic violence workplace program, which includes the following steps:

¥ Domestic violence policy: Develop a written policy to address domestic violence in the workplace, which includes a definition of domestic violence and addresses time off from work, leaves of absence, flex-time or part-time work, transfers, reporting procedures, confidentiality, safety, enforcement, and zero-tolerance for workplace violence.

¥ Training: Provide regular ongoing training to all managers, supervisors and employees on the domestic violence policy, and how to appropriately respond to victims and refer them to outside resources.

¥ Employee Assistance Program: Provide access to an Employee Assistance Program (EAP) that is experienced in providing services to victims of domestic violence.

¥ Referral resources: Know the domestic violence resources in your local community to refer victims. Employers should also establish relationships with domestic violence resource organizations, workplace violence psychologists and law enforcement agencies. In San Diego, multiple organizations can assist victims including the San Diego Family Justice Center, YWCA of San Diego County and Center for Community Solutions.

Victims of domestic violence face a myriad of challenges, which will require significant emotional, physical and economic healing. By establishing an effective workplace program, an employer can assist with this healing process. Compassionate employers will reap the benefits of such a program by retaining valuable employees, reducing the risk of liability and creating goodwill for both its work force and the community.

Malana, with the law firm of Littler Mendelson PC, specializes in representing management in employment-related matters.

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