The recent scandal involving NFL player Ray Rice’s violent physical assault on his then-fiancée has put a spotlight on domestic violence. Because of this high-profile incident, employers may see more domestic violence issues involving employees as both victims and perpetrators. Therefore, employers should remember the following:
- You may be required to give leave to employees who are victims of domestic violence. For example, Connecticut employers with three or more employees must provide employees with up to twelve days of unpaid leave to handle issues related to domestic violence including to care for injuries, obtain psychological care, or move into a new home. The leave may also be used by family or household members who must help the victim of domestic violence. At least fifteen states, the District of Columbia, and some municipalities have laws regarding mandatory leave or benefits for victims of domestic violence. Employees may also be entitled to leave under other state and federal laws such as sick leave laws or the Family Medical Leave Act.
- You may not be able to take adverse action (such as discipline) against the victim of domestic violence under state and federal law. Some states like California have laws prohibiting retaliation against the victims of domestic violence; in some states, an employee’s status as a domestic violence victim may be a protected class, such as New York. Further, there are restrictions under federal law on taking adverse employment actions based on sex-based stereotypes (such as blaming the female victim for these attacks and the resulting absences) under Title VII of the Civil Rights Act of 1964 or based on health conditions like stress and depression resulting from traumatic incidents, including domestic violence, under the Americans with Disabilities Act (“ADA”).
- If you become aware that an employee was the victim of domestic violence, you should gather enough facts to determine whether or not there is any risk that the perpetrator may come into the workplace and try to harm the victim or others. If there is such a risk, you should take appropriate steps which could include alerting the police or simply just keeping your doors locked.
- You must be careful when taking adverse action against an employee based on an arrest or conviction under state and federal law. Employers who have a policy or practice of not hiring or firing employees based on convictions should ensure the conviction is job-related and consistent with business necessity. Generally, conviction for domestic violence is not a legitimate reason for discharge. For Ray Rice, his problem was he had a contract that prohibited such conduct. Violating this contract provision will be the basis for his discharge. When dealing with arrests, many states and the federal EEOC hold that discharge for an arrest alone will generally be unlawful. However, if the employee violates your attendance policy as a result of any of these incidents, this is often a simple rule violation that may justify discharge.
If you become aware that your employee is the victim or perpetrator of domestic violence, you should seek the advice of competent counsel before taking adverse employment action.
Brody and Associates regularly advises management on complying with local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
