Workplace Domestic Violence Legal Standards Continue to Develop

On August 8, 2014, the Governor of Massachusetts signed into law a statute that, among other provisions, allows an employee of an entity having 50 or more employees to take up to 15 days of leave from work in any 12-month period due to enumerated domestic violence issues. The employer has sole discretion to decide if the leave is paid or unpaid. A number of states already have similar legislation that either specifically addresses domestic violence or more generally the right of a crime victim to have work release time due to court proceedings. These statues vary from state to state. Depending on the circumstances, potentially relevant federal statutes include the Family and Medical Leave Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, the Civil Rights Act, and the Violence Against Women Reauthorization Act.

The American Bar Association (ABA) also this month adopted a "Model Workplace Policy on Domestic Violence, Sexual Violence, Dating Violence and Stalking." The policy is not legislative and has no penalties but provides some guidelines for employers to consider. This comment briefly addresses selective workplace domestic violence legal issues. Anyone, including employers or employees, facing domestic violence should contact a respected advocacy organization and experienced legal counsel.

A restraining order has been a traditional legal tool in domestic violence situations. However, the restraining order alone (printed on paper) will not physically protect an individual from a determined assailant. Also, the U.S. Supreme Court held in a 7:2 decision in 2005 that in essence a police department could not be held liable for failing to adequately enforce a restraining order (Castle Rock v. Gonzales). Anyone threatened with violence must take the threat seriously and create a personal safety plan.

The employment-at-will legal doctrine grants employers broad discretion to fire employees. It traditionally allowed an employer to simply fire an individual who faced domestic violence that could spill into the workplace. State legislatures and courts have been creating a right not to be terminated simply because of domestic violence fears. One must research the law in a given state since standards vary.

On the other hand, numerous court decisions impose a duty of reasonable care (negligence standard) on employers to provide a safe workplace. This responsibility is particularly heightened when an employer attempts to provide security (such as guards or limited access) or becomes aware that a particular employee has been threatened. Workers' compensation statutes may sometimes prevent lawsuits against employers for workplace violence injuries. However, if an employer is found to have been grossly negligent or intentionally acted in a way that produced injury, then the injured employee may sue. Additionally, injuries that occur outside of the scope of employment may not be subject to workers' compensation. Consequently, the contemporary legal environment places a higher standard of care and attention on employers to directly address domestic violence issues.

The ABA model workplace policy addresses domestic violence, sexual violence, dating violence, and stalking. It provides an enumerated list of employer responses to victims and to those employees who are concerned about violence or who commit violence. Clearly, employers should create a formal workplace policy concerning domestic violence and the ABA model is worth considering. Simply ignoring the possibility of domestic violence and violence in general in the workplace is not acceptable.