DOMESTIC VIOLENCE IN THE WORKPLACE

A. Introduction.

According to a Department of Justice, Bureau of Statistics Report published in December, 2001, between 1993 and 1999, violence in the workplace declined. In 1993 there were 1,074 workplace homicides, while in 1999 there were 651 workplace homicides. Over the six-year period, there was an average of 900 workplace homicides annually, but homicide accounted for only .1% of all workplace victimization. (There was an average of over 1.3 million simple assaults in the workplace each year.) For women, however, homicide is the leading cause of death in the workplace.

Overall, workplace violence victims are more likely to be harmed by a stranger, co-worker or former co-worker. Often, however, homicides and simple assaults occur as a result of domestic violence that spills over into the workplace. In most of these situations, the spouse or ex-spouse of an employee will perpetrate violence against the employee (and sometimes the employee’s co‑workers) in the workplace. This usually occurs in circumstances where the victim has moved out of the home so that the only place the aggressor can locate the victim is at work. Thus, although an employer can do its best to screen out problem applicants and to monitor its own workforce, a large percentage of violent offenders are beyond the control of the company. These materials discuss what companies can do to address domestic violence situations in the workplace.

B. Why Must Employers Deal with Domestic Violence?

Employers may take all of the necessary precautions in hiring an employee by carefully interviewing applicants, conducting background checks and promulgating strict anti-violence policies. However, an employee is a package deal. She is hired to bring her skills and abilities to the workplace, but also has a personal life comprised of relationships and those relationships may be problematic. There is no way for an employer to screen an employee to determine whether she is, or will later be, a victim of domestic violence.

Employers are very reluctant to become involved in a domestic violence situation because of fears of confidentiality and intrusion. Other barriers to involvement include high cost for providing services, ignorance of the issue and cultural and social beliefs. However, even if employers do not become proactively involved, they are nevertheless affected by the consequences of domestic violence. According to studies:

• On a national level, domestic violence costs employers $3 to $5 billion annually due to worker absenteeism, increased health care costs, higher turnover and reduced productivity.

• Abusive husbands and intimate partners harass 74% of employed battered women at work, either in person or by telephone. Fifty-six percent of battered women are late for work at least five times per month, 28% leave early at least five days a month, 54% miss at least three full days of work a month, and 20% lose their jobs.

• Murder is the leading cause of workplace death for women. According to the Bureau of Labor Statistics 1993 Report, 20% of women killed in the workplace were murdered by a current or former husband or male partner.

In addition to the costs of lost productivity of a battered woman, there are legal risks to an employer when a domestic violence victim’s troubles follow her into the workplace. The federal Occupational Safety and Health Act requires an employer to provide “a safe and healthful working environment.” In addition to this statutory requirement, an employer can be held liable for workplace violence under a negligence theory if the employer fails to prevent a foreseeable injury or death. This means that when an employer knows, or should know, that an employee’s domestic violence situation endangers the workplace, the employer has a legal duty to act.

C. Warning Signs of Abuse.

As stated above, employers are understandably reluctant to become involved in an employee’s personal matters. However, companies have an incentive and reason to become involved when personal matters affect workplace performance. Victims of domestic violence typically experience the following workplace problems:

• Crying at work.
• Inability to concentrate, decreased productivity and inattention to detail
• Frequent absences from work – the employee may take vacation days suddenly or sporadically.
• Frequent tardiness or abrupt departure.
• Frequent and harassing telephone calls at work from a partner who is always “checking up” on an employee.

Although these performance problems occur in many employees who are not victims of domestic violence, the presence of the following other symptoms indicate that domestic violence could be at issue:

• An employee frequently has bruises which she attempts to hide with make-up or clothing.
• An employee who is pregnant seems fearful or unhappy.
• Signs of distress or depression.
• An employee who mentions stress at home or refers to her partner’s anger or temper. The employee may seem to be afraid of her partner.
• An employee who has little or no access to resources such as money, credit cards or a car.
• An employee who is isolated from friends, relatives and co-workers.
• Minimization and denial if questioned about obvious problems.

Employers who recognize these performance problems and symptoms in an employee should be prepared to handle the employee’s reports of domestic violence when the employee is confronted about her performance.

D. Emergency Measures to Deal with Domestic Violence.

Once an employee informs the company of a domestic violence situation, the company must assess the risk to the workplace. An employee who complains of threats or violence by a partner or former partner should be asked:

• When the threats were made and what the specific threats were.
• Whether the partner has access to weapons.
• What the employee has done to address the threats.
• If the employee has obtained a protective order, she should provide a copy to the employer and, if possible, a recent picture of the partner.

Once the employer has secured this information from the victim, it should convene a management response team to assess the threat and, if necessary, increase the company’s security measures. If the company determines that the situation is sufficiently serious, it should partner with the victim employee to develop and implement a workplace safety plan. This plan may include:

• Allowing the victim to take accumulated vacation or sick leave to obtain legal protection, or granting the employee unpaid time off for this purpose.
• Advising supervisors and, in some cases, co-workers of the situation.
• Temporarily relocating the victim’s work station to a more secure location.

If feasible, giving the employee the options of voluntary transfer or permanent relocation to a new work site.

• Screening the victim’s telephone calls.
• Reassigning parking spaces.
• Escorting the employee to and from the building.
• Increasing security personnel.

If the employee has a protective order, the employer should ensure that it prohibits the aggressor from contacting (either in person or by telephone) the employee at work. If it does not, the employer should seek its own protective order. To obtain its own protective order, the employer must be able to demonstrate to the court that there is an “immediate risk of irreparable harm” to the workplace. At an evidentiary hearing, the employee, the manager, and/or a human resources representative may testify about the aggressor’s disruptions to the company – e.g., telephone calls to the employee, threatening the employee that he will kill her at work, etc. Once the company obtains a protective order, it must be prepared to enforce it by immediately notifying the police when the aggressor does not abide by the order and comes into the workplace or attempts to contact the employee by telephone.

E. Preventive Measures

Employers may also wish to implement procedures and policies to address the issue in a preventative manner. Preventative measures include:

• Posting information about Employee Assistance Programs and community resources to deal with domestic violence in an employee lounge area or restrooms.
• Conducting domestic violence awareness activities as part of an employee wellness program.
• Including information on domestic violence awareness and services in new employees’ benefit packages or as part of new employee orientation.
• Train employees (particularly managers and supervisor) about the indicators of domestic violence, necessary safety measures, and referral resources.

For a comprehensive listing of resources, see the New Mexico Coalition Against Domestic Violence’s website at: www.nmcadv.org, or telephone the Coalition at (505) 246-9240.

Employers may also implement a domestic violence policy as part of their standard violence in the workplace policies, or as a separate policy. Attached, with permission, is a copy of Sandia Laboratory Federal Credit Union’s Violence in the Workplace policy which references domestic abuse and restraining orders. See Appendix 1. Companies that wish to draft a specific domestic violence in the workplace policy could include the following provisions:

• A definition of domestic violence.

• A notation, such as that in the Credit Union’s policy, that victims are strongly encouraged to speak with an EAP counselor or a domestic violence shelter.

• Contact information for domestic violence resources.

• A provision commenting on the employer’s general duty to maintain a safe workplace and on the employee’s corresponding duty to notify the employer of potential threats to the workplace, including from co-workers, customers or third parties (including individuals that are acquainted with the employee).

• A requirement that employees who are being harassed or stalked or threatened while they are at work report the matter to appropriate personnel immediately.

• A requirement that employees notify management or human resources of a protective order that extends to the workplace and an assurance that the company will disseminate the information on a need-to-know basis.

• A provision noting that employees who are the victims of domestic violence are still subject to the same workplace standards as other employees. This provision could include the following statement: “If a victim of domestic violence experiences performance problems such as chronic absenteeism, the company will make an effort to consider all aspects of the employee’s situation, and to the extent possible, attempt to help the employee address the performance or conduct problems. However, this does not change the at-will nature of the employment relationship and the company may terminate employees at any time for any reason (including for misconduct or performance problems related to domestic violence situations) or for no reason.

• A prohibition on employees using company resources to commit domestic violence by harassing, abusing or threatening another. This includes employees who use workplace phones, fax machines, e-mail or access to confidential information (e.g., bank records) to victimize another person.

F. Conclusion.

Employees’ personal lives should be kept personal. However, domestic violence situations often affect the workplace through reduced productivity of a victim and/or through the possibility of violence perpetrated at the workplace by a partner. Although employers should act compassionately towards domestic violence victims, companies must also realize the potential danger to other employees in a particularly volatile situation. Terminating a domestic violence victim because of poor performance or because of the danger posed by her employment could provoke a wrongful termination or gender discrimination claim. Nevertheless, a company may decide that the risk of such litigation is preferable