2015.11.04 aba section of labor & employment

ABA SECTION OF LABOR & EMPLOYMENT9TH ANNUAL LABOR AND EMPLOYMENT LAW CONFERENCE

LEGAL AND PRACTICAL IMPLICATIONS OF DOMESTIC VIOLENCE IN THE WORKPLACE

Philadelphia, PANovember 5, 2015

ModeratorDonna M. Hughes

Impax Laboratories

PanelistsLisalyn Jacobs

Legal Momentum

Julie Richard Spencer Robein, Urann, Spencer, Picard & Cangemi

George Woods, M.D.University of California – Boalt Hall School of Law

Morehouse School of Medicine

Introduction 

1. Clinical perspective on domestic violence and its impact on the workplace

2. Evolution of laws as a consequence and the legal obligations of employers

3. Practical approaches for employers4. Scenarios – what really happens5. Final thoughts 6. Q&A

CLINICAL PERSPECTIVES

Intimate Partner ViolenceIntimate partner violence (IPV) is a serious, preventable public health problem that affects millions of Americans. The term "intimate partner violence" describes physical violence, sexual violence, stalking and psychological aggression (including coercive acts) by a current or former intimate partner.

(cdc.gov/violenceprevention/)

Intimate Partner ViolenceAn intimate partner is a person with whom one has a close personal relationship that can be characterized by the following: Emotional connectedness Ongoing physical contact and sexual behavior Identity as a couple

(cdc.gov/violenceprevention/)

Intimate Partner ViolenceThe relationship need not involve all of these dimensions. Examples of intimate partners include current or former spouses, boyfriends or girlfriends, dating partners, or sexual partners. IPV can occur between heterosexual or same-sex couples and does not require sexual intimacy.

(cdc.gov/violenceprevention/)

Psychological Battering False accusations Public humiliation Rejection Withholding love and

affection Isolating the victim

Psychological Battering Alienation of affection of friends and family Violating physical and psychological boundaries,

including the workplace

Undermining cherished ideals, i.e., religious beliefs

Symptoms of Traumatic Stress

Recurrent, involuntary memories Nightmares Intense emotional and physiological reactivity Ingrained negative beliefs about oneself, others

or the world

Manifestation in the Workplace Inability to feel positive emotions Irritability, hypervigilance and exaggerated startle

response Problems with concentration Anticipatory anxiety

STATISTICS AND LEGAL LANDSCAPE

Incidence of Workplace Violence 27% of women have experienced intimate

partner violence at least once For men, about 16% have experienced intimate

partner violence

Impact on Victims’ Employment Absences Unscheduled or unexplained absences Chronic tardiness Safety

Impact on Victims’ Employment Absences

- legal proceedings- obtaining medical care or psychological

counseling- safety planning- relocation

Impact on Victims’ Employment Changes in work performance On the job harassment and violence Unexplained bruises or injuries Employment resignation Employment termination

Perpetrators and the WorkplacePerformance

80% of perpetrators said their own job performance was negatively affected by their perpetration of domestic violence.

19% caused or almost caused an accident at work. In many cases supervisors were aware of the

perpetrator’s behavior but failed to confront or admonish the employee about it. (Schmidt & Barnett, 2012)

Perpetrators and the WorkplaceMissed Work

Between 42% and 51.8% of perpetrators of domestic violence were either late or missed work entirely because of their abusive behavior.

Perpetrators and the WorkplaceUse of Company Resources

More than three-quarters of perpetrators used workplace resources at least once to express remorse or anger, check up on, pressure, or threaten the victim. (Lim, et al, 2004)

NondiscriminationProtection from firing, or refusal to hire someone just because they are a survivor

DV, SA, stalking Actual or perceived Employer size Acts of abuser Proof requirements

NondiscriminationSexual Harassment

Federal Laws State Laws Local Laws

Unemployment Insurance Leaving work was necessary to protect themselves or family

from domestic violence, sexual assault or stalking 40+ states by statute or practice

– Some states include only domestic violence– Others domestic violence and stalking– Some domestic and sexual violence and stalking

Unemployment Insurance Eligibility

Last updated April 2015

For Domestic Violence & Sexual Assault Victims

D/V Free Workplace Materials DV-Free Zone campaign launch

https://www.legalmomentum.org/blog/legal-momentum-launches-its-workplace-dv-free-zone-campaign or http://ow.ly/LiNES

Link to Workplace “Bill of Rights” posterhttps://www.legalmomentum.org/resources/workplace-dv-free-zone-poster or http://ow.ly/LiNOC

Link to State Law Guide http://www.legalmomentum.org/resources/state-law-guide-employment-rights-victims-domestic-or-sexual-violence

www.workplacesrespond.orgtwitter.com/WorkplaceNRC

facebook.com/WorkplacesRespond

Federal Policy re Workplace ViolenceIn April of 2012, President Obama directed all federal agencies to create policies to address the workplace needs of employees who were survivors of domestic/sexual violence.

Federal Resources White Househttp

://www.whitehouse.gov/the-press-office/2012/04/18/we-cant-wait-president-signs-memorandum-establishing-policies-addressing

Department of Commercehttp://hr.commerce.gov/s/groups/public/@doc/@cfoasa/@ohrm/documents/content/prod01_010324.pdf

Department of Justicehttp://www.justice.gov/ovw/blog/supporting-workplaces-providing-effective-response-domestic-violence-sexual-assault-and

PRACTICAL CONSIDERATIONS

Are Domestic Violence PoliciesMandatory Subjects of Bargaining?

1. Does it contain rules that affect continuation of employment?

2. Does the policy contain any zero tolerance language?

3. Does the policy include any disciplinary consequences?

Permissive Subject of Bargaining Could the Union leadership assist in the creation of

the policy? Does the Company want Union assistance is

creating a culture of reporting incidents?

Can the presence of bargaining unit members on the committee to create the policy inform management of potential pitfalls?

Why should Companies bargain these policies?

HYPO #1

Tom and Sue are both employees of Widget, Inc. Widget, Inc. is a represented work site. Sue is a manufacturing employee; Tom works in the Warehouse. Widget, Inc. employs 500 employees, and it allows employees to date and marry so long as one employee does not supervise the other. Widget, Inc. has a domestic violence policy with a zero tolerance provision for offenders and requires victim employees to take all action to protect the workplace. Tom and Sue meet at work and begin dating. Eventually they move in together

After several months, Sue reports to work with a black eye. She tells her co-workers she fell. Several weeks later, she sprains her shoulder at home. She refuses to discuss it. Tom, however, tells his co-worker that Sue and he had a disagreement. He contends that Sue struck him, and he pushed her away. Sue fell and hurt herself.

The next month, Sue reports to work late several days in a row. She is disciplined. A week later, Sue is AWOL for two days. When Sue reports to work, Widget calls a meeting to suspend her. Sue tells her supervisor that Tom has been harming her. She claims this is why she was absent and AWOL. She refuses to seek a TRO, telling them she is afraid he will kill her if she does. Tom is stunned by her allegations and denies them. He claims Sue is unstable and has struck him, although he denies that he is a victim of domestic violence.

HYPO #2

Jane, a dishwasher at a restaurant in a small town in Iowa was dating and living with Mark, a busboy at the same restaurant. One evening during an argument at home, Mark kicked Jane. Jane called the police, who arrested Mark . Jane was issued a protective order against Mark, which included a stay away provision encompassing the workplace.

When Jane went to her employer to discuss the protective order, she asked if she and Mark could be scheduled on different shifts. The employer said he would think about it. Two days later Jane was fired. When pressed for an explanation the employer stated that because of the protective order he could only keep either Jane or Mark and that he decided to keep Mark because he was the "better," employee.

HYPO #3

Anne was an award-winning employee of her well known company, which did business in every state in the country. She had obtained a temporary protective order against her estranged spouse. She needed to go to court to make the injunction permanent

But because she had no sick or paid leave to use, she went to work instead of going to court, fearing that she might lose her job.  Her husband then showed up in her workplace, made threats, which prompted her employer to call the police. She was subsequently fired, and the employer told her that she had, "too many issues."

FINAL THOUGHTS

QUESTIONS?