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Oct. 31 — When a worker is accused but not convicted of domestic violence, the employer has a difficult balancing act to pull off, attorneys and security consultants say.
This chronic problem hit the headlines recently when Josh Brown, a kicker for the New York Giants football team, was suspended for violating the league policy on domestic abuse. Like the National Football League in that case, employers are often put in a difficult position.
The Giants released Brown Oct. 25.
“There are not a lot of black-and-white answers, and there are a lot of nuances,” Benjamin L. Webster, office managing shareholder for management-side law firm Littler Mendelson in Sacramento, Calif., told Bloomberg BNA Oct. 26. “The old, traditional view is ‘what happens at home is a private matter, and let’s focus on what happens on the clock.’ But more and more, we are seeing incidents spill over into the workplace.”
“You have to balance the employer’s duty to provide a safe workplace with the employee’s right to privacy,” said Webster, who does workplace violence training for the state of California. Employers also must make sure that incidents occurring off-duty don’t cause problems in the workplace.
Yet another factor employers must consider is ensuring that any adverse actions taken don’t raise the potential for racial and other disparate treatment claims, he said. For example, if “a white female gets a slap on the wrist” for the same thing that gets a black male employee fired, the employer is liable to be sued for discrimination, he said. Employers should review the Equal Employment Opportunity Commission’s Enforcement Guidance on “ Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, ” he said.
“In a context where there’s an arrest and a trial is on the horizon, the fundamental notion in America of ‘innocent until proven guilty’ comes into play,” Webster said. “A policy that says the employer will discipline the employee on arrest would be unwise and illegal, but if an employee who has been accused of a very violent act runs amok in the workplace, the employer could be liable.”
Matthew Doherty offered a similar take. The employee would be “entitled to due process” while the accuser files reports with local law enforcement and social services authorities, the senior vice president of security risk management security firm Hillard Heintze told Bloomberg BNA Oct. 27. Meanwhile the accused employee is “also entitled to due process in a company’s employment policies and procedures,” he said. The company is based in Chicago.
Any such situation “should be monitored” by the employer, which should “get a copy of the restraining order to see what type of behavior is alleged,” Doherty said. The employer should try to figure out whether, for example, the allegations might have been made falsely in the context of a child custody dispute, or are a serious accusation of domestic abuse.
It’s a question, Webster said, of weighing the “likely prospect of a lawsuit if the employer decides to fire or not hire” someone who has been arrested for, but not found guilty of, domestic violence, versus the prospect of a lawsuit if the accused returns to work and engages in violence. “You’re damned if you do, damned if you don’t,” he said.
The best move for an employer, Webster said, would be to do a “fact-intensive analysis” that takes into account:
“You can’t consider the fact of an arrest to take an adverse action” against an employee, Webster said. On the other hand, with workplace violence, including mass shootings, on the rise, “employers have to pay close attention, more than they did 10 years ago,” to these situations, he said. If the employer does decide to suspend or terminate an employee before the case is decided in court, he said, “consider offering severance so they won’t sue you for wrongful termination.”
Of course, employees may also be victims of domestic violence. Underlining the gravity of the problem, the Labor Department says one in three (33 percent) of women killed in the workplace are domestic violence victims, Doherty noted.
“Many progressive workplaces are encouraging employees who have a restraining order to bring it to the attention of HR so they can take steps to protect them,” Doherty said.
Extra measures are often needed in such cases. “Oftentimes, a restraining order is requested for the employee where they live, and police departments don’t tend to share that type of information,” Doherty said. “So the employer can share that with the local police department” where the workplace is located, he said, as well as sharing a picture of the alleged perpetrator of domestic violence targeted in the restraining order, and setting up a protected area the employee can use to enter and exit the workplace.
In the bad old days, employers would often fire a woman who “showed up for work with a black eye,” Doherty said. “But now it’s against most state labor laws to deny someone employment or promotion because they are a victim of domestic violence,” he said.
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The EEOC guidance is at https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
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