Victim of domestic violence fired

dbrocker

I just read the July edition of the AZ Employment Law Letter and was stunned by a recent Superior Court decision in the state of N. Carolina that dismissed the case of a City of Asheville employee who was fired because they were injured in a domestic violence situation and required time off to recuperate from the injury and subsequent surgery that took place. The reason cited for the decision was that because victims of domestic violence are not placed in a protected category for at-will-employment, the employer can terminate an employee "...for no reason, or for an arbitrary or irrational reason..."

Here's my question: Could the employee have prevailed if they had cited the employer was in violation of their rights under the Family Medical Leave Act?

It's not that I'm anxious to open the door for more employment litigation, but the decision to terminate the employee in this case and for the reason cited seems immoral if not unethical to me.x:o

Crout

I didn't read the article, but suppose you had an employee who DID NOT qualify for FMLA? In that case, the employee would have to resign and re-apply at a later date when she was back on her feet. It's a tough situation, but you can't carve out a separate policy to cover one individual.

dbrocker

In our company, the employee would be offered personal leave if they didn't qualify for FMLA. Which I think is an acceptable way to handle this.

You know...I understand that legally the employer in this case had the 'right' to terminate but I wonder what the decision did for the morale of their workforce?? A company wouldn't need to 'carve out a separate policy for one individual' providing similar situations were handled the same way, i.e., some type of leave were offered.

Sometimes, I think organizations can get so wrapped up in their policies they forget there are human beings involved who, unfortunately, don't live in a world that's 'cut and dried'.

pork1

I would have to assume the ee was not entitled to FMLA or the company would have taken that opportunity in the first place. In our company policy, we can give the ee up to six weeks of "personal time off without pay" but they must pay their medical premiums in advance and only if the physician can have the ee back to work within the 6 weeks. Otherwise, we also have no place to go but the termination route. We must remain constant with execution of our company policy and procedures. I agree it sounds harsh but otherwise, consistency and fair to all others who might by chance fall into a very similar situation.

PORK

dbrocker

We have a similar policy concerning personal leave which is what we would have offered this employee. I agree that policies need to be followed in a consistent and fair manner, however, should policies remove the 'human' from human resources? Just a thought...

mwild31

[font size="1" color="#FF0000"]LAST EDITED ON 08-02-04 AT 07:22PM (CST)[/font][br][br]I think, in this case, when you start to go outside of policy, you really start a slippery slope. I too didn't read the article, but what if they HAD allowed the ee to stay, then what does that do for the next ee who walks in the door and wants time off because they got into a bungee jumping accident and need to recover or time off to mourn for their beloved pet dog that died, etc. Or, as awful as this sounds, determine if the ee was really involved in domestic violence or got into a fight at the local bar the past weekend? Extremes happen and then this agency/company is on the hook for precedence and determining which request is more important or more palatable than another. I'm not trying to minimize domestic violence - it's awful - but maybe the court was trying to equalize it in the eyes of the law?

rad

I'm not really answering your question, just putting my 2 cents in.

I did my HR Law paper on this topic so I dug it out. Some of my info may be old, I'm sure the M Lee Smith attorneys will jump on in where I've goofed.

Although there is no law that protects victims of domestic violence against termination, there is a Congressional bill pending (as of 4/03) called VESSA - Victims Economic Safety and Security Act. I've been trying to find an update but haven't come across anything. In Massachusetts, a victim of domestic violence sued her employer for wrongful termination after she took a day off to get a restraining order and won, the MA supreme court denied the employer's motion to dismiss, citing that the employer was in violation of Public Policy.

Labor Law 593 (1) allows for a "separation for good cause" clause so the victim may collect unemployment.

This is another soap box for me...imagine being beaten, too humiliated to come to work, or downright unable to, and being fired. I have to ask if the same apathy would be shown to someone who is injured in a car accident. I am so glad I work for a company that has a zero tolerance policy on violence, including when that violence happens behind closed doors.

Ok, I'm done.

dbrocker

Thanks for the information. I, too, wondered about a "victim's rights bill" and how it might affect a decision such as this. Nice to know something's in the works.

pork1

Just leave it to MASS, Kerry, Kennedy,and other liberal Democrats to add yet another protected class. Pretty soon everyone will be protected and be no need to be producing something of value for the cost will be so stiff at home that it can easily be found in India, China, Iran, or some other place in the world for cheaper quality and cheaper price. It is just this kinda of raw social thinking that leads to yet more protected classes and the litigation that goes with it and the medical cost to boot. Who pays for an employees medical cost? The insurance company, third party administrator, the company, the concerned individual, and ever other member of the plan pay for the cost of each member's medical cost. Many a company has decided to forgo having a medical plan and just give the ee the premium dollars and let them get their own, so that benefit cost can be reduced and thus the cost of business reduced.

Only in America CAN WE GET IT ALL AND PAY ANY PRICE FOR IT ALL! I DESERVE IT, SO YA'LL SUCK IT UP AND TAKE CARE OF ME, I'M PROTECTED AND IT IS TIME FOR ME TO FULLY QUIT AND COLLECT ON YOUR GOOD WORKS!

And I want more PORK, while you are at it and cooked to profection with an ice cold beer served with a smile at 4 PM each Sunday afternoon, under my biggest oak tree.

PORK

rad

Pork, nowhere in my post do I suggest making victims a protected class. I am passing along information garndered from research.

We have a Republican governer and have for about 15 years. It gives us a good balance. We're not all bleeding-heart liberals here but I do like to believe that, as the founders of freedom, we are fair. I don't always agree with the decisions my government makes, but I've led a happy and prosperous life in Mass so I have no major complaints.

If you break down the costs of domestic violence that employers suffer every year, taking a day to get a restraining order pales in comparison. What is more expensive - one personal day or sick days and medical care to cover injuries incurred when a woman has the crap beaten out of her? Maybe it would be cheaper to forget all that and have your other employees pitch in 5 bucks each for flowers when she's dead.

awilliams

I did a little research on VESSA. Illinois passed a VESSA law in 2003, and the Illinois DOL just promulgated regulations which set out when/how an employee would qualify for up to 12 weeks of leave.

If this comes up in your workplace, you may want to check out whether your state has a VESSA-type law.


Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

Crout

rad, I think your example is well taken, but firing someone for taking ONE day off is extreme and much different than going outside of policy to grant an extended leave of absence.

rad

You're right, thats why I offered the information as information only, not a solution on the original post. But I have to ask myself what happened that this woman ended up in surgery, aside from the obvious beating, of course. Did she feel her employer would not support her for one day off for a restraining order? I am making assumptions here, do not misunderstand me. But, as a woman, I am very passionate about this subject. I do not think that employers should baby sit or be there to hand hold employees through life. But we just recently got the authorities to see that domestic violence is a real problem, back in the day it was a personal matter between a man and woman. Employers need to respond to that too. I can't believe some employers are more concerned with camera phones in the office than that one of their employees is being battered.

I've never been beaten but I've been stalked. I was allowed a day without pay to go to court to take care of what I needed to do. Had they said no, who knows what would have happened? I truly believe he would have killed me.

Crout

For me this is a real tug of war between the head and the heart. As a HR professional, I look at VESSA and absolutely cringe. Why is 12 weeks always the magic number? Why not 8? Why does it have to be in addition to FMLA? I have vivid memories of the abuses that occurred when FMLA came out...it was like a free-for-all. I think that companies were hesitant to draw a firm line and demand what they were entitled to demand, and I can imagine similar things happening if VESSA is ever passed. Illinois has a VESSA law on the books. I wonder how it's working out for them? On the other hand, I have a 13 year-old daughter who looks like Uma Thurman, and has had no less than two occurrences of predators exposing themselves to her. So yeah, I share the fears of many women, but I just have to question the wisdom of creating an entitlement that serves the needs of a relatively small percentage of the work force....by that I mean the women who are the victims of violence.

rad

I know, we have had rampant FMLA abuse at my place. But I think VESSA is a knee jerk reaction to years of domestic violence being ignored and given the "not my problem" treatment. You know, like for years we got nothing, now we want it all type of reaction.

lorrie

Another view:

What about the victim that continues to go back to the abusing jerk, time and time again? Should she get repeated leaves of absence (all domestic violence related)? What about the danger this puts her company and co-workers in because there is an increased possibility that this guy will go to her workplace - and co-workers can get involved in the violence?

Please don't think I am being insensitive to the victim. My daughter is the one who is 5-6 months pregnant and continues to return to the scumbag. Being pregnant does not stop the abuse. In fact he goes to court this afternoon to face domestic violence charges that came about when his neighbor called the police. My daughter won't testify against him. I've spoken to the victim's advocate at the court. He will get probation and a fine. Who will pay his fine? My daughter will, because he won't work. It's ok for her to work fast food, but he's waiting for a 'good job.'

How does this happen? I have no idea. My daughter was a popular, athletic high school student. I would never have imagined that she could fall in this trap.

But aside from all the personal feelings about this, I realize that when a victim continues to return to the abuse, she places other people in danger also. Yet I realize that a restraining order is not worth the paper it is written on. Sometimes a victim might feel they are diffusing a situation by returning, because staying away will make him madder. Just last week in this area a man stabbed his girlfriend to death, then went to his ex-wife's house and stabbed her. Her new husband shot the guy and killed him. I understand that man had just spent about 9-10 years in jail after being convicted of trying to kill the ex-wife. I don't know what the answer is, but I realize that an employer has an obligation to take reasonable measures to protect the workforce as a whole also.

Again, I certainly don't know the answers, but I know there are many, many sides to this issue.

marc

Direct the EE to get in contact with Social Services and ask who locally is managing the VOCA programs. VOCA (Victims of Crime Act), has money to help these people. They can also provide free counseling and other such services. And by the way, this victim probably has grounds for a civil suit involving loss of wages, etc. The VOCA programs may be able to help in this area as well, but if not, perhaps she can find a local attorney to take on the case.

Tony Kessler

Very interesting thread. I went back and read the Arizona newsletter article, and you can, too. It's already on this website in the newsletter archives. After you log in on the home page, do a search in the archives for "Domestic violence" in "Arizona" in "2004." A link should pop up to the article titled, "Bus driver fired for being victim of domestic violence loses suit."

In a nutshell, the article points out that the bus driver was shot by his wife for allegedly engaging in an extramarital affair. In other words, it wasn't the usual scenario for a domestic violence situation. Hope this helps. tk

Balloonman1

Fact is, if not eligible for FMLA, and all leave was exhausted the employer needs to be consistent in application of thier policies, end of discussion. While we all want to be "human" and sympathetic, the issue is attendance and ability to work, not what is preventing them from being at work.
My $0.02 worth,
DJ The Balloonman

lorrie

The article is very interesting. I just now read it also.

My understanding is that he was fired specifically because of the domestic abuse issue, and not because he needed time to recuperate from the wound. So to answer the original question: My opinion is that he would not have prevailed on FMLA issues, since time away was not the reason for termination.

Of course what we don't know is the rest of this guy's history. I think the article said he had been employed well over 20 years. I would hope that he would not have been fired if this were an isolated incident for an otherwise star performer, but who knows.

Crout

Who's this DJ the Balloonman guy? We used to have someone by that name post the occasional response, but just before July 19, (Black Monday in HRhero mythology) he posted a tearful farewell. Frankly, I'm offended by this imposter. I'll bet this guy doesn't even ride a bike.

Leslie

The three month reprieve is a wonderful thing, Crout.

We're like Pork. For those who don't qualify for FMLA, they get a max four weeks. If unable to return, we term.

To give more time to the domestic violence victim rather than, say, the lady involved in a car accident that wasn't her fault, or the lady mugged on her way out of the grocery store would simply not work.

dbrocker

>The three month reprieve is a wonderful thing,
>Crout.
>
>We're like Pork. For those who don't qualify
>for FMLA, they get a max four weeks. If unable
>to return, we term.
>
>To give more time to the domestic violence
>victim rather than, say, the lady involved in a
>car accident that wasn't her fault, or the lady
>mugged on her way out of the grocery store would
>simply not work.


Funny thing...I don't think anything was mentioned about giving someone who's a victim of domestic violence (or any other crime for that matter) any more time than someone who was in a car accident, etc., nor do I support making a crime victim a protected class. What I do wonder, though, is how that employer would have responded if the employee had been in a car accident...would the response have been the same? I wonder...

mwild31

[font size="1" color="#FF0000"]LAST EDITED ON 08-04-04 AT 11:58AM (CST)[/font][br][br]x:-/ I guess wondering is a good thing, but none of us know the details at the company that made the decision. It sounds like they felt strongly enough in their position, knowing the details, to pursue the legal route and cost. Good thread - thanks for posting it. x:-)

Don D

I would assume, if there was no information to the contrary, that the company would have made the same decision in other situations. Because there's a lot of emotionalism attached to this particular situation does not make me automatically question WHAT IF. But, if I were to engage in the 'what if' trainride, it would be apropriate to also wonder, what if work had been missed because: The employee was hit by a trck loaded with explosives, was the victim of a jealous wife, had been attending to a terminally ill partner with aids, had been bitten by a large animal in a PETA protest, had climbed a pine tree naked during save the owl day and had inadvertently slid 50 feet down the tree injuring multiple body parts, or was a 66 year old employee in a wheelchair who fell under a bus while attempting to hail public transportation. All or none of them might signal an unfair, uncaring employer.

Leslie

Where the employee screwed up is by filing the lawsuit for wrongful termination rather than renegging on his FMLA rights - if he indeed qualified for them.

He was fired at-will because of his domestic violence injuries. He did not prove that the public policy he said was violated (member of a class of persons sought to be protected by the laws of the state of NC) was a public policy that was actually "codified in the state's constitution or laws." Because in NC, as AZ, domestic violence victim's are only "sought to be protected..." - there is no actually law.

However, it still amazes me that he lost this one.

pork1

YES, young man cracks his person up in a motorcycle accident finished his 12 weeks, applied for our company additional 14 week medical program; however, the physician gave him no chance of returning to the work force within the next 14 weeks. Unfortunately, a good young manager who was medically disqualified and was terminated. His vehicle insurance company picked him up on their long term disability. We dropped his enrollment in our company and he went on COBRA. No longer employed and no longer on our insurance coverage, remains unable to use his left side of arm and hand. He has applied for SSI disability and his physicians are helping him; he has asked for his position in management back, but he is no longer medically qualified to do the essential functions of the position and the live animal arena would now be a danger to him and others.

PORK

Crout

Good example. This is what is generally known as "life." It is sometimes unfair.

Balloonman1

THe other DJ The Balloonman was my twin Crout. 31 miles this last Saturday, hoping to do 40+ on the bike this Saturday. :-D
So you know,
THis is my $0.02 worth,
DJ The Balloonman

Don D

What's with all the 1s appearing after screen names nowadays? Would this by any chance indicate that those persons are trying to attempt to 'turn over a new leaf'? Naaaa......just a thought. x:D

pork1

Don mine came about as a result of the renewal of subscription. I was temporarily locked out of the new system, even though a listed subscriber. I was restarted but had to have a new password, tried to use the old PORK but that did not work either so I had to add the 1 inorder for the password to work. That might be the reason for the 1's but it has nothing to do with "turning a new leaf", I am the same olde PORK with a new flare!

PORK, and a "Dandy one at that"!