September 2014

By: Walter J. Liszka, Esq.

Certainly the last few weeks have not been very pleasant for the National Football League/Roger Goodell and for the Federal Judiciary. The NFL has had to deal with domestic violence/child abuse involving its stars (Adrian Peterson, Ray Rice, Jonathan Dwyer, and, thanks to Gloria Allred, Brandon Marshall from a 2007 incident) and the Federal Judiciary has had to deal with the spousal abuse of United States District Court Judge Mark Fuller, an Alabama Federal Judge, who took a plea deal for beating his wife in August. While the drumbeats have been extremely loud for Commissioner Goodell to resign and for Judge Fuller to give up his lifetime appointment as a Federal Jurist, all of these cases point to the fact that no one and no employer can fully insulate itself from the scrutiny and polarizing beliefs if someone is accused of domestic violence/child abuse.

While one can critique the actions being taken by the NFL/Goodell and the Federal Judiciary as an “armchair quarterback with 20/20 hindsight,” every employer should recognize the fact that, but for the grace of God, that could be you and your company. What should an employer do to be proactive in this arena? While there are no short and easy answers to this situation, there are some ideas for consideration.

What if your employee is the victim of domestic violence?

• If you do not already have one, adopt a policy on domestic violence and encourage your employees to get help. A Human Resource Department would be a wonderful locus to house information about community resources for domestic violence victims (shelters, family counseling, social and legal services). This information can also be posted on the company intranet and bulletin boards. Check to see if the medical plan can provide or is providing an employee assistance program.
• Become familiar with state laws and the rights of domestic violence victims. Does state law where you operate provide protection for the individual who must miss work because they are the victim of domestic violence?
• Be supportive and encouraging to the involved employee and provide legally required time off and, in some cases, voluntary and over and above legally required time off for the individual to make court appearances, get medical treatment, seek out counseling, and deal with all the other factors with which the domestic violence victim is dealing.
• Ask for permission from the employee abuse victim to communicate with his/her fellow employees to provide support and to “pitch in” to get the work done. This can be (will be) a positive morale booster!

What if your employee is the one responsible for or accused of being the perpetrator of domestic violence?

• Do not automatically assume that you can just fire that individual for being involved in this type of activity while off-duty. They may not be guilty – it is commonly known that domestic abuse allegations sometimes arise as part of leverage in divorce or child custody proceedings. Secondly, even assuming the individual is guilty, an employer may be subject to being sued for a questionable discharge, unless you can show that the abuse has a clear connection to the work environment. For example, if the victim of the abuse and the perpetrator both work for you, it might be much easier to establish a connection to the work environment and allow a “quick termination.”
• Communicate and enforce your existing policies allowing for termination against threatening, abusive or violent behavior in the workplace.
• Also remember that if the individual is involved in some off-duty activity, failure to report to work in violation of an attendance policy or, in the alternative, failure to call in to notify an absence may be a valid basis to terminate.

No one knows where all of the answers are to this vexing problem. But one thing is very clear – no employer is immune to scrutiny if domestic violence/child abuse rears its ugly head!

Questions? Contact Founder and Senior Shareholder Richard H. Wessels of Wessels Sherman’s St. Charles office at (630) 377-1554 or by email at rwessels@wesselssherman.com.