Creating a Culture of Support: Five Essentials for Assisting Employee-Victims of Domestic Violence, Sexual Assault, Stalking

By Erin Winters, Esq. – Pacific Employment Law LLP

In response to the rising need for creating a “Culture of Support,” employers must now develop a proactive and comprehensive response program to assist employee-victims of domestic violence, sexual assault, and stalking (DVSAS).

Consider these five best practices developed as a result of the recent passing of dozens of state and local laws addressing the rights of employee-victims:

#1. Recognize that Abuse is Prevalent and Develop a Workplace Response

DVSAS affects the lives of millions in the United States. One in four women and one in seven men will experience physical violence by an intimate partner in their lifetime, according to published reports.

The professional lives of victims are also impacted – nearly 8 million days of paid work each year or the equivalent of more than 32,000 full-time jobs are lost annually due to domestic violence issues, according to the Centers of Disease Control. Job performance declines and absenteeism increases when employees need to seek medical attention, obtain a restraining order, or find a safe place to stay because of the abuse.

Employers should be proactive in creating a support program. A coordinated and prompt response can ensure employee safety and is necessary when an employee approaches Human Resources  or a manager recognizes that employee assistance may be needed. Companies with multi-state operations will have to analyze the location of their workforce and determine whether a one size fits all or a hyper-local approach is appropriate.

#2. Identify Victim Protections and Navigate the Myriad of State and Local Laws

Protections for victims exist in three areas: (a) Anti-discrimination, harassment, and retaliation rights; (b) Unpaid leaves of absence, paid sick leave, and paid safe time; and (c) Workplace accommodations.

State and local governments have stepped in to support victims, who often experience higher rates of chronic illnesses and limitations in life activities.  States, cities, and counties in almost every state, as well as Puerto Rico, have passed or are considering legislation that addresses workplace anti-discrimination, retaliation, and harassment protections and/or leave rights for victims in addition to existing protections for crime victims and job-protected leaves for health conditions (e.g. federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA).

Victims will need to be away from the workplace to obtain protective or restraining orders, engage in safety planning, seek medical care and counseling, or find a place to live. Unpaid leave time may also be converted to paid time off as a result of local and state laws that provide for paid sick and paid safe time that allow employees to seek services such as counseling, safety planning or attend and prepare for legal proceedings related to abuse.

#3. Create an Action Plan

Organizations should identify a point person to assist employee-victims. Managers and human resources professionals must be trained on available leave options, including proper designation and tracking, as well as confidentiality requirements.

Interactive process coordinators must also be involved to identify reasonable accommodations for victims who may need modified work schedules or a transfer to a new work location. California requires workplace “changes” to ensure safety, including installation of locks, changing employee shifts or telephone numbers, reassignments, or keeping a record of what happened to employees.

Employers should also be aware that a majority of states provide unemployment benefits for victims who are forced to leave their jobs.

#4. Educate Employees

Employees who have been informed of their rights to leaves of absence, paid time off, workplace accommodations, and anti-discrimination, harassment, and retaliation provisions will be aware of available protections (and not be fearful of losing their job) when an abuser prevents them from attending work by disabling their car, sabotaging childcare arrangements, or leaving them without cash for public transportation.

Employees with protective orders against their abusers need to be informed about the point person at their workplace, so they know who should be informed of the protective order.  and employers must comply with the requirements of any protective order, which may include taking steps to limit or prohibit contact between certain employees.

Employers may also be able to seek a workplace restraining order on behalf of an employee who is suffering abuse while on company property, such as being stalked in the parking lot or harassed by a co-worker.

#5. Review Policies, Onboarding Documents, and Workplace Postings

Policies and handbooks should designate employee victims as a protected class as required by state and local law and include information about available paid and unpaid leave time. For some locations, onboarding document packages and workplace postings may need to be updated to include forms outlining available rights. In California, the Rights of Victims of Domestic Violence, Sexual Assault and Stalking Notice form must be posted and provided to employees at the time of hire.

The California notice outlines employee anti-discrimination, harassment, and retaliation provisions as well as workplace accommodation rights. Notices should be in posted in languages other than English as needed, based on workforce demographics.

Also consider distributing or posting a list of designated employees appointed to support and provide resources to victims, as well as information about employee assistance programs.

In Summary

These five essentials are the foundation of a proactive workplace response to DVSAS. A coordinated safety response will allow an employer to provide adequate resources for situations that often involve an immediate danger and require a rapid response.

About the Author

Erin Winters Esq.
Of Counsel, Pacific Employment Law LLP

Erin Winters provides advice and counsel to businesses of all sizes on California and federal employment law, including leaves of absence, EEO matters, and terminations of employment.  She also assists employers with performance management, handbook reviews, policy development, training, RIF planning, and a variety human-resource related projects. Ms. Winters has successfully defended employers in federal and state court actions involving claims of employment discrimination, wage and hour violations, and other employment-related issues.  She has also represented clients in state and federal administrative proceedings. She was selected to the 2018 Northern California Rising Stars list. She is a Board Member of the Northern California Employment Roundtable and a former member of the Alameda County Bar Association Labor and Employment Executive Committee.
Winters and her colleague, Maureen Bogue Esq., founder of Pacific Employment Law LLP,  presented their session, Domestic Violence, Sexual Assault, and Stalking: Victim Rights at HR West 2019. 

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