Model Domestic Violence
Policy for Counties
The responsibility of employers to respond effectively to victims and perpetrators of domestic violence in their employ extends to employers across all systems. Public agencies, with the active involvement of employee unions and other employee organizations, should ensure that existing employee assistance programs, work/family and health benefits, security and supervisory policies, and/or workplace violence policies apply to and are responsive to the needs of victims of domestic violence, and should encourage all agencies with which they contract to do the same. Because employers' responses must be consistent with existing collective bargaining agreements, employers should also encourage labor unions to develop union policy and to adopt contract language that addresses domestic violence.
Research suggests that as many as 74% of working battered women are harassed by their abusive partners on the job; and, of them, each year 45% miss at least 18 days of work; 56% are late for work on at least 60 days; and 28% leave early on at least 60 days.(20) Another study found that 20% of working battered women lose their jobs altogether.(21) Battered women consistently identify the lack of financial resources as a primary obstacle to separating from their abusive partners. For working women, battering can further weaken their financial security by compromising their ability to perform and keep their jobs.
In addition, on-the-job harassment of employees by abusive partners may also threaten the safety of co-workers at the job site. Protecting the health and safety of all employees is in the interest of both employer and employee, reducing unnecessary turnover and abuse-related costs to the victim and co-workers, and enhancing continued employee well-being and productivity. Having well-defined responses to domestic violence in the workplace will also better protect employers from potential liability. Whether employers are large or small, have an Employee Assistance Program (EAP) or not, security staff or not, the policy recommendations that follow should provide useful guidance.
In addition to incorporating the recommendations outlined in the Guiding Principles into their responses to domestic violence, employers should also integrate the following recommendations specific to employers. The following policy recommendations do not necessarily require the development of new, domestic violence-specific policies or programs. Evaluation and modification of existing policies may be all that's required.
Battered women often legitimately fear that there will be negative consequences if they disclose to their employers that they are victims of domestic violence. Employers' first responsibility, therefore, is to create an environment of support and safety for victims to come forward. Health promotion can take many forms, including the availability of written information in private locations such as women's rest rooms, prominent display of posters informing employees of available assistance for domestic violence, inclusion of information on domestic violence in new employees' benefit packages, Employee Assistance Programs in the workplace, available support from union and labor representatives, distribution of brochures/handbooks/flyers on domestic violence to all employees, articles about domestic violence in agency publications, and lunch-time informational programs.
Effective November 1, 1996, Chapter 331 of the Laws of 1996 made it a crime for employers to penalize an employee who, as a victim or witness of a criminal offense, is required or chooses to appear as a witness, consult with the district attorney, or to exercise his/her rights as provided in the Criminal Procedure Law, the Family Court Act, and the Executive Law. The law requires employers, with prior day notification, to allow time off for victims or witnesses to pursue legal action related to domestic violence.
In addition to compliance with the law, however, employers should allow employees to use accrued time off, including personal, sick, and vacation time, if necessary. Where shift work, flexible schedules, or compressed work weeks are feasible, employees should be given these options. Employers should also review and, if necessary, modify any existing Family Leave policies to ensure that leave for reasons due to domestic violence is clearly and specifically permitted.hen employer policies require employees to submit documentation to justify their requests for these benefits, employers should be aware that victims of domestic violence often lack such documentation, such as orders of protection, medical records, or police reports. Further, employers should not require an employee to obtain these specific kinds of documentation because making a police report or petitioning for an order of protection may not be viable, safe, or desirable options for any particular victim. Instead, employers should consult with the employee to identify what documentation she might have or be able to get that won't compromise her safety-related needs and that will satisfactorily meet the documentation requirement of the employer.
When victims of domestic violence separate from their abusive partners, with or without a legal separation, divorce, or temporary or permanent order of protection, they may need to obtain benefits in their own names, particularly if these were previously obtained through the abusive partner. Such changes may be needed to prevent the abuser from obtaining information about the location of the employee's new home, as well as information about the identity and address of health care providers. Similarly, pay checks are often deposited automatically to employee bank accounts. Employers should expedite requests for changing the process of electronic transfers in order to assist victims who are employees to protect themselves and their dependents and to protect their financial resources.
Many agencies have emergency procedures already in place to deal with trespassing, violence in the workplace, and harassment. It is important to evaluate existing policies to ensure that they are appropriate to domestic violence situations, including stalking. With the consent of the victim, individualized workplace safety plans may include advising co-employees of the situation; setting up procedures for alerting security and/or the police; temporary relocation of the victim to a secure area; options for transfer or permanent relocation to a new work site; reassignment of parking space; escort for entry to and exit from the building; dealing with telephone or mail harassment; and plans for addressing identified contingencies.
Employee Assistance Program representatives can be valuable resources to supervisors, managers, human resource personnel, and union representatives, as well as to employees themselves. EAP staff who are appropriately trained can provide knowledgeable referrals to community-based domestic violence service programs, can provide initial and ongoing support, problem-solving and safety-planning assistance and, with the consent of the victim, can serve as a liaison between the employee and other involved parties.
Employers should consider the input of the victim in developing a response plan but must also maintain a responsibility to respond quickly to the safety-related needs of other employees.
The victim should be consulted in making decisions about employee relocations and should not be involuntarily penalized by this process.
Education, employment history, skills, and willingness and ability to do the work are the only valid considerations in making recruiting and staffing decisions.
In New York State, Chapter 174 of the Laws of 1996 prohibits insurance companies and health maintenance organizations from discriminating against domestic violence victims. It specifically outlaws designating domestic violence as a preexisting condition and denying or canceling an insurance policy or requiring a higher premium or payment where the insured is/has been a domestic violence victim. Current or past exposure to domestic violence is not in and of itself a pre-existing condition and should not be considered in underwriting health and/or life insurance. Impairments arising from domestic violence should be evaluated in the same way as those arising from other causes; that is, to determine if there is an increased risk of mortality or morbidity as a result of those injuries or health impairments.
While performance problems caused by domestic violence should be addressed proactively through the recommendations set forth above, being a victim of domestic violence is not a problem that is easily solved and performance difficulties often persist. Though the progressive discipline process itself should be applied consistently and fairly to all employees, including those who are domestic violence victims, employers should attempt to make every reasonable accommodation possible within the framework of that process.
If, after taking all possible measures to resolve the performance-related problems without success, employers decide to terminate an employee, or a victimized employee resigns, employers should inform victims of their potential eligibility for unemployment insurance, and should respond quickly to any requests for information that may be needed in the claims process. Although New York State Law does not include a provision specifically relating to an individual who is separated from employment due to circumstances involving domestic violence, §593 of New York State Labor Law regarding eligibility for unemployment insurance includes a "good cause" provision. Under this provision, victims of domestic violence can be found eligible for unemployment insurance provided they have made reasonable efforts to protect themselves and their jobs.
Within all of the systems included in this policy, there are employees that are in positions in which they have authority to intentionally take actions that may cause harm to victims and/or collude with abusers. This is probably not the case for all employees within a given system, however. For example, clerical staff or financial management staff within a substance abuse treatment program might not have the authority to take actions that could cause harm to victims or collude with abusers receiving services in the program, but a treatment counselor, clinical supervisor, and/or security guard might very well have such authority.
An issue of concern in taking corrective action against an employee who is arrested for a domestic violence offense is the possibility that the employee is, in fact, the victim of domestic violence, rather than the abuser. Chapter 4 of the Laws of 1997, effective January 12, 1998, states that, in family offense cases, where both parties allege an offense, arrest of both parties is not required if an officer believes one party was acting in self-defense, and, in misdemeanor cross-complaint cases, police are required to arrest the primary physical aggressor. Nonetheless, arrests of victims may still occur. An important consideration in conducting a thorough investigation that would prevent employees who are victims from being unfairly penalized on the job, therefore, is to attempt to determine if an arrest has been made for an offense that was committed in self-defense.
See discussion in 2. b. above.
While there is no fool-proof way to accurately assess the potential lethality of abusers, the likelihood of homicide is greater when abusers own and have access to weapons and have used them or threatened to use them in the past in their assaults against their partners, their children, family pets, or themselves. The use of guns, in particular, is a strong predictor of homicide. In fact, the 1997 report by the New York State Commission on Domestic Violence Fatalities found that guns were the weapons of choice in most domestic homicides.
Neither New York State Law, nor federal law prohibits possession of a firearm simply because a domestic violence arrest has been effected. However, employers should develop policies that require employees who are authorized to carry a firearm as part of their job responsibilities to notify the employer if they are arrested on a domestic violence offense and/or served with an order of protection. The employer should require the immediate surrender of all weapons in the employee's custody to a specified representative of the agency/department, pending an investigation. Under New York law, a person who is the named respondent or defendant on an order of protection may have to surrender his firearms while that order is in effect. Under federal law, it is a crime for that same person to possess a gun while an order of protection is in effect (subject to a limited exception for law enforcement officers who must carry guns).
Both New York State law and federal law make it unlawful, under certain circumstances, for a person convicted of a domestic violence-related crime to possess a gun. The federal law further prohibits a person convicted of a "misdemeanor crime of domestic violence" to ship, transport, possess or receive firearms or ammunition. Law enforcement officers are not exempt from this federal prohibition, and it applies no matter when the misdemeanor conviction occurred, even if prior to the amendment to the Gun Control Act, as long as the crimes were not expunged, set aside, or pardoned, or the person had his or her civil rights restored. Qualifying misdemeanors are those which involved "use or attempted use of physical force or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated as a spouse, parent or guardian of the victim." Employers must require that such persons surrender their firearms and ammunition to their attorney or to their local police agency.
Training on domestic violence in the workplace should include information on the ways in which domestic violence impacts on the workplace, including the potential impact on worker productivity, in addition to a general overview of domestic violence as outlined in the Guiding Principles, 3.a.. Training should be thorough and ongoing.
(20) New York City Victim Services Agency, Report on the Costs of Domestic Violence, 1987.
(21) Schechter and Gray, "A Framework for Understanding and Empowering Battered Women," in Abuse and Victimization Across the Life Span, ed., Straus, 1988.