Consider Possible Legal Liabilities
An employer’s legal liability for violence in the workplace, including domestic violence spilling into the workplace, presents numerous opportunities and challenges.
· The opportunities involve developing policies and procedures that facilitate a safe work environment, thus promoting enhanced productivity and job satisfaction.
· The challenges involve balancing the competing legal interests of right to privacy, regulatory mandates (OSHA), statutory mandates (FMLA, ADA, worker’s compensation, etc.), and common law claims related to employing a violent individual (negligent hiring and retention). (Source CBA4)
An employer’s potential liability differs with each case. Case law and statutes create an interesting tension between an employer’s duty to prevent/intervene in potentially violence situations and an employee’s right to privacy. Employers need to work with their legal departments or employment law attorneys to determine their best legal strategies. (Source CBA4)
Domestic violence may raise a variety of legal issues. Examples include:
· Criminal: A batterer may stalk or assault his/her partner or others in the workplace or harassment may occur between two co-workers in a dating or marital relationship.
· Federal Regulation: Occupational safety and health laws generally require employers to maintain a safe workplace.
· Federal Statutes: Family and medical leave laws may require employers to grant leave to employees who are coping with domestic violence situations.
· Discrimination Laws: Disability discrimination laws may be applicable in cases in which a victim has suffered injury from abuse
· Sexual Harassment: Dating violence between co-workers has a potential of resulting in a sexual harassment claim.
· Privacy Torts: The right of an employee (whether victim, perpetrator or witness) to privacy needs to be balanced against security, safety, and legal obligations of the organization and its other employees.
· Negligence: If an employer knows that an employee or a potential employee poses a danger to other employees, and the employer fails to take remedial action, claims may be filed against an employer under theories of negligent hiring, negligent retention, or negligent supervision. (Source CBA1)
Employers can protect themselves from legal liabilities by:
· Establishing and enforcing workplace violence policies and procedures, including policies and procedures on domestic violence spilling into the workplace. Those policies should include:
o Clear anti-violence and sexual harassment policies.
o Confidentiality policies and procedures.
o Reporting procedures.
o Common sense security procedures.
o Training procedures.
Review the top legal liabilities that employers face regarding domestic violence and the workplace.
Other ways to be proactive in dealing with domestic violence:
Make materials and resources accessible and available.
Develop contacts with local domestic violence service providers.
Develop contacts with local law enforcement personnel.
Make referrals to community resources.
Develop policies and procedures.
Understand protective orders.