Legal Liabilities and helpful statutes

TOP LEGAL LIABILITIES

Re: DOMESTIC VIOLENCE AND THE WORKPLACE

Workers Compensation: 

For most employees, workers’ compensation is the exclusive remedy for an employee hurt on the job. However, if an employee is a “specific” target of the violence, e.g., a domestic violence abuser seeking out a partner at work, the injury may not be considered “arising out” of the work and the business may be successfully sued for damages instead of limiting damages to workers’ compensation. [Tolbert v. Martin Marietta Corp., 759 P.2d 17 (Colo. 1988)]

Occupation Health and Safety Act (OSHA): 

Requires employers to “furnish to each of his employees…a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” [29 USC §654 (a)(1)]  Pursuant to 29 CFR §1904.5, effective January 2002, employers are required to list assaults by family members in their record keeping for OSHA.

Premise Liability: 

Colorado landowner or occupant may be held liable for injuries to customers and employees, where the landlord knew or should have known of a danger on the premises and failed to exercise reasonable care to protect those persons from danger. [Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987)]

Negligent Hiring/Retention/Supervision: 

A business may be held liable hiring, retaining, or failing to supervise an employee when the employer knew or should have known that the employee was a threat to others while acting in the scope of employment. [Connes v. Mollala Transport System, Inc., 831 P.2d 275 (Colo. 1992), Destefano v. Grabian, 763 P.2d 275 (Colo. 1988), Moses v. Diocese of Colorado, 863 P.2d 310, 329 (Colo. 1993)]

Privacy: 

Policies and procedures need to be implemented to prevent “random” disclosure of private information in cases involving domestic violence in the workplace. Potential claims relating to the workplace include: (1) defamation; (2) false light publicity; and (3) intrusion upon seclusion.

Sexual Harassment: 

Under certain circumstances, acts of violence against men and women may violate state and/or federal anti-discrimination laws. [42 USC §2000e-3a]

Americans With Disabilities Act [42 U.S. C. §§12101 et, seq,]: 

Victims with injuries from domestic violence may fall within the parameters of the ADA. Another way employers may become liable under the ADA is to try to screen for people who are “prone” to violent behavior. There is no scientific proof that predicting violence is possible. [Dendnberg and Braverman, The Violence Prone Workplace, New York, NY: ILR Press, 1999, at p. 147] The ADA applies to businesses with 15 or more employees.

Family Medical Leave Act: 

Requires up to 12 weeks of unpaid leave for an employee to deal with his/her own medical matters or those of a spouse or parent or a child’s serious medical condition. This applies to employers with 50 or more employees. [29 USC §2612(a)(1)]

HELPFUL STATUTES

Restraining orders for businesses: 

A civil restraining order can be issued to protect employees and patrons if there is an imminent danger of violence. However, the business cannot be held liable for failing to obtain a restraining order. [§13-14-102 (4)(b)]

Unemployment benefits: 

Victims who have to quit their jobs because of domestic violence can receive unemployment benefits if the victim provides evidence of the violence or seeks counseling or other services. These benefits are paid out of the state’s reserve and not out of the employer’s unemployment account. [§8-73-108 (4)(r), C.R.S. (revised 8/10/05 HB05-1105)]

Leave for domestic violence victims: 

Employers with 50 or more employees are required to permit an employee to take up to three working days of leave in any 12-month period, with or without pay, if the employee is a victim of domestic violence, sexual assault, or stalking. The employee can use the time to seek a civil restraining order, secure their home, seek legal assistance, or obtain medical or mental health care for themselves or their children. [§24-34-402.7, CRS]

Right to testify in criminal case: 

An employer cannot fire or discriminate against someone who has been subpoenaed to testify in a criminal proceeding, whether the criminal proceeding is domestic violence related or not. [§24-4.1-303 (8), CRS]

Insurance Benefits:

Insurance companies are prohibited from denying or canceling insurance (including health insurance) merely because the insured or potential insured is or was a victim of domestic violence [§10-3-1104.8, CRS].

This information is intended to provide general information regarding the law relating to employment and domestic violence. Laws and legal procedures change frequently and are subject to differing interpretations. Do not rely on the information in this fact sheet. Consult an attorney or appropriate agency about these and any other laws in a particular situation.