Unless you have been living under a rock the last few months, you have undoubtedly heard about the incident that took place between Ray Rice and his fiancée in an Atlantic City elevator, as well as Rice’s subsequent suspension by the NFL. Now, it is worth noting that the NFL is not your average employer. There are a number a factors present that most employers need not consider, including high profile employees, endless amounts of publicity and collective bargaining agreements. Despite the differences, the incident has likely caused most employers to pause and reflect on how they would handle a similar situation.
Unfortunately, there are no easy answers. In fact, for employers asking themselves whether they can take an adverse action against an employee accused of off-duty domestic violence, the answer is a rather infuriating “it depends.” On one hand, at will employees may be fired for any reason, as long as it is a lawful one. At the same time, employers must be careful when taking adverse action against an employee based on an arrest or conviction under state and federal law. Employers who have a policy or practice of not hiring or firing employees based on convictions should ensure the conviction is job-related and consistent with business necessity. For Ray Rice, one of the main issues was that he had a contract that prohibited such conduct. Indeed, there are a number of factors even at will employers should consider prior to taking any adverse actions against employees involved in a domestic violence dispute.
So the question remains, what is an employer to do if presented with a similar situation in which an employee has been accused of domestic violence? The first thing an employer should do is begin a prompt investigation. Before determining appropriate disciplinary action, employers should conduct an impartial and adequate investigation to attempt to discover all facts related to the incident. Employers may want to consider hiring an experienced workplace investigator to ensure the investigator is unbiased and objective, though a trained human resources representative may be sufficient.
The purpose of the investigation should be to determine if the incident might negatively impact the employer’s business or the employment relationship. Investigations should consist of interviews with the employee and/or other witnesses about the incident. These interviews should be clearly documented with reports of the interview, including a date and time, names of all present for the interview and a summary of the information discussed. The investigator should also collect evidence and document the process it took to obtain it. The interviews conducted and evidence collected should then be assembled into a report to allow the employer to make a determination of what disciplinary action should be taken (if any). Among the questions to consider during the process:
- Does the company have a formal workplace policy that addresses domestic violence, which includes both incidents that occur at work and off-duty incidents? Or, does the company have a broader code of conduct policy that permits termination for off-duty conduct? Employers should have policies in place that lay out the consequences for off-duty conduct that affects the employer’s legitimate interests. The employer’s policy should address the fact that off-duty conduct can contribute to a violation of one of the employer’s policies, and result in discipline (including and up to termination).
- Has the person been convicted? There is a rather large difference between being charged/accused of a crime and being convicted. Taking an adverse action at the charged/accused stage may open the employer up to a wrongful termination suit.
- Is there a risk to the workplace? For instance, is the victim also an employee of the company who needs protection? Employers can open themselves up to a wrongful termination claim for taking adverse action without tying the incident to a specific workplace threat.
- Is the person in a leadership position? If the accused employee is a high profile figure or leader in the company, it will be easier to establish a detriment to the company’s legitimate business interests would occur by keeping the employee on the payroll.
- How has the company reacted to similar situations in the past? Any disciplinary action taken should be consistent with the company’s prior handling of off-duty conduct incident.
As you can see, there are no easy answers for employers. If you find yourself in a similar situation, consider consulting legal counsel before taking any adverse employment actions to ensure the company’s interests are protected.
Finally, it is at least worth a reminder that California employers should be careful to not punish the victim of domestic violence incidents. In fact, California has a number of laws in place protecting victims of domestic violence. For instance, under Labor Code section 230, employees who are victims of domestic violence, sexual assault, or stalking may take unpaid leave to: (1) obtain TRO or other court assistance; (2) to seek medical/social/psychological/safety assistance for self or child; or (3) attend court hearings. Employees must be permitted to use vacation/PTO time and confidentiality must be maintained regarding the employee’s request for leave. In addition, under Labor Code section 230.1 (which affects those employers with more than 25 employees), unpaid leave must be granted to victims of domestic violence to: (1) seek medical treatment for injuries related to the domestic violence; (2) consult a rape crisis center or domestic violence program; or (3) participate in safety planning.