Tuesday, June 23, 2015

My Employee Has Been Accused of Domestic Violence. What Should I Do?

Fans of the NFL know that domestic violence has become a serious issue in the league. Last year, star running backs Adrian Peterson and Ray Rice were suspended for almost the entire season after revelations that they engaged in domestic violence. This offseason, the Bears cut defensive end Ray McDonald after he was involved in a series of domestic violence incidents.

So, if an employer finds himself with an employee who has engaged in domestic violence, what should he do?
As we have often cautioned, an employer cannot discharge an employee merely because he or she was arrested for domestic violence or any other criminal charge. Just because an employee has been accused of domestic violence does not mean that he actually committed it. Many divorce attorneys say that allegations of domestic violence are used as leverage in divorce proceedings. On the other hand, domestic violence is a serious issue in society that can only be addressed through a zero tolerance attitude by everyone, including employers. So, what options are available to the employee in these cases? Here are a few ways that employers can respond:
  1. Normally, an individual arrested for domestic violence is eligible to post a bond in lieu of being held in jail on the charge. This is not always the case, though, and some employees charged with this or any other crime become AWOL because of temporary incarceration. An employee who doesn’t report to work may be eligible for discharge, even if the reason is beyond their control such as incarceration. Always ensure that any discharge for failure to report is consistent with policies and past practice.
  2. If the employer learns of the alleged behavior through first hand or other reliable reports AND if the circumstances are such that the employee either presents a threat or unreasonable disruption to co-workers or the public or impairs the reputation of the employer, then discharge may be appropriate. The point is that an employer should never discharge an employee based on an unreliable or biased report of behavior. If necessary, the employer can place an employee on administrative leave while it investigates the allegations.
  3. The employer can wait to take action until the allegations have been adjudicated by a court. This option assumes that the continued presence of the employee in the workplace is not unduly disruptive or harmful.

Employers should consider establishing a workplace violence policy that not only protects victims or potential victims of this crime, but creates a “zero tolerance” for such behavior on or off duty that an employee will be fired if he or she: 1) is convicted of a violent crime (including threats and intimidation) while employed; and 2) his or her behavior endangers other employees, clients, or the public, regardless of whether he has been convicted or has the effect of impairing the reputation of the employer in the community. Contact an experienced attorney for advice in creating this policy.