Employment Law? Right of the Abused Person on the Job

Domestic Violence: We Can Live Without It: Rights and Options Available Under the Law

Employment Law
Right of the Abused Person on the Job

Domestic violence has many far-reaching effects.  If the victim is employed, domestic violence can often result in the victim being late or absent from work.  When a victim is late or absent from work because of domestic violence, the employer’s policies and procedures pertaining to sick leave, personal leave, absences and tardiness, which are often contained in the employee handbook, employment agreement, or collective bargaining agreement, will generally control.  The physical and mental effects of domestic violence can also impair job performance.  In these situations, it is important that the victim communicate with her or his supervisors and/or the human resources department regarding the situation.  In some instances, the employer may be required to provide assistance and necessary accommodations. 
 

Employment at Will

            Tennessee is an “employment-at-will” state.  Under this general rule, the employer or the employee has the right to terminate the relationship at any time for good cause, bad cause, or no cause.^[103]  Although the vast majority of employment relationships in Tennessee are “at will,” there are exceptions to this rule.^[104]  Sometimes the employment-at-will rule can be overcome by employer guarantees or promises established or formalized by an employment contract for a definite term.^[105]  

Employee Manuals, Employment Contracts, & Collective Bargaining Agreements

In some instances, employers will have neither a written employee manual nor established policies regarding absences.  These situations are the purest forms of the “employment-at-will” relationships.  Because there is no set policy regarding how an employer will handle a certain situation, such as excessive tardiness or absences, an employer will most likely deal with each employee on a case-by-case basis.  Without a standardized policy, an employee may not be able to anticipate how an employer will react in certain situations. 

Because Tennessee continues to adhere to the employment-at-will rule, there is a presumption that an employee is an at-will employee.^[106]  Therefore, in circumstances when the employer provides an employee manual, there is the presumption that the provisions in the manual do not bind the employer.  In fact, the provisions of the employee manual will be binding on an employer only if the manual contains language explicitly guaranteeing the provisions as a condition of employment.  Through a disclaimer, an employer may reserve the unilateral right to modify such provisions within an employee handbook and thus preclude such provisions from creating a binding contract for employment.^[107]  The disclaimer may also state that nothing contained in the manual is intended to alter an employee’s “at-will” status.^[108]  If such disclaimer language is present in the employee manual, the provisions contained in the manual may or may not control the terms of employment. 

If the employee is a member of a union, his or her employer will have a collective bargaining or union agreement with specific provisions.  In either a union agreement or employment contract, the policies contained in the agreement regarding sick leave, personal leave, absences, and tardiness will govern the rights and duties of the employer and the employee.  Most employee handbooks, employment contracts, or collective bargaining agreements, will provide some guidance on reporting concerns and/or a grievance procedure.  If employees feel that they have been treated unfairly or not in accordance with established polices, they should utilize these procedures to seek relief.^[109]  In union situations, employees may also pursue remedies under grievance arbitration proceedings.^[110]

In all instances, but especially when no written employment policy exists, an employee should be encouraged to discuss the situation with the employer and request a mutually agreeable solution.  The employee may not want to disclose personal details of domestic abuse to the employer, but it may be in the employee’s best interest to do so in order to avoid potential discipline, complications, and misunderstandings in the future.

When all available leave time has been used

            Despite legislative proposals,^[111] there is no federal mandate for unconditional paid or unpaid sick leave.^[112]  Therefore, once the employee has no paid leave time available, the employer has the discretion to allow additional unpaid leave or to follow the procedures outlined in the employee manual or union agreement regarding discipline and termination.  If the employer does not have an employee manual, which either outlines such procedures or explains its leave policy, the employer is generally free to handle the situation as it sees fit.  However, all actions of the employer must meet the requirements of applicable federal and state law regarding discrimination in employment practices.^[113] 

            Applicable federal and state laws include, but are not limited to:

• The Tennessee Human Rights Act (“THRA”) is a comprehensive anti-discrimination law, with the goal of furthering the policies embodied in similar federal laws against employment discrimination.^[114]

• Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on race, color, sex, religion, or national origin.  This includes disparate treatment based on stereotypes of a particular race, color, sex, religion, or national origin.^[115]
• The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of a qualifying disability.  In addition, the ADA may require an employer to provide reasonable accommodations to a qualified employee with a disability, which may include physical or mental impairments arising from domestic violence.  The ADA also prohibits certain medical inquiries and the disclosure of confidential medical information by the employer.^[116] 

The Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of race, color, religion, sex, national origin, age, disability, or genetic information.  The Tennessee Human Rights Commission is the state equivalent to the EEOC and is responsible for enforcing Tennessee state laws pertaining to employment discrimination.  Under both state and federal law, it is illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Other state laws and exceptions to the employment-at-will doctrine may provide some additional protections to employees who are victims of domestic violence.  For example, the Tennessee Public Protection Act (“TPPA”) prohibits employers from terminating employees solely for refusing to participate in or remain silent about illegal activities.^[117]  Similarly, employers may not terminate an employee if the discharge contravenes important public policies or if the discharge is solely in response to the employee engaging in activity protected by state or federal law.  Likewise, Tennessee law bars government employers from taking adverse actions against public employees due to their assistance with the prosecution and conviction of domestic violence offenders.^[118]

In 1984, the Tennessee Supreme Court first recognized a cause of action for retaliatory discharge in Clanton v. Cain- Sloan Co., 677 S.W.2d 441 (Tenn.1984).  Since then, the Court has further recognized that an at-will employee “generally may not be discharged for attempting to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy which is evidenced by an unambiguous constitutional, statutory, or regulatory provision.”  See Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716-17 (Tenn.1997).  However, under Tennessee law, the employee must prove that discharge was solely motivated by the fact that the employee engaged in a protecting activity. 

Moreover, many of these laws do not specifically prohibit employment discrimination against victims of domestic violence.  Consequently, employment discrimination on the basis of domestic abuse often goes unnoticed.^[119]

Family Medical Leave Act

            If an employee will be absent from work for several days due to injuries resulting from domestic violence or treatment for those injuries, she or he may be eligible for unpaid leave under the Family Medical Leave Act (“FMLA”).^[120]  This federal law entitles eligible employees of covered employers to take unpaid, job-protected leave for specific family and medical reasons.           

            A covered employer is one who has at least 50 employees within a 75-mile radius.  There are two exceptions:  (1) public agencies are covered employers without regard to the number of employees, and (2) public as well as private elementary and secondary schools are also covered employers without regard to the number of employees.^[121]           

            Furthermore, for FMLA to apply, the employee must meet eligibility requirements.  To qualify, the employee must have been employed

• for at least 12 months – however, the 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligation, or (2) governed by a collective bargaining agreement or other written agreement.
• at least 1,250 hours with her employer during the previous 12 months, and
• at a worksite where the employer employs at least 50 people within 75 miles.^[122]

            The FMLA requires covered employers to provide their qualified employees with up to 12 weeks of unpaid leave in any 12-month period for several reasons.^[123]  These reasons include an absence from work due to a serious health condition of the employee or a family member of the employee.

            The definition of a “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital or continuing treatment by a health care provider.  Inpatient hospital care is considered an overnight hospital stay followed by a period of incapacity that prevents the employee’s ability to work, attend school, or perform other regular daily activities.  Continuing treatment by a health care provider includes both incapacities for a period of more than three consecutive calendar days and any subsequent treatment under the supervision of the healthcare provider.

            The FMLA does not specifically categorize domestic violence as a serious health condition. However, a victim may still be eligible under the FMLA if the injuries received from domestic violence and abuse satisfy any of the defined categories, such as severe physical injury or mental health trauma.

             The requirements for FMLA leave can be very complex and detailed.  If an employee has a qualified family or medical reason, the employee is usually required to provide notice to the employer for FMLA leave.  The amount of notice is based on whether the leave is foreseeable and could require notice of up to 30 days.  Depending on her or his circumstances, a domestic violence victim may be eligible for leave under the FMLA.  The victim should be encouraged to contact her or his workplace’s human resource department as soon as possible.

Absence from work to appear in court

            Because a victim may be subpoenaed to appear in court as a witness in a domestic violence case, she or he may be required to miss work.  Tennessee law does not require an employer to give an employee paid leave for a court appearance.  However, most employers will allow an employee to take a sick day or personal day for a court appearance.            

            A victim may also be required to appear in court in order to obtain a restraining order against the abuser.  When the restraining order is granted, the victim must inform her or his employer as soon as possible so that the employer can help with enforcement of the order.  The employer may inform the relevant departments, such as human resources and security.  The employer also may implement appropriate safety measures.  In any situation involving domestic violence, communication between the victim and the employer is essential to ensure the employee’s safety in the workplace.

            In summary, because Tennessee is an employment-at-will state, a Tennessee employer can terminate employment for any legitimate non-discriminatory reason absent a written contract that provides otherwise.  Therefore, the victim should communicate with her or his employer as soon as possible once it appears that domestic violence may adversely affect the victim’s job performance.

 

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Domestic Violence Handbook 

With nearly 25 percent of women experiencing some form of abuse during their lifetimes, domestic violence is epidemic. Economic pressure increases stress on families and stress increases domestic violence. And, domestic violence affects all of us — at work, in health care and in the courts.  This Handbook is provided as a resource for attorneys, social service providers, but most importantly for victims and their family members.  

Download your copy now!

If you have questions about issues discussed in this handbook, you should contact an attorney. The Knoxville Bar Association Lawyer Referral & Information Service (865‐522‐7501) can refer you to an attorney who handles the kind of legal problem you are experiencing. Other options are listed in the Local Legal Resource Guide at the back of the handbook. Domestic Violence: We Can Live Without It Rights & Options Available Under the Law.

For more online legal resources, please click here.