Right of the Abused Person on the Job
Domestic violence has many far-reaching effects. If the victim is employed, the effects of domestic violence can spill over into the workplace. The most obvious effects of domestic violence on employment are tardiness and absences. When a victim is late or absent from work because of domestic violence, the policies regarding sick leave, personal leave, absences and tardiness contained in the employee manual, employment agreement, or collective bargaining agreement will control. Domestic violence’s physical and mental effects can also impair job performance. In these situations, it is important that the victim communicate with her or his employer and the human resources department
regarding the situation. Such communication may avoid further complications in the future. Additionally, an employer may have some responsibility or liability for the effects of domestic violence occurring at the workplace.
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.108 Although the vast majority of employment relationships in Tennessee are “at will,” there are exceptions to this rule.109 Sometimes the employment-at-will rule can be overcome by employer guarantees or promises established or formalized by a contract for a definite term.110
The characterization of the employer/employee relationship as an at-will relationship has a great impact on the rights of an employee who is also a victim of domestic violence.
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.111 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 being part of a binding employment contract.112 The disclaimer may also state that nothing contained in the manual is intended to alter an employee’s “at-will” status.113 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.
Depending on the type of employment, an employee may belong to a union or have an individual employment contract. 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 individual contract, policies contained in the documents regarding sick leave, personal leave, absences, and tardiness will govern the rights and duties of the employer and the employee. Most employee manuals, employment contracts, or collective bargaining agreements will provide grievance procedures. If employees feel that they have been treated unfairly or not in accordance with established polices, they can use these procedures to seek relief.114 In union situations, employees may also pursue remedies under grievance arbitration proceedings.115
In all instances, but especially when no written employment policy exists, an employee should be encouraged to discuss the situation with the employer and come to a mutual agreement. The employee may not want to disclose personal details of domestic abuse to the employer. However, it may well be in the employee’s best interest to do so in order to avoid complications and misunderstandings in the future.
When all available leave time has been used
Despite legislative proposals,116 there is no federal mandate for unconditional paid sick leave.117 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 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.118
Applicable federal and state laws include:
- 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.119
- 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.120
- The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of 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.121
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. It is also 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 for refusing to participate in or remain silent about illegal activities.122 Similarly, employers may not terminate an employee if the discharge contravenes important public policies or if reason for the discharge is the employee’s having engaged in certain protected activities, such as activities that are protected by 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.123
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). Thus, under Tennessee common law, an employee may sue an employer for retaliatory discharge when the employer’s motivation to terminate the employee violates a clear public policy. But see Tenn. Code Ann § 50-1-304(g) (2014) abrogating certain common law claims that can be brought under the TPPA.
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.124
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”).125 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. 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.126
Furthermore, for FMLA to apply, the employee must meet eligibility requirements. To qualify, the employee must have been employed:
- for at least 12 months,
- 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.127
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.128 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.
Because Tennessee is an employment-at-will state, an employer or an employee in Tennessee can terminate employment for any legal reason absent a written contract that provides otherwise. Therefore, the victim must communicate with her or his employer if domestic violence may adversely affect any aspect of the job. The victim should be encouraged to initiate such a discussion as soon as possible.
108 See Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534-35 (Tenn. 2002).
109 Chad E. Wallace, Tennessee's Employment-at-Will Doctrine and the Need for Change When Telling the Truth Costs You Your Job, Tenn. B.J., April 2003, at 18-19.
110 See Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002).
111 See King v. TFE, Inc., 15 S.W.3d 457, 460 (Tenn. Ct. App. 1999).
112 Id. at 461.
113 See generally id.
114 Tenn. Code. Ann. § 50-3-409 (2014).
115 Tenn. Comp. R. & Regs. 0800-01-08-.08.
116 H.R. 1286, 113th Cong. (2013-2014).
117 24 No. 8 Tenn. Emp. L. Letter 5.
118 Tenn. Code. Ann. § 50-3-409 (2014).
119 Tenn. Code Ann. § 4-21-101 et seq. (2011).
120 42 U.S.C.A. § 2000e-3; Tenn. Code Ann. § 4-21-301 (Supp. 2014).
121 42 U.S.C.A. § 12132.
122 Tenn. Code Ann. § 50-1-304 (Supp. 2013).
123 Tenn. Code Ann. § 4-4-122 (2013).
124 See also U.S. Equal Opportunity Commission, Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees who Experience Domestic or Dating Violence, Sexual Assault, or Stalking, available at www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm.
125 FAMLV-LH 1, 1993 WL 13148777 (A.&P.L.H.); United States Department of Labor Wage and Hour Division (WHD), Family and Medical Leave Act, available at http://www.dol.gov/WHD/fmla/index.htm.
126 See 29 C.F.R. §825.600.
127 See 29 C.F.R. §825.110.
128 An employer is permitted to choose any one of the methods for determining the 12-month period in which the 12 weeks of leave entitlement occur. See 29 C.F.R. §825.200(b).