Businesses concerned about domestic violence ‘job killer’ bill

June 19, 2013

By Dave Roberts

SB 400, by Sen. Hannah-Beth Jackson, D-Santa Barbara, is designed to help the victims of domestic violence. But it’s really a “jobs killer,” according to the California Chamber of Commerce, because it “increases the burden on California employers to conduct business and exposes them to a higher risk of litigation.” The bill was approved by the Assembly Labor and Employment Committee last week and it’s now being considered by the full Assembly.

Jackson sees it as a victim saver rather than a jobs killer. She told the committee on June 12:

“SB 400 would prohibit discrimination or retaliation against an employee because of that employee’s known status as a victim of domestic violence, sexual assault or stalking. It would also require simple reasonable accommodations for the workplace safety of a victim of these three potential acts of violence against them. Such as changing the employee’s telephone extension or moving them to a different work station in the office or implementing a workplace safety plan in response to domestic violence, sexual assault or stalking. A study by the Legal Aid Society-Employment Law Center, one of our co-sponsors of this measure, held that nearly 40 percent of survivors of these crimes in California reported that they had either been fired or feared termination due to this violence that had been posed against them.”

There is no link to the study, or even a mention of it, on the LAS-ELC website.

Example

Julia Parish, an attorney for LAS-ELC, described to the committee one example of a fired domestic violence victim:

“One of our clients was fired from a job that she had had for 14 years — she was a model employee — after she disclosed that she was a victim of domestic violence. She was afraid for her safety, and she bravely decided to tell her employer this information. She worked with them in order to obtain a workplace restraining order that protected everyone in the workplace as well as herself. And testified in court to assist her employer with this process. But instead of allowing her ever to return to work, they terminated her. She explained, ‘I cooperated with the police investigation, talked to victims’ advocates and testified in court to obtain a workplace restraining order to protect the clients, staff and myself from harm. At the same time I wanted to return to work, doing something that I loved.’ She went on to express how it felt when she was terminated by her employer simply for having disclosed that she was a victim of domestic violence. ’I was treated like a criminal. Never allowed to return to my office or have contact with my dear friends and colleagues, and never allowed to say goodbye to the clients that I worked with. My whole world turned upside down. I felt betrayed by my employer when I needed support at the most vulnerable time of my life. I’m asking the representatives and lawmakers to help women victims in domestic violence situations to feel safe, supported and not made a victim all over again at work. I don’t want another woman to have to go through what I went through….’

“Survivors of domestic violence, sexual assault or stalking deserve fair and equal treatment in the workplace. This is a challenging situation for so many of them. Refusing to provide a reasonable safety accommodation upon an employees’ request, often forces a victim to choose between their own safety and, frankly, sometimes the safety of the workplace at large and financial security: losing that job or quitting that job because there’s no assurance that efforts have been made to try to secure their safety.”

‘Victims’ could be lying

While no one takes lightly the reality of domestic violence, there is also the possibility that an employee claiming to be a victim of domestic violence could be making it up. If requested, the employee would only have to provide a note from a “domestic violence advocate” or “counselor” attesting to his or her victimhood status. But the employee would not have to provide an arrest report, a restraining order, doctor’s note, judicial ruling or any court documents affirming that the employee was actually being abused or stalked.

That concerns Assemblyman Luis Alejo, D-Watsonville, who has worked as an attorney representing litigants seeking workplace violence restraining orders:

“These are very tough, emotional issues. How do you create a bright line for employers? So they are not having to make judgments, figuring out how long is an accommodation going to last. They are very difficult issues. In these cases, many of them occur in the middle of very troubling relationships full of conflict, and there’s allegations on both sides. Just because somebody makes an allegation doesn’t necessarily mean that there is domestic violence going on. That’s why a judge hears both sides, looks at the evidence and makes a determination whether there’s actually domestic violence and whether it merits a restraining order. When these cases do happen, what’s the bright line for employers? These accommodations could take place when an employee comes with a restraining order and provides a copy to the employer. A determination has already been made by a judge that there is actually domestic violence or a threat, or stalking, whatever it may be. But then it tells the employer exactly when is the restraining order in place, who is it against. It’s a very clear rule. For an employer not to have to make any determinations, knowing that there is an order in place and that this order is going to go on for a year, or three years or five years, it gives them a very reasonable time frame. And it gives employers notice that a judge made a determination that there was in fact domestic violence going on.”

Jackson dismissed his concerns:

“As a recovering lawyer myself, I can understand that if we were asking for some really significant acts by the employer. Here we are just asking for an accommodation at a workplace. Not who’s right, who’s wrong. They don’t even have to actually necessarily know who is the person that is doing the stalking or whatever. It’s just simply you have someone who says, ‘Look, I’ve been the victim of a sexual assault.’ Sometimes the victim doesn’t necessarily want to share a whole lot more information. But just simply says to the employer, ‘I’ve been through this situation, and I would really appreciate a reasonable accommodation like moving to a back office or having a phone extension line changed.’ Just something like, ‘Could you walk me out at night, I’m a little afraid to go out in the dark.’ We don’t want to create a burden on the employer. If there were going to be a burden on the employer, then I could understand having people come in with a restraining order and so forth. My sense is that, in some of these situations, there may not necessarily have been an order obtained. We just want people to be comfortable and not afraid when they’re in the workplace. So that they can also work as well as make a living, rather than being re-victimized by becoming unemployed again.”

That did not satisfy Alejo, who replied:

“But then your bill would have an employer make an accommodation just based on an allegation. Anybody could say there were threats without there being any evidence. And it would automatically initiate the accommodation to take place without any determination made by anybody. You’re asking that, solely on the allegation, that there’s domestic violence or a threat or stalking without any other evidence whatsoever, you have to try accommodation. What I’m saying is, as a legal standard, it’s much clearer when there’s actually a judge who reviewed the facts and takes that away from the employer having to make that determination. Because the judge would have seen that there’s enough facts behind this case that they do issue a restraining order. And all the employee has to do is come back, give a copy to the employer and say, ‘I need accommodation because a judge, after reviewing the facts of my case, made a determination that there’s enough there that merits a restraining order.’ And that’s the kind of bright line that I think I could be comfortable with supporting this bill.”

False claims of domestic violence

Alejo’s concerns may be well founded. Fraudulent accusations of domestic violence are common, according to some family law attorneys. Of course, hard data is difficult if not impossible to come by, given the punitive consequences for faux-victims admitting perjury.

“We see false claims of domestic violence in family courts every day,” writes attorney Robert Franklin on his website. “Courts have been telling us that claims of domestic violence are routinely made to gain an advantage in custody cases. That’s another way of saying that many of those claims are made up. But, of course, those claims will continue to be made for the good and sufficient reason that they work. They achieve the desired result — separate the other parent (almost invariably the father) from the child. Once that’s accomplished with a temporary order, it becomes much easier to make sole maternal custody permanent.”

Pasadena attorney Mark Baer asserts on his blog that false allegations of domestic violence are epidemic:

“An allegation of domestic violence is made in approximately 25 percent of divorces. Moreover, such allegations are more common in relationships involving children. It is estimated that as high as 80 percent of allegations of domestic violence and child abuse are completely false. What would cause someone to make a false allegation of domestic violence? It is widely recognized that false claims of domestic violence are often made in divorce and paternity actions in order to gain a legal advantage. It can be of no surprise that child custody tends to be awarded to the accusing parent. Why would someone make such false allegations against the person they once loved, considering that the claim stigmatizes and humiliates the person and may require the expenditure of substantial sums to defend against? When a relationship ends, the emotions involved are anger, hurt, frustration, rage and bitterness. In fact, when a couple with children together are breaking up, they almost cannot help themselves from somehow using the children as weapons or pawns.”

SB 400 drags employers into these messy, ugly divorce and custody battles in which allegations of domestic abuse, sexual assault or stalking are made, even when those allegations may be false.

Coworkers could be endangered

And, while SB 400 provides protections for true domestic violence victims, it does nothing for the coworkers of those victims. It could actually place them in danger if their coworker’s attacker attempts to assault or shoot the victim in the workplace. Moving a victim’s desk to the back of the office, which Jackson said would be a reasonable safety accommodation, could actually place coworkers in greater danger as it would force the attacker, who could be wielding a knife or gun, to move through more of the office in pursuit of the victim. It in effect turns the entire staff into potential victims of violence.

SB 400 would allow professed domestic violence victims to sue if they don’t feel their employer has reasonably accommodated them. That, of course, would increase the potential for more litigation in this litigious state’s underfunded, overburdened judicial system.

Those concerns were cited by then Gov. Arnold Schwarzenegger in his veto message for a similar bill, SB 1745, in 2006:

“California employers are currently required to take reasonable steps to provide a safe and secure workplace for all employees, including a duty to adequately address the potential for workplace violence.  Because the precise employee rights and employer obligations under this bill are not defined, the combination of existing law and this bill would place employers in an untenable position. For instance, if an employer determines that removing an employee from the workplace is necessary to provide a safe workplace and keep other employees safe, the employer may very well be sued for violation of the public policy established by this bill. On the other hand, if the employer determines an employee must be allowed to continue performing duties in the workplace in order to comply with this bill, the employer may face litigation arising from injuries sustained by other employees if workplace violence occurs…. However well-intentioned or worthy of consideration, this bill would create conditions that can only be resolved through the courts at great expense to employers and employees alike.”

On June 12, the committee voted 4-1 (Alejo and one other committee member abstained) to send SB 400 to the Assembly Judiciary Committee. It earlier had been approved by the state Senate, 21-12.