Employment & Labor Insider

As NFL Commissioner Roger Goodell can tell you, it isn't easy for an employer to handle off-duty domestic violence situations.

Sometimes your employee is the victim. If so, you may have someone who is distracted, scared, upset, or frequently absent because of physical injury or psychological trauma, or court appearances. She (or he - men can be victims, too) might be spending too much time commiserating with coworkers and not working. And you always have to worry about the possibility that the abuser will show up, causing this "private matter" to spill over into your workplace. Because of these risks, it isn't unheard of for an employer to terminate the victim because her abuser's presence is creating too much disruption in the workplace, or putting customers or students at risk.

Sometimes your employee is the perpetrator. But maybe he (or she) behaves like a choirboy at work, and is great at his (or her) job. If you fire for off-duty conduct that has no noticeable impact on your workplace, could the employee assert a claim against you for discrimination or some other type of wrongful termination?

In this legal environment? Do I really have to ask?

In short, there are no easy answers for employers in these situations. But here are a few ideas.

IF YOUR EMPLOYEE IS THE VICTIM . . .

*Adopt a policy on domestic violence (if you don't already have one), and encourage victims to get help. If your company is big enough and you have the means, you might even want to offer optional evening classes or support groups for victims and their children. The Human Resources department is a great place to house information about community resources for domestic violence victims, such as shelters, individual or family counseling, and social and legal services. You can also post the information on your company intranet, and on bulletin boards. If you have an employee assistance program, you can offer that, as well.

*Get familiar with your state laws on workplace rights of domestic violence victims. In my home state of North Carolina, it's illegal to take action against an employee who misses work because she (or he) is seeking a domestic violence restraining order. Many states have similar laws, and many - like California - offer much more extensive workplace protection to victims.

*In addition to the time off that you are legally required to provide, be as liberal as you can in voluntarily allowing victims of domestic violence to take time off for court appearances, medical treatment, counseling, help for kids who may have been hurt or traumatized, moving out of the house, and all of the other things that domestic violence victims have to worry about. (Some of this time off may be covered by the Family and Medical Leave Act.)

*Be supportive and encouraging, but understand that the decision to leave an abusive relationship is that of the victim. Yes, you may disagree -- and, in fact, you probably will -- but the decision is not yours to make. You may need to periodically remind the victim's co-workers about this, too.

*Again, men as well as women can be victims of domestic violence. And women as well as men can be perpetrators. This CDC publication has excellent statistical information about domestic violence, including breakdowns by type of violence, and by sex, race, and ethnic background.

It's not too late to sign up for the webinar that everyone's talking about: "Your Handbook Is Probably Illegal! How to Deal With an Activist Labor Board." The webinar will be from 1 to 2:30 p.m. Eastern Time on Wednesday, September 24. Don't be left out!

*Make sure that your facility has effective security measures that will keep abusers - as well as other violent individuals - out of your workplace.

*Cooperate as needed with law enforcement and with the judicial process.

IF YOUR EMPLOYEE IS THE PERPETRATOR . . .

*Don't automatically assume you can just fire someone for being involved in a domestic dispute while off duty. First, the alleged perpetrator may not be guilty. Divorce attorneys say that domestic abuse allegations are sometimes used as leverage to get a more favorable result in a divorce, alimony, or child custody proceeding. Second, even assuming guilt, as an employer you can get sued if you fire an employee on questionable grounds because you believe the employee is an abuser -- unless you can show that the abuse has a clear connection to your work environment.  If both the perpetrator and the victim work for you, it should be easier to establish that connection and act accordingly.

*Communicate and enforce your existing policies against threatening, abusive, or violent behavior. (I hope this goes without saying.) If the perpetrator violates these policies, you should be able to act.

*If your workplace violence policy doesn't already cover it, amend the policy to provide for termination in these circumstances: (1) criminal conviction of or plea to any violent crime (defined to include actual violence, as well as threats and stalking) while employed; and (2) with or without a conviction or plea, any violent, threatening, or abusive behavior that, in the sole opinion of the employer, endangers employees, the public, or the people whom the employer serves. In other words, make it as tough as you can in light of the restrictions the EEOC and the NLRB have imposed on employers.

*Offer your EAP. If you have an employee assistance program, you can offer it to the abuser. Many EAPs have anger management therapy.

*Don't forget about how the feds got Al Capone. They couldn't prove that Capone was a murderer, but they were able to prove he wasn't paying his taxes. Good enough - income tax evasion got him an 11-year sentence "in a federal penitentiary," and by the time he got out he wasn't capable of committing crimes any more. Keep this in mind with domestic violence perpetrators. They may give you grounds to fire them for other legitimate reasons -- for example, if they're arrested and jailed, you may be able to fire them for attendance. I have seen this happen a number of times - it works.

*Cooperate with law enforcement and the judicial process.