In Absence Management, FMLA

In my frequent scouring of my various legal subscriptions, I came across an article by Lisa Berg from the very long-winded firm of Stears Weaver Miller Weissler Alhadeff & Sitterson PA. This article made me realize my last and only writing regarding crime victims was simply to notify that Massachusetts had enacted their Victims of Domestic violence leave law on 8/1/2014.

In Lisa’s article, she mentions her child’s Rosh Hashanah assignment was to bring in a mitzvah note, or a “good deed” note. Lisa’s honorable good deed was to attend a local Miami-Dade County shelter for battered women to supply them with a few necessities, as well as toys for their children. While visiting this shelter, Ms. Berg met an “incredible” and severely beaten young woman. This woman had apparently not only suffered severe physical and emotional abuse by her boyfriend that landed her in the emergency room, but she subsequently and shamefully also became a victim of her employer as well.

While recovering from her injuries, her abusive boyfriend apparently contacted the woman’s employer incessantly in an attempt to have her terminated. After her sick time had been exhausted, her employer did indeed terminate her employment, citing that he “didn’t want someone with so many personal problems at his company.” As a result, this young woman was unable to pay her rent and ultimately became homeless.

This woman’s story touched me, angered me and inspired me. Her problem is our problem, and we need to consider it as such. I scoured the Internet hoping I would find a lawsuit that had this storyline attached to it. Without knowing the woman’s name, it proved to be a futile challenge. What I did find however was countless other stories of women being terminated from employment for needing a day off. Time off may have been to obtain a restraining order, to attend court proceedings, or for simply advising an employer that they needed help.

At present, there is no federal law that addresses, or offers job protections for victims of domestic violence. Considering that statistics say one in four women will at one time be a victim of domestic violence, and the leading cause of workplace death for women is homicide, perhaps we should take a closer look at what is and what should be in place.

The Federal Family Leave Act does offer 12 weeks of job-protected leave to employees or their family members who have a serious health condition as defined by the Department of Labor regulations. Based on the limited information provided for this woman’s situation it seems she might have qualified due to the seriousness of the beating. However, even if she lay in a hospital bed unconscious in her recovery, she would need to meet the FMLA qualifications. To qualify for FMLA her employer had to have 50 or more employees, she had to have been employed for at least 12 months or had worked for more than 1250 hours. Not knowing anything about her employer other than the fact they appeared to be seriously lacking a moral code, I can’t say whether or not these eligibility requirements were met. What I can say definitively is that there are a large number of victims who do not meet those requirements. Even if they did, they would have to wait until they were beaten or injured enough to be under the care of a physician in order to qualify for job protection.

There are currently 16 states that have enacted job protections for victims of domestic or sexual violence. These job protections include leave from work to attend counseling, to find safe housing, to obtain police assistance, etc. These states are California, Colorado, Connecticut, District of Columbia, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, New Jersey, New Mexico, New York, North Carolina, Oregon, and Washington. The eligibility rules and entitlements vary drastically amongst them. Some apply to all employees, some have hours and length of service requirements, some provide simply a few days to fill out police reports and others provide as much time as necessary for one’s safety. There are many other states that have enacted Crime Victim leaves, but those typically allow the victim to only to attend court proceedings or respond to subpoenas. They are not specific to domestic or sexual violence, but instead to any crime related activity.

Unfortunately for this woman, the Florida victims of domestic violence law only offers three days of job-protected leave. Even if she had qualified, this would not have been sufficient for her to recover before reporting for duty. Miami-Dade County, however, offers 30 days of job-protected leave as well as protections against discrimination based on “actual or perceived status as a victim of domestic violence, dating violence or stalking.” I wonder if her employer had been aware of this? I hope some day in my scourings I’ll see “Abused nameless woman vs. conscious-less employer,” and I’ll know it’s her.

This woman is not alone; she is just one of hundreds of thousands of homeless women. Homes through community partnership state that 85% of homeless mothers cite domestic violence as the principal cause of their homelessness. This number is staggering, and it certainly makes one wonder what can be done to ensure that this number falls drastically and consistently. There are a number things we can all offer to assist in reaching this most necessary goal. For myself, of course, I immediately turn to what I know, education, federal and state legislation, and job accommodations.

Studies show that nearly 75% of abused women were harassed by their partner while at work, while 75% of women report staying with their abuser longer because of economic reasons. Kim Gandy, president and CEO of the National Network to End Domestic Violence states, “We know that economic abuse is frequent in these situations, and abusers often try to get the victim fired in order to increase her financial dependency on him.” I’m quite sure this was the reason for the incessant calls to the nameless woman’s employer in this article. Her abuser did indeed succeed in getting her fired, but she chose homelessness over the security of his fists.

So what should we do? Start with what you know and what you can accomplish. What I know is that we need to push for federal legislation to either include victims of sexual or domestic violence in the Family Leave Act or to establish a separate job-protected leave program. We can encourage our state representatives to enhance our existing policies, or create them if you live in a state without any. I think at the very least, a proper enhancement would be to do away with eligibility rules, as I’m quite sure that the abuser isn’t going to wait until a person has worked 1250 hours. Most of the people who read anything I have to say handle their own employee benefits, or for the benefits of their customers. Review your employment policies and your handbooks, do you have any corporate leave and safety policies for your employees who are victims? If not, that sounds like the best place to start.

The estimated annual cost of domestic violence is more than 37 billion dollars a year for mental health treatment, police work and lost productivity at work. Even if you’re lucky enough not to be immediately affected by domestic violence or homelessness, your tax dollars are still severely impacted. Domestic violence truly is everyone’s problem.

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