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Sue K. Willman
Employment Attorney
Spencer Fane Britt & Browne LLP
On behalf of the
Society for Human Resource Management
Testimony before the U.S. Senate Subcommittee on
Employment and Workplace Safety
"Too Much, Too Long?
Domestic Violence in the Workplace"
628 Dirksen Senate Office Building
10:00 am
April 17, 2007
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Introduction
Chairwoman Murray, Ranking Member Isakson, distinguished members of the
committee, my name is Sue Willman, and I am an employment attorney with the law firm
of Spencer Fane Britt & Browne LLP. I commend the Subcommittee for holding this
hearing on domestic violence in the workplace, and appreciate the opportunity to testify.
My comments will focus on my experience with workplace violence and legislation that
Chairwoman Murray has introduced in previous congresses, known as the Security and
Financial Empowerment (SAFE) Act.
By way of introduction, I am a member of my law firm's labor and employment practice
group. I have over 30 years of experience both as an employment lawyer and as a human
resource (HR) professional, and have spent a good part of my career advising employers
on issues relating to leave in the workplace, including the Family and Medical Leave Act
(FMLA).
I am also a certified human resource professional, and appear today on behalf of the
Society for Human Resource Management (SHRM). SHRM is the world's largest
association devoted to human resource management. Representing more than 210,000
individual members, the Society's mission is to serve the needs of HR professionals by
providing the most essential and comprehensive resources available. As an influential
voice, the Society's mission is also to advance the human resource profession to ensure
that HR is recognized as an essential partner in developing and executing organizational
strategy. Founded in 1948, SHRM currently has more than 550 affiliated chapters within
the United States and members in more than 100 countries.
SHRM is well positioned to provide insight on the impact of domestic violence in the
workplace as well as the role of employers in responding to this issue. HR professionals
are responsible for designing and implementing employee benefit programs that meet the
needs of workers and contribute to organizational success. HR professionals strive to
offer the right mix of benefits to attract and retain top performers while balancing the
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increasing costs of offering these benefits. Organizations also depend on their respective
HR departments to craft policies that help to ensure a safe workplace.
I also approach this issue from a unique perspective, from that of a survivor of domestic
violence. I am one of the nearly one-third of American women who report being
physically or sexually abused by a husband or boyfriend at some time in their lives.1 I
divorced my first husband in 1978, after three years of physical abuse. Wanting to help
other women make the journey from victim to survivor, I have served the last 15 years on
the Board of Directors for both Safehome, Inc., a shelter for battered women in Kansas
City, and the Domestic Violence Network, a coalition of shelters and organizations
devoted to preventing domestic violence. These organizations provide invaluable support
and education to countless women nationwide.
As employment counsel to hundreds of employers, I have provided legal advice on
domestic violence situations for over 10 years. Such counsel has included drafting
workplace domestic violence policies and conducting training on best practices for
dealing with domestic violence situations at work, including stalking of employees,
threats by abusers against employees, and frequent requests for time off. I have also
developed a web-based training program on workplace violence for my clients.
Domestic Violence in the Workplace
As a result of my background and experiences, I am extremely sensitive to the
perspective of domestic violence victims. With nearly one in three women reporting
abuse at some time in their lives, domestic violence is likely to affect most workplaces. .
Indeed, I believe employers are legitimately concerned about harmful domestic
relationships spilling over into the workplace as the number of these incidents continues
to grow.
Domestic violence can affect an organization in numerous ways. Certainly, violence in
the workplace exposes employees to physical harm, but even the threat of violence can be
1
U.S. Department of Justice, Bureau of Justice Statistics, (2000). Intimate Partner Violence. NCJ 178247
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detrimental to employee output, attendance, morale, well-being, and retention. In a
survey of Fortune 1000 companies, 49 percent of corporate leaders said domestic
violence had a harmful effect on their company's productivity; 47 percent said it had a
harmful effect on attendance; and 44 percent said it had a harmful effect on health care
costs. For all these reasons, workplace violence can negatively affect employers' bottom
lines. In 2003, the Centers for Disease Control and Prevention estimated
domestic/intimate partner violence cost employers $727.8 million in lost productivity.
Not only does domestic violence affect a victim at work, domestic violence often
infiltrates a workplace to the point of placing the safety of other employees in jeopardy.
Studies of survivors (cited by the ABA Commission on Domestic Violence) indicate that
67% of their abusers came to the victims' workplaces. A recent study in Maine found
that 78% of surveyed perpetrators used the workplace to check up on, pressure, threaten,
or express anger or remorse to their victims. In addition, the SAFE Act states that 94%
of corporate security and safety directors at companies nationwide rank domestic
violence as a "high security" concern, and for good reason, as explained in the following
paragraph.
It is not unusual for abusers to threaten the safety of other employees in an effort to
control, gain access to, and/or determine the whereabouts of the victim. It is also not
unusual for the employer and other employees to become targets of the abuser's violence
if the abuser perceives them as providing assistance or protection to the victim. Any
measures to address domestic violence in the workplace must appropriately balance the
victim's individual interests with the rights of all employees to work in a safe
environment.
One of the many situations in which I participated as a domestic violence prevention
team member involved a female abuser who threatened the life of a male employee (her
significant other) and other employees who refused to disclose his whereabouts or permit
her to speak with him by phone at work. This went on for several weeks, during which
time the employer adjusted his work schedule, placed him on paid leave, required that he
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obtain a restraining order, and imposed other conditions to protect him and the
workforce. Notwithstanding these efforts, she persisted in stalking him at work. In the
meantime, and while the employer was assisting the victim, he, unbeknownst to the
employer, disclosed to her where he was staying while on leave and advised her of all
efforts the employer made to help him. She then became extremely angry at the
employer for interfering and began making threats, including death threats, against other
employees (the receptionist, his supervisor and others), which led the employer to place
the receptionist on paid leave in order to protect her. The abuser then showed up on the
premises with a loaded gun and threatened to kill employees if her significant other did
not come out to see her, while her four small children were in her car observing.
Although the employee had obtained a restraining order against her, and although the
police were called to subdue the situation and arrest her, she posted bail and later was
involved in a drive-by shooting at the victim's resident. She ultimately spent time in jail,
but was later released and resumed her relationship with this gentleman, in spite of all the
efforts the employer had made to protect him and other employees. Thereafter, the
relationship would become volatile (violence and threats) again. The employer finally
determined that the only way to protect the safety of the entire workforce was to
terminate his employment.
Employer Response
Over the last decade, employers have begun to recognize the impact domestic violence
has on the workplace and have actively sought to mitigate its potential effect on their
organization. Certainly, progress varies across the professional landscape; while some
employers are just starting to develop and implement workplace violence programs, other
organizations have been leaders in the fight against domestic violence and have long
provided support and resources to victims. The SHRM Knowledge Center is frequently
contacted in regards to issues relating to domestic violence in the workplace. Specifically,
HR professionals are interested in learning how to implement successful workplace
policies, make available victim referral services, and establish workplace security
measures around workplace violence events.
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SHRM strongly believes that every employee is entitled to a safe work environment, and
HR professionals play a critical role in ensuring their organizations provide necessary
support. HR professionals can help their organizations create and foster a culture that
promotes diversity, effective communication and the dignity and respect of all
employees.
To reinforce this culture, it is SHRM's view that organizations need domestic violence
policies that ensure a consistent and uniform organizational response to domestic
violence and limit the occurrence of violent incidents. Employers need policies that
outline ways the organization can support victims and the safety of all employees. Once
a policy is in place, an employer must make sure all employees are aware of it through
communication, training and enforcement. To reduce violence at the workplace, it is
critical that employers create workplaces where employees will feel free to come forward
by ensuring their situation is handled in a sensitive and confidential manner.
Progressive employers who have addressed this issue realize the complexities of dealing
with domestic violence in the workplace. They understand there is no "one size fits all"
approach to providing assistance when domestic violence finds its way into the
workplace. Each situation must be evaluated on a case-by-case basis. Employers have
established multi-disciplinary teams that are charged with evaluating workplace violence
issues as they arise. These teams are normally comprised of human resource, security,
safety, legal, and operations personnel who have been trained in evaluating and handling
workplace violence situations. These teams often have outside consultants on call, such
as psychologists and law enforcement personnel who have expertise in domestic violence
evaluation and intervention.
When these teams evaluate domestic violence situations, the first issue is to assess
whether the domestic violence has infiltrated the workplace, and if not, the likelihood that
it might. The next step is to assess the risk to the workplace as a whole. Numerous
factors must be taken into account. These factors include: (1) whether the abuser has
visited the employer's premises; (2) the abuser's behavior while on any of the employer's
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property (including parking lots, etc.); (3) whether the abuser has been contacting the
victim at work; (4) the nature of any communications the abuser has had with the victim
at work; (5) whether the abuser has threatened or attempted to penetrate the employer's
security measures; (6) whether the abuser has threatened other employees or the
employer's property; (7) whether the victim has obtained a restraining order; (8) whether
the victim is seeking assistance from a lawyer, the courts, domestic violence advocates, a
therapist, and other resources; (9) whether the abuser has previously caused physical
harm to the victim; (10) whether any efforts by the employer to assist the victim will
increase the likelihood, nature, or extent of violence in the workplace; (11) whether the
victim has children who are also at risk; and (12) whether the victim will fully cooperate
and not undermine any assistance the employer provides.
Psychological experts on domestic violence have advised employers that they must be
careful about the steps they take to assist victims when domestic violence finds its way
into the workplace. Even seemingly helpful measures such as providing time off to the
victim, changing the victim's telephone extension, refusing to allow the abuser to speak
with the victim by telephone, requiring the victim to obtain a restraining order, and
refusing to tell the abuser whether the victim is or is not at work can jeopardize the safety
of the entire workforce. Abusers, who have anger and control problems, often perceive
such efforts as a conspiracy between the employer and the victim. They become
frustrated, angry, and feel out of control when employers make it difficult for them to
access their victims. Unfortunately, and in too many cases, the employer and other
employees unwittingly become additional targets of violence because of their good faith
efforts to help or protect the victim.
As I mentioned earlier, I have advised numerous employers on workplace violence and
workplace domestic violence situations. I have found employers to be extremely
compassionate about the challenges facing victims. I have also found them to be more
than willing to provide reasonable assistance to victims (including reasonable time off
from work), without a government mandate, as long as the assistance did not jeopardize
the safety of the rest of the workforce. In fact, a new federal mandate, as proposed in the
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SAFE Act, could prevent an employer from properly assessing and reacting to the unique
situation they are facing.
I encourage employers and my clients to adopt voluntary policies to address domestic
violence in the workplace, as employers need flexibility when providing any particular
measures or benefits when domestic violence becomes a workplace issue. Every
situation has to be evaluated on a case-by-case basis, with safety of the entire workforce
being the top priority.
I am not familiar with any data that demonstrates that employees have been discriminated
against by their employers because of their domestic violence situations or that employers
are regularly terminating their employment because of the domestic violence. Many of
the statistics surrounding the issue of domestic violence come from victim studies. To
serve as a useful guide for employers and public policy makers, this information must be
combined with the experience of employers and experts on the psychological and safety
aspects of domestic violence. Because of the many factors that must be considered when
domestic violence enters the workplace, Congress would be remiss in mandating any
measures unless adequate research examining the total picture has been done.
The Occupational Safety and Health Administration (OSHA) has studied the issue of
workplace violence for many years. However, to date, OSHA has only issued guidelines
and elected not to issue regulations because of the difficulty in mandating specific
standards when there are no easy answers, many factors are involved, and there is no
perfect solution.
Before any federal employment legislation is considered, the government should
thoroughly research best practices already utilized by employers to address domestic
violence situations, provide guidelines to employers on how to assess workplace risks of
domestic violence, encourage employers to provide victims with referrals and resource
materials, encourage employers to take steps to increase workforce awareness of
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domestic violence issues, and consult with psychological and law enforcement experts on
the risks of well-intentioned intervention by employers.
General Comments About the SAFE Act
The SAFE Act incorporates concepts from the Family and Medical Leave Act (FMLA),
the Americans with Disabilities Act (ADA), the Fair Labor Standards Act, and various
federal laws on domestic violence (such as the Higher Education Amendments of 1998
and the Violence Against Women Act). It gives enforcement power to the Department of
Labor (DOL), rather than the Equal Employment Opportunity Commission (EEOC) or
OSHA, who have far more familiarity and expertise in dealing with employment
discrimination and safety issues.
SHRM is concerned that the legislation primarily focuses on protecting individual
victims of domestic violence and ignores the inevitable workplace safety issues that will
arise and affect other employees and entire workforces. SHRM believes that there needs
to be a balance between the interests of a victim and the welfare of all other employees
who, due to no fault of their own, often become unintentional, additional victims of the
domestic violence.
The other major challenge with the SAFE Act involves numerous implementation and
interpretation challenges. In an effort to protect victims, it overlooks the realities of the
workplace and the difficulties that employers will have in administering its provisions. .
SHRM also has concerns with the leave benefit provisions of the legislation. Both of
these issues are addressed later in these comments
Leave Benefits
The SAFE Act would provide a federal entitlement to workers to emergency leave in the
event of domestic or sexual violence. As I understand it, one of the purposes of the
SAFE Act is to allow victims of domestic violence to take time off from work to make
court appearances, seek legal assistance, and get help with safety planning. However, I
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question the necessity of a federal requirement that employers provide an entirely new
category of leave when employees virtually always have available other types of leave.
There are no data to suggest that current leave programs fail to provide adequate time off
for victims of domestic violence. Employers nationwide are committed to providing
voluntary paid leave to their employees because offering competitive workplace benefits
allows employers to increase employee morale, retention, and productivity, all of which
are crucial elements to organizational success.
In fact, a majority of employees view paid time off as one of the more important benefits
an employer can offer. For example, employee benefits were cited as the second-most
important recruitment and retention factor behind only compensation in the 2005/2006
SHRM Job Satisfaction Survey Report . To compete for talent, most employers currently
provide voluntary paid vacation, paid sick days, paid personal days, paid time-off (PTO)
plans and liberal attendance policies. These benefits come at a significant cost to
employers, as roughly 31 percent of payroll is spent on benefits (both voluntary and
involuntary benefits). Moreover, the cost of these voluntary benefits increased by 29
percent in 2006 over the previous year.2 Even with these benefit cost increases,
employers continue to offer these benefits because they are committed to helping their
employees balance the demands of both their work and personal lives.
Many employers also offer nontraditional scheduling options to help accommodate
employees' work/life balance. According to the 2006 SHRM Benefits Survey Report ,
thirty-five percent of organizations allow for compressed workweeks, where full-time
employees are allowed to work longer days for part of a week or pay period in exchange
for shorter days or a day off during the same period. Such scheduling benefits give
another dimension of flexibility to employees who are dealing with domestic violence
issues.
2
2006 SHRM Benefits Survey Report
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Since many employers already offer paid leave voluntarily to their employees, a federal
mandate requiring leave for domestic violence could have the opposite effect of its
intention. It is likely that some employers would be forced to reduce existing employee
benefits in order to comply with a new federal standard for domestic violence-related
leave. In this way, any federal initiative that limits employer flexibility tends to work
against employees. This reality has been well-documented in several congressional
hearings since enactment of the Family and Medical Leave Act. Employers that provided
generous paid leave benefits prior to the FMLA's enactment have been impacted the
most by the Act's provisions. The end result has been more organizations rethinking
their existing sick leave programs and the voluntary expansion of paid leave policies.
Adding a new type of leave system will only heighten this concern, and will discourage
employers from implementing additional improvements in their paid leave programs.
Moreover, under current law, employees already have access to job-protected leave under
the FMLA, which was established to assist employees in balancing their work and family
life. The law guarantees eligible employees 12 workweeks of unpaid leave during any
12-month period for the birth or adoption of a child or for an employee's serious medical
condition or to care for a parent or child. Some states have additional family and medical
leave requirements as well. Federal law does not require FMLA leave to be paid, but 32
percent of HR professionals responding to the 2006 SHRM Benefits Survey Report
indicated that their organizations did offer some paid family leave. Twenty-seven
percent of HR professionals reported that their organizations offered family leave above
required federal FMLA leave, and 25 percent offered family leave above required state
FMLA leave.
The leave benefits proposed in the SAFE Act provide for six (6) weeks of time off. This
time off is in addition to any FMLA leave benefits to which the employee is entitled.
There is no requirement that these six weeks run concurrently with FMLA leave. Being
the victim of domestic violence is emotionally and psychologically traumatic, and as a
practical matter, it is highly likely that the situation would qualify as a serious health
condition under the FMLA, allowing the victim to take up to 12 weeks of leave.
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Unemployment Benefits
The legislation not only proposes that employers provide six weeks of time off, it also
requires unemployment benefits for victims of domestic violence who are separated from
employment "due to circumstances resulting from the individual's experience of
domestic violence." There is no requirement that the victim must actually remove
himself/herself from the abuser's household. SHRM is concerned that language in the
SAFE Act would allow an abuser to manipulate the victim by forcing a victim to quit
his/her job and stay home (in the abuser's household) while collecting unemployment
compensation at the same time. Employers should not be required to fund unemployment
benefits when the victim has not taken steps to actually remove himself/herself from the
abusive situation.
Discrimination and Accommodation Benefits
The discrimination provisions in the legislation prohibit discrimination because an
applicant or employee: (1) is or is perceived to be a victim of domestic violence; (2)
participates in legal proceedings related to the domestic violence; or (3) requests an
accommodation to increase his/her personal safety in the workplace. As a result, an
employer would also have a "duty to reasonably accommodate" the employee. However,
unlike the ADA, the legislation does not provide a process to engage the employee to
determine what type of accommodation is necessary. If the employer requires the
employee to take a leave of absence because the abuser is harassing or stalking the
employee at work, and if the employee refuses to do so, it could be considered a
discriminatory practice. If the employer requires the employee to adjust his/her work
schedule and the employee refuses, it could be considered discrimination if the employer
insists upon it. If the employer refuses to install additional locks or other security
measures, it could be considered discrimination. Unlike the ADA, the SAFE Act does
not require an interactive process for evaluating accommodations.
More significantly, the SAFE Act specifically states that "an employer shall
not…discharge…or otherwise discriminate against any individual…because the
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workplace is disrupted or threatened by the action of a person whom the individual states
has committed or threatened to commit domestic violence, dating violence, sexual
assault, or stalking against the individual, or the individual's family or household
member." This language raises serious concerns about an employer's ability to ensure a
safe workplace. For example, consider the situation in which an abuser has threatened to
kill other employees because they will not disclose the whereabouts of the victim or will
not provide telephonic or in person access to the victim. In this situation, the welfare of
other employees is certainly being threatened, but under the SAFE Act, employers would
be prohibited from terminating or placing on administrative leave the employment of the
victim, even when such termination might be the only way to remove the safety risk from
the workplace.
Implementation Concerns
I understand the desire of members of the Subcommittee to help victims of domestic
violence. Although well-intentioned, the SAFE Act includes a host of broadly based
employment-related provisions that would negatively impact employers. Moreover,
these provisions conflict with other federal and state employment laws, which will cause
confusion for both employers and employees. In particular, the bill would invite
confusion with the FMLA and state FMLA laws.
The SAFE Act would apply to employers with as few as 15 employees. The bill would
be a monumental new requirement on small employers that are not currently covered
under the FMLA. Also, unlike the FMLA, there is no service eligibility requirement
under the SAFE Act, so an employee who has been with an organization even one day
would be eligible for the 30 days of leave, and all part-time employees are presumably
covered under the proposed legislation as well.
Employers would face many implementation and interpretation problems if the SAFE
Act were enacted. I have outlined a number of these issues below.
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New Federal Leave Statute —The SAFE Act proposes an entirely new federal leave
statute for addressing employees, or employees' family members, who are victims of
domestic violence. The leave provisions entitle employed victims of domestic or sexual
violence to take 30 days (6 workweeks) of leave in any 12 month period to seek medical
help, legal assistance, counseling, safety planning, and other assistance. A victim of the
kind of domestic violence contemplated by the proposal is under substantial personal
stress that normally results in one or more psychological conditions (such as posttraumatic
stress syndrome, battered woman syndrome, startle response syndrome, and a
host of other related conditions). These conditions would, in all likelihood, qualify as a
psychological serious health condition under the FMLA. Therefore, the FMLA already
provides adequate leave.
Impact on Small Employers — The SAFE Act would apply to employers with 15 or
more employees, placing significant new requirements on small employers that are not
currently covered under the FMLA. Instead of burdening small employers, Congress
might consider incentives for employers to provide additional resources or benefits to
employees who may be victims of domestic violence.
Coordination with Other Laws —Many of the SAFE Act provisions are not coordinated
with other federal and state employment laws, which will cause confusion for both
employers and employees. Most notably, they are not coordinated with the FMLA or the
ADA, or OSHA. They will be administered by the DOL, rather than EEOC or OSHA
who have far more experience with discrimination and accommodation issues.
Interaction with Other Laws —The psychological condition of the victim could
potentially qualify as a "serious health condition" under the FMLA and a "disability"
under the ADA. This invites confusion as to which law will apply and how they will
relate to each other. For example, there is no requirement that domestic violence leave
run concurrently with FMLA, when the leave would in all likelihood qualify as FMLA
leave. The bottom line is that the SAFE Act expands the FMLA entitlement from 12
weeks to 18 weeks when the additional 30 days of domestic violence leave is added to it.
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Furthermore, an employee may elect to use paid time off while on domestic violence
leave, whereas under the FMLA, an employer can require that paid time off be used. If
the victim's psychological condition qualifies for leave under the SAFE Act, FMLA, and
ADA, which law will take precedent? Can an individual circumvent each law by
stacking leave under each one of them?
Ambiguous Definitions— Many of the definitions in the SAFE Act are overly broad and
could result in interpretation disputes.
1.)
"Domestic Violence" —The definition of "domestic violence" is not clear. The
proposal adopts the definition in the Higher Education Act amendments.
However, that definition states that domestic violence "includes felony and
misdemeanor crimes of violence." What else does it include? Are employers
supposed to become experts on what constitutes "crimes of violence?" Must there
actually be a conviction for a crime of violence for the abuser's conduct to
constitute "domestic violence?"
2.) "Family Member "— The definition of "family member" includes the abuser and
perhaps others not intended by the proposal. The abuser could purportedly take
leave to appear in court where he/she is being prosecuted for a crime of domestic
violence. The abuser could also take leave for his/her own psychological
condition to purportedly attend counseling, but without any required proof that
he/she used the time off for that purpose, the abuser could just as likely use the
leave to harass, stalk, and threaten the victim.
3.) "Perceive Victims "—The civil rights protections apply not only to victims, their
family and household members, but also to those "perceived" by the employer to
be victims even though they had never suffered any actual threats or violence. It
is unclear what is meant by "perceived" or how it would have any relevance if the
individual is not actually a victim of domestic violence.
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4.) "Victim" —If co-workers become an unintended target of the domestic violence,
there is an argument that they may be covered by the proposal as a "victim."
Accommodation Process —Unlike the ADA, there is no requirement that the victim
engage in an interactive dialog with the employer to identify and evaluate the
effectiveness of possible accommodations. There is no protection for employers should a
victim refuse to cooperate with any protective measures that the employer might feel
would be appropriate. For example, if the employer complies with a request by a victim
for a different telephone number at work so that the abuser cannot reach him/her directly,
and if the employee then turns around and gives the new number to the abuser, should the
employer have any further duty to accommodate? Unfortunately, there is no provision in
the SAFE Act that would require the victim to have a genuine and demonstrated
commitment to improve his/her situation or to refrain from contributing to workplace
safety risks.
"Direct Threat" —As mentioned earlier, an employer is basically prohibited from
protecting other employees who may be threatened by the abuser. The victim's welfare
is required to be protected even at the risk of the safety of other employees. SHRM is
concerned that the legislation overlooks the effects that the domestic violence may have
on other employees, including their overall safety. Unlike the ADA, the SAFE Act
includes no "direct threat" defense when the domestic violence poses a significant risk of
substantial harm to the safety or health of the victim or other employees. If the victim's
safety or other employees' safety is at risk, employers should be able to apply the direct
threat concept and defense. If the employee does not request an accommodation or
believes one is not necessary, and if the employer disagrees because the victim's or other
employees' safety is in jeopardy, there is no mechanism that would allow an employer to
force a needed accommodation without potentially violating the proposal's antidiscrimination
provisions that protect "perceived" or actual victims.
Victim Commitment —Another concern with the SAFE Act is that it does not require
that the victim have actually left the abusive situation and does not require that the victim
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refrain from conduct that would undermine any assistance provided by the employer. For
example, it will apply to victims who stay with their abusers. It is not unusual for victims
to pursue avenues for leaving the abusive situation, but then return to the abuser. The bill
would allow a victim to prepare to leave over and over again without really doing so,
year after year. At some point, an employer should not be required to provide further
assistance if the victim is not genuinely committed to permanently removing
himself/herself from the abuse.
Certification Requirement —Another practical concern with the proposal is the
certification requirement. The bill allows an employee to simply provide a sworn
statement of the employee that he/she is the victim of domestic violence without any
corroborating proof. The entire leave entitlement rests solely on an employee's word or
attestation with no verification required from a third party. This raises concerns about
fraudulent uses of the leave, as there is nothing preventing anyone from merely claiming
he/she is a victim of abuse and receiving the benefit.
Verification Requirement —The proposed bill does not permit employers to obtain
verification that the employee actually spent his/her time off for one of the stated
purposes.
Timeframe— There is no provision requiring that the domestic violence be recent
enough to justify any time off. An employee could produce a police report of domestic
violence that is three years old and still be entitled to take the leave.
Confidentiality Requirement —Information in connection with domestic violence leave
or reasonable accommodation of an employee's circumstances must be maintained in the
"strictest" confidence. Such strict confidentiality is not necessarily in the victim's best
interests or the workforce's best interests. For example, if the receptionist who answers
all calls knows the victim is absent, but does not know the victim has gone to court to get
a restraining order or is making arrangements to move to a shelter, the receptionist might
inadvertently take a call from the abuser and tell him/her that the victim is not at work
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that day. The abuser would not have known it in the absence of that disclosure, could get
very angry, and could then physically abuse the victim later for not being at work. Also
for example, an abuser may have told the victim that he/she would harm or kill any coworker
who interferes with his/her attempts to reach the victim at work. The victim
passes along this threat to the HR manager when the victim requests time off. Under the
confidentiality provisions of the bill, the HR manager would be prohibited from warning
other employees that their safety or lives might be in jeopardy. A better approach would
be to require a good faith effort by the employer to maintain confidentiality to the extent
reasonably possible under the circumstances, but an employer should not be restricted
from disclosing information that it reasonably believes would be beneficial in protecting
the victim or other employees.
Purpose of Leave —Under the proposal, there is a very real possibility that an abuser
could take advantage of the situation by requiring his/her victim to take "domestic
violence leave" to stay home, go on vacation, or engage in other activities under a threat
of violence. Rather than risk physical abuse to self or perhaps his/her children, the victim
will be inclined to go along with the abuser's wishes, knowing that the leave is job-
protected. This will only perpetuate the abusive situation, not end it as presumably
intended by the bill.
Service Eligibility Requirement —Unlike the FMLA, there is no service eligibility
requirement under the SAFE Act, so an employee who has been with an organization
even one day would be eligible for the 30 days of leave.
"Hours Worked" Eligibility Requirement —Unlike the FMLA, there is no "hours
worked" prerequisite under the SAFE Act. All employees would be covered, including
temporary, seasonal, contract labor, and part-time employees. An employer's efforts to
adequately staff to meet business needs can be easily undermined by an employee who
simply hires on, even as a temporary employee, knowing that he/she can immediately
request time off with guaranteed reinstatement rights.
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Duration of Leave —There is no basis or justification for mandating six (6) weeks of
leave, as opposed to a shorter amount of leave, especially given that other leave programs
are usually available.. Six weeks seems to be an excessive amount of leave and could
invite misuse of the leave provisions.
Intermittent Leave —SHRM is also concerned that the proposal stipulates that the 30
days of leave do not need to be taken continuously, but can be taken on an intermittent
basis and advance notice is not required. Leave taken on an intermittent basis under the
FMLA has resulted in a host of challenges for HR professionals. It is often difficult to
track an employee's intermittent leave usage, particularly when the employee takes leave
in small increments. In addition, unscheduled, intermittent leave poses staffing problems
for employers. When an employee takes unscheduled, intermittent leave with little or no
advance notice, organizations must cover the absent employee's workload by reallocating
the work to other employees. For example, 88 percent of HR professionals responding to
the 2007 SHRM FMLA Survey Report indicated that during an employee's FMLA leave,
their location attends to the employee's workload by assigning work temporarily to other
employees.
Statute of Limitations —The statute of limitations for filing a claim under the SAFE Act
is two years, even though it is only 300 days maximum for discrimination under the Civil
Rights Act, the ADEA, and the ADA. This could suggest that discrimination based on
domestic violence is given more weight than discrimination based on sex, race, national
origin, religion, age, and disability.
Leave as an Accommodation —In light of the fact that the reasonable accommodation
provisions require that a leave of absence be considered as an accommodation, there is no
reason to mandate six weeks of leave. This creates an incredible inconsistency and could
also be interpreted to mean that more than six weeks of leave might be a reasonable
accommodation.
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Unemployment Provisions —The proof of domestic violence required for
unemployment purposes is inconsistent with the proof required for the leave and
discrimination portions of the proposal. Interestingly, a state would not be required to
merely accept a sworn statement by the victim, whereas an employer would be required
to do so. There appears to be no legitimate reason why two different standards should be
used.
While the purpose of the SAFE Act is a laudable one, the unintended consequences of
this legislation suggest that it is not the best approach for helping victims of domestic
violence. Another approach that would be far less disruptive to employers and
employees would be for Congress to provide federal grants, tax incentives/credits, or
training program initiatives for employers. Under such initiatives, employers would be
encouraged to employ and train victims of domestic violence and collaborate with
shelters for victims of domestic violence to provide employment and other resources.
Such programs would be particularly attractive to larger employees, who are in a better
position to employ, provide resources and assistance to, and protect victims. Large
employers might very well view such an initiative as an attractive opportunity for
contributing to the community on a social issue of great importance. In addition, they
could lead the way for developing best practices and evaluating the success and
challenges of such initiatives so that other employers could learn and benefit from their
experiences.
Again, thank you for the opportunity to provide my perspective on an issue that is
important to me both personally and professionally. SHRM is committed to working
with members of the Subcommittee to formulate policies that will encourage employers
to continue to offer reasonable leave benefits that support their employees as they
respond to personal needs. I look forward to answering any questions you might have.
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