HOW TO ADVOCATE FOR THE EMPLOYMENT RIGHTS OF VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, STALKING

1. HOW TO ADVOCATE FOR THE EMPLOYMENT RIGHTS OF VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, STALKING Presented by Robin Runge ABA Commission on Domestic Violence and Runger@staff.abanet.org

3. What is the Connection Between Domestic Violence, Sexual Assault, Stalking and the Workplace? � 25% of rape victims lose their job with in a year of the assault; � 30%-52% of employed victims of domestic violence lose their jobs due at least in part to the domestic violence; � 96-98% of employed domestic violence victims experienced problems at work related to the violence;

4. What is the Connection Between Domestic Violence, Sexual Assault, Stalking and the Workplace (Cont.)? � A recent study in Maine found that 78% of surveyed perpetrators used workplace resources at least once to express remorse or anger, check up on , pressure, or threaten their victim; � The survivor may be fired for job performance issues or the employer�s fear about violence at work; or

5. What is the Connection Between Domestic Violence, Sexual Assault, Stalking and the Workplace (Cont.)? � If the perpetrator harassed and/or assaulted the victim at work, the survivor may not feel safe at work and may quit her job; � If the perpetrator is someone the survivor was in a relationship with, s/he may know where the victim works, and may stalk her at work, she may need to obtain a protective order and have it enforced at work � The survivor may need time-off from work to heal from injuries caused by the assault, but she is afraid she will be fired;

6. How Does Employment Rights Advocacy Fit Into My Work on Behalf of Victims? A victim of domestic violence is referred to your office. She is currently working for a small graphic design firm as an executive assistant. She has obtained a temporary restraining order on her own, but she has come to you because she want a divorce from her husband, custody of her children and child support. She is currently staying with a friend, and feels safe there but explains that her husband has begun to call her repeatedly at work, and has even come there on one occasion threatening her. Last year, she missed a couple of weeks from work while she healed from injuries from a battering incident. She expresses her need to keep her job because she is saving up to rent an apartment for herself and her children. She is concerned about missing more days of work to �deal with� her husband.

7. What Happens if Your Client Loses her Job or Fears Losing Her Job When Trying to Seek Safety for Herself and Her Children? She may return to the batterer. She may not attend court proceedings or meetings with you. She may blame you for her job loss. She may be unable to focus on her safety and that of her children because she is seeking a home or is homeless.

8. How Can You Help Your Client Maintain Employment or Access Employment Related Benefits? Provide support and information about employment rights to your clients and about domestic violence to their employers Help the victim protect herself at work from the perpetrator, if appropriate Determine her employment status as a part of your intake. Provide limited representation to her regarding a domestic violence, sexual assault or stalking related employment law claim.

9. How Do Identify if Employment Is An Issue? Integrate questions about the impact the violence may have had on her employment status into your intake questions Explain that if she has had problems at work related to the violence or lost her job, she may be entitled to protections, including job guaranteed leave, unemployment insurance, or other employer-provided benefits.

10. Examples of Intake Questions Are you currently working? If no, did you lose your job because of the domestic or sexual assault �were you fired or did you quit? If no, have you applied for unemployment insurance? If yes, are you experiencing problems at work because of the assault (e.g., missing days of work due to the assault, missing deadlines, being stalked at work) Did the any violence or harassment take place at work? Do you have more examples of questions?

11. Identify the Type of Employment-Related Assistance Needed Once you have screened the survivor for employment issues, you need to determine what type of assistance would be most helpful taking into consideration: � Her need for safety � Her need to stay employed � Her access to benefits, coverage by employment laws � If she is prepared to tell anyone she works with about the violence � If she is still employed, or has already lost her job

12. How Can You Help Your Client If Safety At Work is an Issue If your client does not feel safe at work because of the perpetrator, there is a high likelihood she will abandon her job. Help her develop a safety plan for her at work to avoid this. Examples? Does she have a civil protection order? Can it be enforced at work? Change her work habits, screen her calls, ask to change her phone number, move to another location, change her hours. Other Examples?

13. How Can You Help Your Client If Safety At Work is an Issue? If the victim has a protective order make sure it includes the workplace Make sure she carries it with her at all times Any other suggestions? Give a photo of the batterer and a copy of the protection order to the security officer in the building? What if the batterer works at the same office? What are her options?

14. What Employment Laws Provide Protections to Victims of Domestic Violence, Sexual Assault, and Stalking? Like other employees, most victims of violence who work are at-will employees, however, they may have access to employment protections under state and federal law such as: Anti-discrimination and harassment laws Job-guaranteed leave from work to go to court or to heal from injuries. Unemployment insurance benefits (see materials from other presentation) By advising your clients about these rights you will help them help you better represent them.

15. Employment Law 101: At Will Employment At Will Employment: What is it? Who is subject to it? Union Contracts: What are they? What percentage of U.S. employees are covered by collective bargaining agreements Employment Contracts: What are they? Who has them? Undocumented Workers: Are they protected? Do they have employment rights?

16. What If She is Afraid of Losing Her Job Because of Missing Days of Work? If your client has expressed a fear that she may lose her job because she has received a warning about missing work or she anticipates needing to take time off from work to work with you: Discuss with her why she may miss work in the future � medical appointments, child care or illness, meet with you, court dates, etc. Although all absences can not be predicted, some planning is possible

17. Conduct a �Leave Inventory� Ask her to bring in any employment manuals, policies or other related materials that she received from work and at least one of her pay checks. Ask her if her employer provides her with paid vacation time, sick time, personal time or other paid or unpaid time off. Determine if she has any remaining and for what purposes she may use any remaining leave.

18. Anticipating the Need For Leave Review any policies and procedures with her and help her plan for anticipated needs for leave � match needs for leave with the kinds of leave available. Make sure she understands what her employer�s requirements are for accessing her leave.

19. What About the Family and Medical Leave Act? The federal Family and Medical Leave Act (FMLA) was enacted in 1993, and is the only federal law that provides any job guaranteed leave from work for employees. The FMLA provides: Up to 12 weeks of unpaid, job-guaranteed leave every 12 months to employees who have worked for their employer for at least 12 months and 1250 hours in the last 12 months, working for employers with at least 50 employees to heal from her serious health condition, or that of her child, spouse or parent

20. What Can a Victim/Survivor Take Family and Medical Leave For? An eligible employee who is a sexual assault survivor may take FMLA-qualifying leave to care for her own incapacity caused by her own �serious health condition�; OR to care for a child, spouse or parent with a �serious health condition�; OR for the birth of the employee�s child or the placement of the child with the employee for adoption or foster care

21. What is �continuing treatment� by a health care provider? A condition causing incapacity and an inability to work for three or more days that requires 2 or more visits to a health care provider or 1 visit and a regimen of treatment; or A chronic condition continuing over an extended period of time requiring periodic doctor�s visits and which may cause episodic incapacity; or Absences to receive multiple treatments for an illness or injury which would cause a period of incapacity of more than 3 days if not treated; or pregnancy

22. What is a Victim Entitled to if She Qualifies for Leave? Unpaid leave, though she may be able to use vacation, sick or other accrued paid leave Continuation of health care benefits if she received them Job protection � she cannot be fired for exercising her right to take the leave or for taking the leave, and you must be returned to the same or an equivalent position at the end of the leave

23. How Can a Survivor Use Her Right to FMLA Leave? A victim who needs time off from work to heal from mental or physical injuries from the assault may qualify for FMLA leave. Examples. Anchorage v. Gregg, Alaska, No. S-10722, 11/12/04 She may not take her leave to relocate, to see her attorney, or if her illness or injury does not rise to the level of a serious health condition There are specific regulations governing the rights and responsibilities of employees and employers under the FMLA

24. How Can I help My Client Enforce Her Rights Under the FMLA? If you believe that your client has been denied FMLA leave, otherwise had her rights under the statute violated you may provide her assistance in one of three ways: Enter into a limited retainer agreement and write a demand letter or help her write her own Help her find an employment law attorney Help her file a complaint with the U.S. Department of Labor � forms are available on line. The statute of limitations for the USDOL or court is 2 years.

25. State Leave Laws As of 2002, 21 states had some form of state unpaid, job guaranteed leave law similar to the federal FMLA that provided some form of protection for private sector employees including: � Time off to attend a child�s school event � Time off to heal from the employee�s serious health condition

26. Job Guaranteed, Unpaid Leave Specifically for Victims of Domestic Violence Under State Law In the 1990s, victim advocates began working with workers� rights advocates, welfare advocates, and women�s right groups to pass state laws providing targeted leave for victims of domestic violence Today, 6 states (California, Colorado, Hawaii, Illinois, Maine and North Carolina, New York City and Miami-Dade County have statutes and/or ordinances providing unpaid, job guaranteed leave (or leave as a reasonable accommodation) specifically to victims of domestic violence. Additionally, about half of the states have �crime victim leave laws� that give victims of crimes, including domestic violence, sexual assault, or stalking, time off to go to court at least under certain circumstances

27. Job Guaranteed, Unpaid Leave Specifically for Victims of Domestic Violence These laws vary, but provide leave for victims to: Go to civil court to obtain protection for themselves and their family Seek medical attention Obtain services from a domestic violence or rape crisis program Obtain legal assistance

28. Job Guaranteed, Unpaid Leave Specifically for Victims of Domestic Violence These laws prohibit an employer from discriminating against an employee for exercising their right to the leave, and the employer may require the employee to provide certification of their qualifying need for leave. If it is found that an employer failed to provide leave under these laws, and thus illegally fired a survivor, she may be entitled to reinstatement and back pay.

29. How Do I Assist My Client Who Qualifies for Time Off Under the FMLA or State Job Guaranteed Leave Law? Keep copies of fact sheets on the FMLA to provide to your clients � available at www.legalmomentum.org Determine if your state has its own leave law � dv or otherwise � and familiarize yourself with it. For example, in Illinois, the state Department of Labor has information and forms available for download: http://www.state.il.us/agency/idol/vessa/vessa.htm Provide basic information about these rights to your clients � anticipate their need to use leave.

30. How Do I Assist My Client Who Qualifies for Time Off Under the FMLA or State Job Guaranteed Leave Law? If your client anticipates the need for leave from work, help her determine if she qualifies for FMLA leave. If your client has already missed work, help her determine if it qualifies as FMLA leave and what, if anything, she needs to say or to give to her employer to ensure coverage. If you client has been fired for missing work, and she wants her job back, determine if it is FMLA-eligible and consider helping her write a demand letter or writing one yourself if you think there is a violation of law.

31. What if She Has No Time Off from Work Available? Approximately 40% of the workforce has no paid time off from work of any kind. A high percentage of the workforce is not covered by the FMLA. It may be possible to try to negotiate some time off or you may need to talk to your client about ways to avoid missing work. � STRATEGIZE!

32. What Protection is Available Under Federal Anti-Discrimination in Employment Law: Title VII Since 1964, Title VII of the federal Civil Rights Act, as amended in 1991, prohibits discrimination at workplaces with > 15 employees based on: Gender Race National origin Religion Color

33. Sex Discrimination, Domestic Violence, Sexual Assault, and Stalking State and federal law requires employers must treat male and female employees equally and female and male employees must receive equal pay for equal work To prove sex discrimination you must prove that you were treated unfairly at work by a supervisor or coworker because of your sex: Disparate Treatment v. Disparate Impact An employer can be held liable if: Failed to exercise reasonable care to prevent and correct the behavior; and The employee unreasonably failed to take advantage of corrective opportunities provided by the employer

34. Sexual Harassment In the 1980s, Catherine McKinnon introduced the concept of sexual harassment in her writings In Meritor Savings Bank v. Vinson , the U.S. Supreme Court recognized sexual harassment as a form of sex discrimination prohibited in the workplace. Must be unwelcome, sexual in nature, severe and pervasive so as to create a hostile work environment

35. Americans with Disabilities Act Prohibits discrimination in workplaces with > 15 employees against employees with �qualified� mental or physical disabilities May require an employer to provide a �reasonable accommodation� to an employee with a �qualified disability� to enable her to work How might this provide protection to a victim of domestic violence, sexual assault or stalking?

36. State Anti-Discrimination in Employment Laws Every state in the country has their own set of anti-discrimination statutes that may cover smaller employers, may cover a wider group of employees (such as care-takers or parents).

37. How May I assist my Client If she Believes that She Has Been Discriminated Against in Violation of One of these State or Federal laws? Advise her to talk to the person discriminating or harassing her Talk to a person in authority � examples? If she belongs to a union, advise her to talk to the shop steward or business agent Advise her to keep a journal recording incidents of discrimination Provide her with information about how to file a claim for discrimination with the EEOC or state agency.

38. How May I Assist My Client If She Believes that She Has Been Discriminated Against in Violation of One of these Anti-Discrimination Laws? Keep fact sheets available for your clients that describe what constitutes discrimination and/or harassment and what the process is for filing a claim with the U.S. Equal Employment Opportunity Commission and/or the State agency enforcing the state laws. www.eeoc.gov Each state is unique, but statutes of limitations range from 90 to 360 days and the EEOC is 300 days from the last discriminatory incident. She must file with the EEOC before going to court, but in many states she may go directly to court.

39. How Can I Assist My Client in Filing a Complaint/Charge with the EEOC or Equivalent State Agency? Make information about how to contact the EEOC available to your clients so that she can call and set up a time for an interview. Consider accompanying her to the interview, especially if she is nervous, is not fluent in English or has a disability. Explain to her that during the interview she will be asked to provide a description of the discriminatory or harassing behavior IN DETAIL and help her prepare.

40. How May I Assist My Client If She Believes that She Has Been Discriminated Against in Violation of One of these Anti-Discrimination Laws? Explain that the more detail she has, the better. After she files her charge, the Agency will inform the employer of the complaint and obtain information from them. The Agency will undertake an investigation at no cost that may last months or years. Many Agencies encourage mediation, so she may be asked to mediate her case.

41. Domestic Violence Employment Discrimination Laws Illinois and New York City both specifically prohibit employers from discriminating against employees because they are victims of domestic or sexual violence These laws are more straightforward than the Title VII discrimination claims � they don�t need to be tied back to sex discrimination theories Also, under these laws, discrimination is defined to include firing or penalizing a victim because of actions of her abuser Similar laws are pending in several other states and federally

42. Domestic violence discrimination laws (cont.) The Illinois and NYC laws also require employers to make �reasonable accommodations� for victims � This could include safety measures, time off, modified schedule, etc. Before providing a reasonable accommodation, the employer may ask for �certification� establishing that the employee is a victim Employers must keep information they receive, and the request for leave, confidential

43. How May I Assist A Survivor Who Lost Her Job Because of the Violence? Find out the circumstances around their losing the job � was it because of an abuser�s harassment of them at work? Did they miss work to enforce a legal right? Were they fired for performance problems � or simply because they were a victim? Encourage them to apply for unemployment insurance.

44. Workplace Protection Order Statutes Beginning in the 1990s, lead by California and Georgia, states began passing statutes enabling employers to obtain workplace protection orders on behalf of employees who were threatened at the workplace � developed out of experiences with workplace violence unrelated to domestic violence or sexual assault.

45. Workplace Protection Order Statutes Today 9 states have statutes enabling employers to obtain workplace restraining or protection orders, and 9 more states have bills pending The newer statutes specifically reference domestic violence, sexual assault or stalking: Example, Arkansas law states: �if an employer or employer's employee or invitee" has been a victim of unlawful violence, received a threat of violence at the work site, or been stalked or harassed by an individual at the work site, the employer may, in addition to or instead of filing criminal charges against the individual, seek a temporary restraining order (TRO), a preliminary injunction, or an injunction prohibiting further unlawful acts by that individual at the work site.� Ark. Code � 11-5-115.

46. Resources www.abanet.org/domviol www.legalmomentum.org www.nelp.org www.endabuse.org www.caepv.org