Employment Law: Right of the Abused Person on the Job

By: the Knoxville Bar Association

Domestic violence has many far-reaching effects. If you are employed, the effects of domestic violence can spill over into the workplace. The most obvious effects of domestic violence on employment are tardiness and absences. When you are late or absent from work because of domestic violence, the policies regarding sick leave, personal leave, absences and tardiness contained in the employee manual, employment agreement or collective bargaining agreement will control. Domestic violence can also impact your job performance. In these situations it is also important that you communicate with your employer regarding the situation in order to avoid trouble in the future.

Employment-at-will:

The relationship between an employer and employee in Tennessee has been very well settled by the courts. This relationship is called "employment at will" which in its simplest terms means that an employer can fire an employee for a good reason, a bad reason or no reason at all. One exception to this rule is where the employer and employee have entered into a written employment contract which provides the conditions under which an employee can be disciplined or fired. However, the vast majority of employment relationships are "at-will". The characterization of the employer/employee relationship as an "at-will" relationship has a great impact on the rights of an employee who is the victim of domestic violence.

Employee manuals/employment contracts/collective bargaining agreements:

In most circumstances, the rights of the employee will be explained in the employee manual prepared by the employer. The provisions of the employee manual will be binding on an employer only if the manual contains language guaranteeing the provisions as a condition of employment. However, most employee manuals contain a disclaimer which provides that the employer retains the right to change the provisions of the manual at any time, with or without notice. The disclaimer may also state that nothing contained in the manual is intended to change an employee’s "at-will" status. If such language is present in the employee manual, the provisions contained in the manual may or may not control the terms of employment.

Employers who employ union workers will have a collective bargaining or union agreement. Other employers may have an individual employment contract with an employee. In each of these situations, policies contained in these documents regarding sick leave, personal leave, absences and tardiness will govern the rights and duties of the employer and the employee.

Most employee manuals, collective bargaining agreements or employment contracts will provide grievance procedures. If employees feel they have been treated unfairly or not in accordance with established polices, they can use these procedures to seek relief. In union situations, if an employee uses the grievance and arbitration procedure, a hearing will be held by a neutral arbitrator who favors neither the employee nor the employer.

Some employers, particularly small ones, may not have a written employee manual or established policies regarding absences, etc. This is similar to the situation where there is a written employee manual but it contains disclaimer language. These situations are the purest form of the "employment-at-will" relationship. Because there is no set policy on how an employer will handle a certain situation such as excessive tardiness or absences, an employer will most likely deal with each employee on a case-by-case basis. This makes it hard for an employee to anticipate how an employer will react in certain situations. In all instances, but especially where no written policy exists, it is a good idea for the employee to discuss the situation with the employer and come to a mutual agreement. While it may seem difficult for victims of domestic violence to discuss such a personal subject with their employers, it is in their best interest to do so in order to avoid complications and misunderstandings in the future.

When all available leave time has been used

Once you have no paid leave time available, the employer has the discretion whether to allow you additional unpaid leave or whether to follow the procedures outlined in the employee manual or union agreement regarding discipline and termination. If your employer does not have an employee manual outlining such procedures or explaining its leave policy, the employer is free to handle the situation as it sees fit. All actions of the employer however must meet the requirements of applicable federal and state law regarding discrimination, etc. in employment practices.

Family Medical Leave Act

If you feel that you will be absent from work for several days due to injuries resulting from domestic violence or treatment for those injuries, you may be eligible for unpaid leave under the Family Medical Leave Act. This is a federal law which provides certain employees with unpaid leave for certain serious health conditions. The Act covers employers who have at least 50 employees. To be eligible for this leave, you must have been employed for at least 12 months and for at least 1,250 hours of service with the employer during the previous 12 months. This Act requires such employers to provide their employees with twelve (12) weeks of unpaid leave each year for absences from work due to a serious health condition of the employee or a family member of the employee. The definition of a "serious health condition" is an illness, injury, impairment or physical or mental condition that involves inpatient care in a hospital or continuing treatment by a health care provider. For inpatient hospital care, an overnight stay in the hospital is required, followed by a period of incapacity that prevents the employee’s ability to work, attend school or perform other regular daily activities. Continuing treatment by a health care provider includes incapacities for a period of more than three consecutive calendar days and any subsequent treatment. Incapacities of more than three days require two or more treatments by a health care provider or a single treatment followed by a regimen of continuing treatment under the supervision of the health care provider. The provisions of this Act are very complex and detailed. If you feel you may be eligible for leave under this Act, you should contact your human resource department or an attorney.

Absence from work to appear in court

You may also be required to be absent from work to be a witness in court in a domestic violence case. There is no law in Tennessee which requires an employer to give an employee paid leave in order to appear as a witness in court or to respond to a subpoena. However, most employers allow the employee to take a sick day or personal day. It would benefit you to discuss the situation with the employer as early as possible to avoid any misunderstandings in the future.

Because Tennessee is an "employment-at-will" state, an employer in Tennessee can terminate an employee for any reason absent an written contract which provides otherwise. Therefore, you must try to work with your employer if it appears that any aspect of your job will be adversely affected by domestic violence. It is often better for you to be up-front about the situation as early as possible rather than to wait until you have no leave time remaining and hope your employer will be sympathetic to your situation.