Florida Employers Must Grant Leave To Domestic Violence Victims

I've always said that Florida is one of the most anti-employee states in the nation. But we do have some pro-employee laws. One law that many employers forget about is Fla. Stat. Sec. 741.313, which requires them to give leave to employees who are domestic violence and sexual violence victims.

Who is covered?: This applies to employers with 50 or more employees and to an employee who has been employed for at least 3 months. “Victim” means an individual who has been subjected to domestic violence or sexual violence.

When are you covered and how long?: "An employer shall permit an employee to request and take up to 3 working days of leave from work in any 12-month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence. This leave may be with or without pay, at the discretion of the employer."

What can you use the leave for?: Seeking an injunction, getting medical help, going to a shelter or crisis center, securing the home, and getting legal assistance. Here are the specifics.

This section applies if an employee uses the leave from work to: 

1. Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;
2. Obtain medical care or mental health counseling, or both, for the employee or a family or household member to address physical or psychological injuries resulting from the act of domestic violence or sexual violence;
3. Obtain services from a victim services organization, including, but not limited to, a domestic violence shelter or program or a rape crisis center as a result of the act of domestic violence or sexual violence;
4. Make the employee’s home secure from the perpetrator of the domestic violence or sexual violence or to seek new housing to escape the perpetrator; or
5. Seek legal assistance in addressing issues arising from the act of domestic violence or sexual violence or to attend and prepare for court-related proceedings arising from the act of domestic violence or sexual violence.

How much notice do you have to give?: If you or a family member are in imminent danger, none. Otherwise, you have to give "appropriate advance notice of the leave as required by the employer’s policy along with sufficient documentation of the act of domestic violence or sexual violence as required by the employer."

What if you have other leave?: "An employee seeking leave under this section must, before receiving the leave, exhaust all annual or vacation leave, personal leave, and sick leave, if applicable, that is available to the employee, unless the employer waives this requirement."

Can your employer tell coworkers about your domestic violence leave?: No. They have to keep it confidential.

Can your employer punish you for taking leave?: No. 

(a) An employer may not interfere with, restrain, or deny the exercise of or any attempt by an employee to exercise any right provided under this section.
(b) An employer may not discharge, demote, suspend, retaliate, or in any other manner discriminate against an employee for exercising his or her rights under this section.

What is your remedy?: You can file a civil suit for damages or equitable relief, or both, in circuit court. You can seek all wages and benefits that would have been due up to and including the date of the judgment had the act violating the law not occurred, but you can't claim wages or benefits for a period of leave granted without pay. You still have to mitigate damages by looking for another job or accepting reinstatement if offered.

So there. I said something good about Florida employment law. Happy? 

This law has been on the books since 2007, and there have been precious few pro-employee laws since then (or before). We can still do much better by looking to other states for some pro-employee laws that make sense.

Can I Fire An Employee If Their Ex Threatens The Boss?

I was asked this question by a friend asking on behalf of someone else and thought the answer might be useful here. 

Question: 
An employee has become involved with multiple abusive men, who then end up calling the office and harassing or verbally abusing other employees. The latest was a call where he threatened to beat up the boss. They want to know if they can fire her.
They’re in Texas, which doesn’t have a law protecting domestic violence victims from firing, but I wonder what the right way would be to handle this if they did.

And can they legally tell her that while they're sympathetic to the situation she’s in, they can’t put other employees and clients at risk, and that they can’t continue to employ her if people from her personal life continue to call her office and threaten people?

Boo to Texas for being behind the times. Many states have laws protecting domestic violence victims. In those states, the answer would be different. A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Are we surprised? Here is a brief summary of some state and local laws protecting domestic violence victims from employment discrimination: 

• California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence. Colorado provides up to 3 days of leave if the employer has 50 or more employees.
• Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims. 
• Delaware’s law makes it illegal to discriminate against domestic violence victims and requires employers to make reasonable accommodations such as schedule changes or changes in job duties.
• Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave. 
• Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations. 
• Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer 
• Indiana prohibits discrimination for either filing a petition for a protective order or for actions taken by the abuser. It also provides that employer and employee may mutually agree to accommodations. 
• Kansas law says employers can't discriminate against domestic violence victims who need time off. 
• Maine law grants reasonable protected domestic violence leave. 
• Massachusetts law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence. 
• New Mexico provides up to 14 days of protected leave. 
• New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims. 
• North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave. 
• North Dakota allows state employees up to 40 hours of sick leave for domestic violence victims and their family members. 
• New Jersey's law says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident. 
• Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.   
• Philadelphia provides leave depending on the size of the employer. 
• Rhode Island prohibits discrimination.   
• Washington DC has a sliding scale for leave depending on how large the employer is.
• Washington state provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination. 

Now, back to Texas (and this applies to most other states too). Some things to look into before even thinking about firing this employee are:

Subpoena: If she has been subpoenaed to testify in the court proceedings, Texas Labor Code § 52.051 prohibits termination of an employee for complying with a subpoena. Many states protect people from being terminated for testifying under subpoena, especially crime victims.

Sex discrimination: If a male crime victim was not terminated under similar circumstances, then firing the female for being a crime victim could be illegal sex discrimination. Particularly if a male domestic violence victim was not fired, she might have a case. But any male victim of a violent crime could be a valid comparator if they were being threatened, stalked or subjected to anything that could potentially land in the workplace.

Disability discrimination: Therefore, there is an argument that she is being terminated due to a disability or being regarded as disabled.

FMLA: If she is suffering from depression, anxiety, PTSD or another condition resulting from the domestic violence, she could be entitled to FMLA. Offering that might be an alternative to termination.

Other discrimination: If a member of a different race, age, national origin, or other protected category was the victim of a similar crime and was not fired, she could argue discrimination.

I would think another avenue, rather than termination, would be to assist the employee in getting an injunction. Plus, the boss who was threatened could also be entitled to an injunction against him. Wouldn’t it be better to try to help her by keeping him out of the workplace? Wouldn’t that send a better message to other domestic violence victims? It would be a terrible message to send to other domestic violence victims. It could even make them afraid to report the crime to the authorities if they think they will be fired for being a victim.

More States Pass Domestic Violence Victim Workplace Protection

Domestic violence victims have enough problems without also having to deal with coworkers stigmatizing them and possibly getting fired. The trend is for states to protect sexual violence from workplace discrimination.

Most recently, five states enacted paid sick leave laws that include requiring paid leave for domestic violence victims. Those states are Vermont, California, Connecticut, and Massachusetts and Oregon. These are overall paid sick leave laws that protect both domestic violence victims and employees who need time off to care for victims of domestic violence. The paid leave accrues depending on each state’s law.

I frequently raunch on Florida for being so anti-employee, but I have to give my home state props for being one of nineteen states that have laws protecting employees who become domestic violence victims. Here is a brief summary of the state and local laws protecting domestic violence victims from employment discrimination:

• Indiana prohibits discrimination for either filing a petition for a protective order or for actions taken by the abuser. It also provides that employer and employee may mutually agree to accommodations.
• Delaware’s law makes it illegal to discriminate against domestic violence victims and requires employers to make reasonable accommodations such as schedule changes or changes in job duties.
• North Dakota allows state employees up to 40 hours of sick leave for domestic violence victims and their family members.
• Massachusetts' law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence.
• New Jersey's law says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident.  
• California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence.
• Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave.
• Colorado provides up to 3 days of leave if the employer has 50 or more employees.
• Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims.
• Washington DC has a sliding scale for leave depending on how large the employer is.
• Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations.
• Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer
• Kansas law says employers can't discriminate against domestic violence victims who need time off.
• Maine law grants reasonable protected domestic violence leave.
• New Mexico provides up to 14 days of protected leave.
• New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims.
• North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave.
• Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.
• Rhode Island prohibits discrimination.
• Washington provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination.
• Philadelphia provides leave depending on the size of the employer.

A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Wouldn't it be good to have some uniform protections? Who the heck is against protecting domestic violence victims? Do we really think that getting beaten up should be grounds for termination? 

A pretty good summary of state laws up through September 2015 is here. It should also be noted that many states have laws protecting crime victims from being punished for missing time from work to testify in criminal proceedings.

Many states have laws protecting crime victims, allowing them time off from work to testify and/or recover. If the domestic violence causes a serious medical condition, then the employee may also be entitled to Family and Medical Leave if they qualify.

If you think domestic violence victims have enough problems without also having to worry about being fired, talk to your state legislators and members of Congress and ask them to pass more legal protections for this vulnerable group of employees.

Florida Democrats Take Another Swing At Pro-Employee Legislation (That Won't Pass)

Another legislative session coming up, some more pro-employee legislation that will not pass. But here’s what some Florida Democrats (okay, I didn’t check them all, but c’mon, what are the odds that any of the co-sponsors of any pro-employee laws are Republicans?) are trying to pass in 2016 to help Florida employees:

$15 minimum wage: SB 6 and HB 109 would raise Florida’s minimum wage to $15/hour

ERA: SCR 74 and HCR 8001 would ratify the Equal Rights Amendment. Better late than never.

Sexual Orientation: SB 120 and HB 45would add sexual orientation and gender identity to prohibited categories of discrimination in the workplace.

Social Media Privacy: SB 186 would prohibit employers from demanding your social media passwords.

Unemployment and Domestic Violence: SB 188 protects employees who leave or lose jobs due to domestic violence from being disqualified for unemployment benefits.

Paid Sick Leave: SB 294 and HB 205 would require state and local governments with at least 9 employees to provide paid sick leave to employees. Why only government employers? I'm really not sure that's what the sponsors meant to do, but that's what it says employers are.

Paid Family Leave: SB 384 and HB 603 would require employers to provide paid leave similar to FMLA for birth or adoption of a child and care in the first year, but it applies to employees who work at least 20 hours a week, applies to employers with at least 15 employees, and would permit up to 6 weeks of protected leave. Creates a rebuttable presumption that any demotion or discharge taken within 90 days against an employee who takes leave is a violation.

Ban the Box: SB 448 and HB 353 would prohibit employers from asking about criminal history in initial employment applications.

If you support any of these bills, start calling and writing your legislators now. Especially the Republicans. If any of these proposed laws get overwhelming support, they may just have a chance. My prediction: DOA.

States With Pro-Employee Laws: Domestic Violence Victim Workplace Protection

Or, States That Don't Suck For Employees Part V

Massachusetts was the latest state to enact a law requiring employers to give victims of domestic violence time off work without penalizing them. Since I frequently raunch on Florida for being so anti-employee, I decided to write today to give my home state props for being one of sixteen states that have laws protecting employees who become domestic violence victims.

• Massachusetts' law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence.
• New Jersey's law, passed last year, says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident.  
• California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence.
• Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave.
• Colorado provides up to 3 days of leave if the employer has 50 or more employees.
• Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims.
• Washington DC has a sliding scale for leave depending on how large the employer is.
• Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations.
• Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer
• Kansas law says employers can't discriminate against domestic violence victims who need time off.
• Maine law grants reasonable protected domestic violence leave.
• New Mexico provides up to 14 days of protected leave.
• New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims.
• North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave.
• Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.
• Rhode Island prohibits discrimination.
• Washington provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination.
• Philadelphia provides leave depending on the size of the employer.

A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Wouldn't it be good to have some uniform protections? Who the heck is against protecting domestic violence victims? Do we really think that getting beaten up should be grounds for termination? 

A pretty good summary of state laws up through June 2013 is here. It should also be noted that many states have laws protecting crime victims from being punished for missing time from work to testify in criminal proceedings.

Can My Employer Fire Me Because I Was a Domestic Violence Victim?

If you need time off for medical treatment or to seek an injunction against domestic violence, some state laws and city and county ordinances protect you, but most still don’t. Some states provide that employers must give you a leave of absence to deal with the effects of domestic violence. Other states have laws that protect crime victims if they need time off to go to court. A few states have laws saying you are entitled to unemployment if you have to leave your job due to domestic violence.

If you do have to testify and your state has little or no protection for you, then you might want to ask the prosecutor to subpoena you. Some states prohibit retaliation against witnesses who were subpoenaed to testify.

If you are injured and your employer is large enough, you might also want to seek Family and Medical Leave.

If male and female crime victims are treated differently at work, then you might have a sex discrimination case. For instance, if a male who was mugged is allowed time off, but a female domestic violence victim is not, then there may be a claim under Title VII or your state's sex discrimination laws.

Donna’s tips:

a. Domestic violence victims have to walk a fine line because of the huge numbers of people who will look down upon them and consider them weak. Be careful who you discuss your domestic violence situation with at work.

b. Don’t assume the law protects you from retaliation. Get legal advice if you’re unsure. The police may also be able to tell you whether you’re protected or who can advise you.

c. Don’t just blow off work. Make sure you let your supervisor know you’ll be out and for how long.

d. Don’t delay getting the help you need. No job is worth your life or safety, or the life/safety of your loved ones.