Your Employee Is a Victim of Domestic Violence---What Should an Employer Do?New Zealand parliament recently passed a law granting employees 10 days of extra paid leave each year for victims of domestic violence to change their living situations and not lose their jobs. According to some U.S. statistics, one in four women and one in nine men are victims of intimate partner violence every year. This likely means that someone in your workforce has either suffered domestic violence or has a family member who has. It goes without saying that this type of crime can cause workplace production problems—but what is an employer required to do if an employee is a victim?

FMLA

Under the FMLA, if an employee suffers a physical injury as a result of intimate partner violence, he or she is entitled, as with any other medical condition, to unpaid leave. This would also include intermittent leave. The employee may still be required to provide the required medical certification and would have to meet the eligibility qualifications (i.e., 12 months of work, 1250 hours in the last 12 months, 50 employees at the worksite or within 75 miles).

State Laws

Several jurisdictions also have laws protecting victims of domestic violence:

  • In Florida, employees who work for an employer with 50 or more employees can request and take up to three days of leave per year if the employee or family member of the employee is a victim of domestic violence. The leave may be unpaid, and the employer is required to keep all information about the leave confidential.
  • In North Carolina, an employee is protected from retaliation if the employee takes “reasonable time off” to obtain a protective order or some other sort of relief from domestic violence.
  • In the District of Columbia, employees meeting certain criteria for domestic violence situations may even be entitled to paid leave.

Other states have specific crime victim job protection laws that may cover victims of domestic violence. Mississippi, Arkansas and Alabama have statutes protecting employees’ jobs if they need time off because they are a victim of a crime and have to respond to a subpoena or prepare for court proceedings. Tennessee has a statute protecting state agency employees against adverse employment actions if the employee is helping to prosecute a perpetrator of an offense against that employee.

Company Policies

Many employers have an array of policies that could help employees who disclose a domestic violence issue. You should always check to see what is available, and make sure your employees are aware of their options.

  • Leave – Be sure your employees know that they can take whatever leave applies. It could be characterized as personal, paid time off, vacation, sick, court, or something else.
  • Donated Leave – If you have a way for other employees to donate paid leave, an employee who is the victim of domestic violence may want to ask for consideration.
  • Employee Assistance Programs – Your EAP may provide legal assistance or counseling.
  • Security in the Workplace – Find out whether you should take steps to ensure that the alleged abuser does not cause an issue at work. This could include alerting security or the local police. Some victims may ask if they can bring a gun to work or leave one in their car. While you can follow your company’s policies (and state laws) regarding weapons in the workplace, be sure to fully consider the security of the victim and your other employees.

Common Sense

Since domestic violence is so prevalent in our society, employers should be prepared to deal with the fallout that comes with this unfortunate situation. Beyond physical injuries, there may be post-traumatic stress and mental health issues that arise due to a violent home life. Although you may not be required by law to provide paid or unpaid leave, employers should be mindful that empathy and patience may not only provide some peace to a troubled employee, but also boost the morale and loyalty of the workforce.

When Traveling Employees Are Due Compensation (Or Not)

When Traveling Employees Are Due Compensation (Or Not) Welcome to Part 2 of our series on the Department of Labor’s three new opinion letters. Last week, we looked at the new opinion letter on FMLA intermittent breaks. If you missed that post, you can catch up here. Next up is the travel time letter.

The Facts

A crane repair company asked the DOL to clarify when it must pay its technicians for their travel time and asked for guidance on three scenarios. The letter examines all three scenarios and explains why the company must pay the technicians for that time (or not).

Scenario 1

An hourly technician travels on a Sunday by plane to an out-of-town training class and attends the class from Monday to Friday. The technician then flies back home on Friday or, if a Friday flight is unavailable, on Saturday.

The DOL explains that travel time is compensable work time when it cuts across the employee’s regular workday. Travel on public transportation outside of regular work hours, however, does not constitute worktime and thus does not require compensation. (The same goes for an employee who turns down a plane ticket and opts to drive instead.)

The letter also addresses what to do if the employee does not have a “recognized workday.” If the employee has an inconsistent schedule, the employer should try to ascertain the employee’s average work hours to determine if and when travel time must be compensated. The DOL recommends reviewing employee time records for average start and end times and paying the employee for travel time within that window.

Lastly, the DOL clarifies that the traveling employee is not due compensation for his commute between the training site and the hotel in which he stays during his trip. As far as the FLSA is concerned, this is no different from an employee commuting between work and home during a regular day.

Scenarios 2 & 3

In the second and third scenarios, an hourly technician travels in a company-owned vehicle from home either to the office to pick up an itinerary (Scenario 2) or to multiple customer locations (Scenario 3), after which he travels to and from other customer locations throughout the day. Depending on where the technician lives, the home-to-office commute can range from 15 minutes to one hour or more.

The DOL notes that the same principles apply to Scenarios 2 & 3 that applied in Scenario 1. A technician’s travel time from his home to his first stop of the day, whether it’s the office or a customer location, is generally not compensable other than in extraordinary circumstances (i.e., a customer site several hours away). Once the technician arrives at the first stop, however, he or she is on the clock and must be compensated for travel between stops throughout the workday.

If you have employees who travel during the workday or are sending an employee out of town for business and have questions, ask your lawyer for clarification on the front end about whether they are due compensation. Tune in next week for the third and final opinion letter.

FMLA-Covered 15-Minute Rest Breaks Are Not Compensable

Last July, we posted on the U.S. Department of Labor’s announcement that it was reviving its practice of publishing opinion letters as guidance on wage and hour issues, which the Obama Administration halted in 2010. After leaving us all on pins and needles for months, the DOL has finally issued three new opinion letters. The letters address the following topics (drum roll, please…): 15-minute rest breaks for serious health conditions; employee travel time; and lump-sum payments to employees. Below is a summary of the 15-minute break letter; we will post separately on the other two topics.

The Scenario

Reunited and It Feels So Good—The DOL’s Opinion Letters Are Back (Part 1 of 3)Letter FLSA2018-19 explains that due to a serious health condition, a non-exempt employee can take eight 15-minute rest breaks per workday as intermittent leave under the Family and Medical Leave Act. The employee works an eight-hour shift but, due to the breaks, is only performing six hours of work. The employer wants to know whether these breaks must be compensated under the Fair Labor Standards Act.

The Guidance

The letter recognizes that a rest break up to 20 minutes in length is ordinarily compensable under the FLSA because it primarily benefits the employer. In certain circumstances, however, courts have held that frequent accommodation breaks primarily benefit the employee and do not require compensation. With that in mind, the DOL opines that the employee is not due compensation for his or her rest breaks.

Lastly, the letter emphasizes that employees who take FMLA-protected breaks must also receive as many compensable rest breaks as their coworkers. So, if the employee’s coworkers receive two paid 15-minute breaks during an eight-hour shift, the employee is entitled to 10 breaks total, the first two paid and the remainder unpaid.

Takeaways

This opinion letter is an important reminder of the intersections between the various employment statutes. Depending on the employee’s serious health condition, issues under the Americans with Disabilities Act and the applicable state workers’ compensation statute could also come into play. Call your lawyer if you think you need help navigating your obligations under one statute in a way that won’t run afoul of another. And don’t forget that we can now ask DOL for an opinion letter.

Read part 2 and part 3.