Tag Archives: Violence and Abuse

New Jersey Enacts New Domestic Violence and Sexual Assault Leave Law Effective October 1, 2013

Contributed by Sara Zorich

On July 17, 2013, Chris Christie, Governor of New Jersey, signed into law the “New Jersey Security and Financial Empowerment Act” (“NJ SAFE Act”) to assist victims of domestic violence and sexual assault.  The NJ SAFE Act is applicable to private employers in New Jersey that have 25 or more employees and is effective as of October 1, 2013.  Pursuant to the Act, employers must display a conspicuous notice of employees’ rights and obligations under the Act, in a form to be provided by the Department of Labor and Workforce Development, and to use “other appropriate means to keep its employees informed.”  No notice is yet available from the Department of Labor and Workforce Development.

Eligible employees (defined by the Act as those who have been employed for at least 12 months and have at least 1,000 base hours during the 12-month period immediately preceding the leave) in New Jersey are entitled to up to 20 days of unpaid leave, as needed, within one year of the incident, if they or their spouse, parent, child, domestic partner or civil union partner are a victim of domestic violence or sexual assault.  The leave must be taken related to the domestic violence or sexual assault for any one of the following purposes: (1) seeking medical attention for, or recovering from, physical or psychological injuries; (2) obtaining services from a victim organization; (3) obtaining psychological or other counseling; (4) participating in safety planning, relocation, or taking other actions to increase safety; (5) seeking legal assistance or remedies to ensure health and safety; or (6) attending, participating in or preparing for a criminal or civil court proceeding relating to the incident.

If the leave is foreseeable, employees must provide employers with as much written notice as is reasonable and practical of the need for leave under NJ SAFE Act.  Employers may require or employees may choose to exhaust accrued paid leave (i.e. vacation, PTO, sick time, etc.) during their leave provided by NJ SAFE Act before using unpaid time. 

Employers may require documentation to support the leave for which any of the following are sufficient: (1) restraining order or other documentation of relief issued by the court; (2) letter from the prosecutor; (3) documentation of offender’s conviction; (4) medical documentation of incident; (5) certification from a certified Domestic Violence Specialist, director of designated domestic violence agency or Rape Crisis Center or (6) other documentation by a social worker, clergy, shelter worker or other professional assisting with the incident.  All information provided must be kept confidential by the employer and employers may not retaliate or discriminate against an employee for taking leave under the Act.

What Do You Do When The Schoolyard Bully Is Now Your Employee?

Contributed by Allison Chaplick

Just because you employ adults, does not mean that your employees will always act like adults.  And, no, I am not talking about your employees who walk around in skinny jeans, wool hats (even though it is the dead of summer), tattoos and colorful hair.  I’m talking about the bullies. 

Bullies can bring a serious threat to the workplace.  First, no one likes a bully.  Second, employees who are victims of bullying are not shy to file a lawsuit against their employer because of the bullying.  In fact, recently a woman won more than $1 million dollars in a settlement against her former employer because of bullying. Potential common law causes of action for allowing bullying to take place at work could include intentional (or negligent) infliction of emotional distress, and negligent hiring or negligent retention.  Unlike claims filed under Title VII for discrimination and harassment, there is no cap on what an employee can recover from the employer. 

Just like schools, employers should have a zero tolerance policy that prohibits bullying.  Chances are, you already do, you just call it something else.  First, take a look at your employee handbook, specifically the Anti-Discrimination/Harassment policy where you prohibit “name-calling, letters, gestures, ethnic slurs, racial epithets, and other conduct” that is aimed at a particular employee.  Now, look at your Codes of Conduct policy.  Do you prohibit “fighting or using obscene, abusive, or threatening language or gestures”?  How about advising your employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace.”  Combined, these policies should be your anti-bullying provisions, and you should enforce them just like any other policy: consistently. 

So, what do you do when a victim complains to you about bullying?  Just as if you would investigate any complaint of unlawful discrimination or harassment, you should take all complaints and incidents of bullying seriously, separate the parties if necessary, and start investigating and documenting.  If necessary, take prompt remedial action against the bully by issuing a written warning, suspension or terminating that bully!

Horseplay In The Workforce Ain’t What It Used To Be And It Could End Up Costing You Big Bucks!

Contributed by Heather Bailey

A Louisiana jury was correct when it found that a survey crew instrument man at an engineering firm was sexually harassed by his supervisor’s boss who happened to be a male as well.  Cherry v. Shaw Coastal, Inc., 5th Cir., No. 11-30403, 1/19/12.  The harasser started off by brushing the employee’s hair, then he would ask the employee to take his shirt off and to wear revealing clothing.  The behavior escalated to inappropriate sexual text messages, repeated touching of the body and hair, and an invitation to sleep over and wear his underwear.  There was one occasion where the harasser touched the employee on the buttocks.  During this time, the employee repeatedly told the manager that he was uncomfortable and that the manager should keep his comments to himself.  

The employee’s supervisor knew his boss was acting inappropriately and complained twice to two different managers who were overseeing the project they were all working on together.  Nothing was done and the managers never informed human resources of the complaints.  After the third compliant when the employee finally complained to the same management team, the manager questioned that the harasser’s conduct was probably just “horsing around.”  After yet another complaint, management finally removed the employees from working on the same crew.  However, the harasser was still able to make the employee feel uncomfortable so he escalated his complaint.  Finally, management informed human resources, but not before questioning the conduct was just “horsing around” again.

Human resources conducted an investigation yet concluded the issue was one word against the other and took no further action.  Again, the company took no further action when the employee complained the harasser was then retaliating against him for complaining.  The employee then resigned because the company failed to take any action and he could no longer take the harasser’s treatment.

The court said the jury was right that there was same-sex harassment here based upon the manager’s vulgar sexual text messages which propositioned the employee, an offer to stay at his house and wear his underwear, and the repeated offensive physical touching and caressing which included a single instance on the buttock.  The court said all of this conduct was “severe and pervasive,” which is a test for proving sexual harassment.  

The lesson learned here is that the company was liable due to its failure to take prompt remedial action. It had a policy that required management to report any complaint to human resources, but management didn’t follow that policy here and even suggested that the inappropriate conduct was just horseplay.  When management finally followed the policy, human resources – despite having documented proof and a superior as an eye witness — did nothing. 

Spring Cleaning Tips

  • Update the company’s Anti-Harassment and Discrimination Policies, and if you don’t have one to update, create one immediately!
  • Train all employees on the do’s and don’t’s of sexual harassment and discrimination, including management on what to do when an employee complains or when management sees inappropriate conduct taking place. 
  • Review the company’s complaint and investigation procedures to ensure complaints are taken seriously and investigations are conducted effectively with a focus of remedial action when necessary.

We recommend you contact your employment counsel to ensure your policies and practices are tuned up.