Should Employers Mandate Disclosure of Domestic Violence Restraining Orders?
One of the questions I am frequently asked when helping employers craft domestic violence policy for their workplace, is whether they should mandate the disclosure of interpersonal restraining orders involving their employees. Every company must decide for themselves what their policy will contain and I have seen many different approaches to the issue, but when making this decision there are a few factors that should always be considered. Because I am not an attorney and every situation, company, and case is different, this piece is not meant to advise any employer on their particular policy, but rather to explore the various aspects of this topic.
Overview
To begin with, it is important to understand the mechanics of domestic violence restraining orders (also called protective orders or injunctions) and how they may impact the workplace. Laws vary by state, but in most cases, an ex parte order can be issued if the "petitioner" requesting the order has been harmed or put in fear of harm by a current or former intimate partner or family member (the "respondent" on whom the order is imposed). In most states, domestic violence restraining orders are first issued on a temporary basis pending a hearing in which a judge decides if there is merit to the request, and either dismisses the order or extends it for a stated period of time. Orders are not in effect until formally served on the respondent but are in effect afterward while awaiting a permanency hearing. Therefore, it is helpful for employers to understand the current status of any order they are made aware of. Domestic violence restraining orders may include prohibitions against communication or visits to the petitioner's workplace, both by the respondent and any third parties. Such orders only apply to the conduct of the respondent, not the petitioner, but employers may need to provide workplace accommodations in order to follow the order's specific parameters, particularly if the parties are co-workers. Employers are generally not required to enforce a protection order, but there may be both safety and liability concerns if they fail to respect its provisions or offer the necessary accommodations.
When Your Employee is the Petitioner
The decision to obtain a restraining order in a domestic violence situation has both pros and cons, and while an employer can ask if their employee has considered requesting one, they should never demand (or even recommend) that such a step be taken, due to safety risks it may present to the victim. Some employers choose to mandate disclosure (and copies) of all active restraining orders because this will allow them to abide by the order, provide support, and implement accommodations that increase the affected employee's safety, as well as that of the workplace overall. Others may decide to require disclosure only when the workplace is specifically named or impacted, but in most cases, it will likely apply anyway because a restraining order protects the petitioner's person regardless of where they are, and it is well known that domestic violence threat can pose a risk to the entire workplace.
On the other hand, some employers choose to omit the issue in their policy and only request disclosure and copies if an employee voluntarily seeks support. Such decisions may be driven out of respect for employee privacy, and a belief against forcing domestic violence victims to reveal a situation that may not directly affect or endanger their workplace. Although many states have laws protecting victims of domestic violence from job discrimination or termination, they may still fear retaliation for disclosing abuse. Therefore, regardless of whether your policy contains restraining order provisions, it may be important to include assurances that victims will not be disciplined or fired for simply telling the employer about their experience. When it is made clear that their organization will support and assist them, victims of interpersonal violence are more likely to come forward, providing information that can enhance workplace safety overall. Impacted employees may also find it beneficial to disclose a restraining order because it can help their employer to understand why they might sometimes be distracted or absent due to the abuse and the court attendance a restraining order requires. If you are considering including petitioner disclosure mandates in your policy, best practices suggest adding language around the necessity of providing copies, assurances of need-to-know confidentiality, and the employer's commitment to helping victims of domestic abuse.
When Your Employee is the Respondent
An employer will not automatically be notified by the court if a restraining order is issued against their worker, and it may not even show up on a background check unless the employee has security clearance or carries a weapon. Therefore, awareness may be difficult if the respondent isn't forthcoming, but there are several reasons why an employer might want to mandate disclosure of this information. Depending on a respondent's job, the restraining order may require modifications to their role, responsibilities, schedule, or physical location within the workplace, particularly if the petitioner is a co-worker. Respondents may be disciplined, terminated, reassigned, or transferred as the result of an order, but it's existence alone does not necessarily mean that a crime has been committed, so employers should not rush to judgement without knowing all the facts. Knowledge of an employee's respondent status is also important because employers can be held responsible for the negligent hiring, supervision, or retention of an employee who commits an act of domestic violence using company time, equipment, authority, or resources. If an employee were to violate a protection order while in a working capacity, the employer could potentially be found liable, so knowing about its existence can help you get ahead of the situation by initiating a conversation about company policies and expectations.
Additionally, while some might argue that an employee's offsite conduct isn't the employer's business, I think most employers would agree that in today's climate of increased workplace attacks, it is pertinent to security to know if someone working for you has been found by a court to present a risk of violence. This awareness may be important to preventing incidents of "hybrid violence" in which a domestic abuse situation combines with a pre-existing workplace grievance, resulting in harm to both a primary victim and innocent co-workers.
In conclusion, employers developing a workplace violence policy should carefully consider whether to include provisions regarding the disclosure of restraining orders from involved parties. I recommend seeking advice from both legal counsel and a workplace domestic violence consultant in order to determine the best course of action for your organization.
If you are interested in learning more about assessing and managing domestic violence in the workplace, please contact Presage Consulting and Training, LLC at info@presagetraining.com
