Have you reviewed your domestic violence policy?

Domestic violence is a serious problem for society and since Human Resources interacts with all aspects of society, addressing domestic violence in the workplace must be an aspect of our roles.  The United States Department of Justice reports:

“According to Amnesty International  “violence against women is one of the most pervasive human rights abuses. It is also one of the most hidden. It takes place in intimate relationships, within the family and at the hands of strangers and it affects women in every country in the world…. Indigenous peoples in the USA face deeply entrenched marginalization – the result of a long history of systemic and pervasive abuse and persecution. Sexual violence against Indigenous women today is informed and conditioned by this legacy of widespread and egregious human rights abuses.”

American Indians are 2.5 times more likely to experience sexual assault crimes compared to all other races, and one in three Indian women reports having been raped during her lifetime.”

In a recent article from Corporate Counsel, the author estimated that domestic violence costs businesses $1.8 billion a year in lost work days.  More importantly than this measure of economic impact, the impact on the mental and physical health of the victims far exceeds its impact on the profit and loss statement.  It is estimated that 70 percent of employers do not have a formal policy addressing domestic violence yet 1 in 4 employers report a threat due to domestic violence every year.  It is time that 100 percent of employers recognize their responsibilities in connection with domestic violence, and recognition of the problem is the first step.  Quickly following this first step of recognition, the second step must be action.  Employers need to send a clear message that domestic violence (or any violence) will not be tolerated and one of the ways employers communicate is through policy.

Here is a form policy based in large part on a policy recommended by Employers Against Domestic Violence:

DOMESTIC VIOLENCE POLICY

In furtherance of its commitment to provide a workplace where acts of domestic violence affecting the workplace are neither tolerated nor excused, the ABC Tribe is implementing this policy, which uses early intervention and awareness strategies, as well as disciplinary measures when necessary, to prevent or minimize the occurrence and effects of such acts.

SCOPE

This policy applies to all employees and on-site vendors, consultants or independent contractors (collectively, for purposes of this policy only “Employee”)

DEFINITION OF ACTS OF DOMESTIC VIOLENCE THAT AFFECT THE WORKPLACE

A. Acts of Domestic Violence Affecting the Workplace

Acts of Domestic Violence Affecting the Workplace includes violent acts (whether occurring within or outside of the workplace) occurring between family or household members, or between persons involved in a substantive dating relationship, and that the ABC Tribe, in its sole discretion and judgment, determines affects the ABC Tribe’s workplace. Such conduct includes, but is not necessarily limited to, the following:

any act or threat of an act of physical aggression that causes physical harm to any other person (regardless of gender)
any statement or action that reasonably could be perceived as demonstrating an intent to cause physical or serious emotional harm to another (regardless of gender)
intimidation or verbal harassment
disorderly conduct
display or discussion of weapons
threats of suicide
homicide, assault and battery, or rape
stalking
enlisting, coercing or asking others to do any of the above actions or aiding or abetting others in doing any of the above actions.

The ABC Tribe reserves the right in its sole discretion to determine when particular conduct constitutes an Act of Domestic Violence Affecting the Workplace for the purposes of this policy.

POLICY

A. The ABC Tribe considers the perpetration of Acts of Domestic Violence Affecting the Workplace by an Employee to constitute, at a minimum, intolerable, unacceptable conduct and a material breach of any duty such person owes to the ABC Tribe. As such, the ABC Tribe will take seriously any reports of such acts as defined in this policy. This policy, however, does not create any legal duty or obligation on the part of the ABC Tribe to respond to, investigate or address any such allegations in any particular manner.

B. To the extent permitted by applicable law, the ABC Tribe requires any Employee who has been convicted of having violated a temporary restraining order issued pursuant to applicable law within the past five years, where any of the facts forming the basis of such violation arose from Acts of Domestic Violence, or who has been convicted of a felony arising from Acts of Domestic Violence, to report such violation or conviction to the ABC Tribe by contacting the Director of Human Resources.

C. The ABC Tribe encourages any person who perceives that an Employee is perpetrating or has perpetrated Acts of Domestic Violence Affecting the Workplace to report promptly such conduct to the Director of Human Resources so that the ABC Tribe may review the incident. The  ABC Tribe will not tolerate any retaliation against anyone who in good faith reports an incident of an Act of Domestic Violence Affecting the Workplace or who cooperates in the review thereof. The ABC Tribe will use reasonable efforts to protect the confidentiality of such individuals reporting or cooperating, but it cannot guarantee confidentiality in all cases.

D. Upon learning of an incident of an Act of Domestic Violence Affecting the Workplace, the ABC Tribe may review the reported conduct, which may include an interview with the alleged perpetrator.

Nothing herein, however, is to be construed to require the ABC Tribe to act in any particular manner. The ABC Tribe reserves the right to respond (or not to respond) to any actual or perceived Acts of Domestic Violence Affecting the Workplace, in the manner in which it sees fit given the particular facts and circumstances.

E. If the ABC Tribe concludes that an Employee has violated this policy by perpetrating Acts of Domestic Violence Affecting the Workplace, the ABC Tribe may respond by:

Referring the Employee to, or requiring the employee to seek help with, the Employee Assistance Program or a certified intervention program; and/or taking any other action that the     ABC Tribe determines may be appropriate, including placing the Employee on administrative leave without pay or taking other disciplinary measures, up to and including dismissal.

The ABC Tribe, however, retains the sole discretion to determine the level of discipline (if any) imposed.

F. The ABC Tribe encourages any Employee who has perpetrated Acts of Domestic Violence Affecting the Workplace to seek help. Upon request, the ABC Tribe may refer any such Employee to the Employee Assistance Program and/or to a certified intervention program. One consideration for the ABC Tribe in determining potential disciplinary measures is whether the Employee recognizes the problem and seeks help from an appropriate program on his/her own accord.

G. The ABC Tribe highly discourages conduct wherein an Employee knowingly, willfully or in bad faith falsely accuses another person of committing Acts of Domestic Violence Affecting the Workplace, or makes any other false report. Such conduct may cause the ABC Tribe to take disciplinary measures against such Employee, up to and including dismissal.

H. The ABC Tribe will use reasonable efforts to protect the confidentiality of any Employee whom the ABC Tribe knows to be involved in any way with incidents of Acts of Domestic Violence Affecting the Workplace, but the ABC Tribe cannot guarantee confidentiality in all cases.

ADDITIONAL RESOURCES OUTSIDE THE ABC TRIBE

Employee Assistance Program

[insert contact information] [list other hotlines/resources, including certified batterers treatment programs, as appropriate]

__________________________________________________________________________________

Recommendation:  Recognize that domestic violence is an issue which should be addressed.  Address the issue by promulgating and enforcing the policy in a serious and effective manner.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.