By Adam J. Ondo, Staff Member.
I. Introduction
Natasha Velez worked at a New York City Chipotle restaurant, preparing burritos and working the register.[1] On January 1, 2013, Natasha was beaten and choked by her then‑boyfriend. The assault left her with a broken left index finger that required a splint. On her first day back, she informed her manager that she had been assaulted in a domestic violence incident. She then explained to her manager that her doctors told her that she could not work again until January 28, 2013. She had been referred to a hand surgery clinic for a follow-up evaluation. Upon hearing this, her manager fired her for having “too many issues outside of work.”[2] Because Natasha was fired due to her status as a victim of domestic violence, she was able to sue Chipotle pursuant to the New York State Human Rights Law.[3]
Though Natasha and many other victims are able to seek relief through state courts, not all states have laws protecting domestic violence victims from termination based on their victim status. Texas is one of the states that has a complete lack of protection for domestic violence victims fired due to their abuse. This is especially unfortunate when one considers that there were 185,817 reported incidents of domestic violence in Texas in 2014, resulting in 201,051 victims.[4] Five percent of these incidents resulted in major injuries, including broken bones, loss of teeth, and severe lacerations.[5]
There are two primary types of statutes that states have enacted to protect domestic violence victims from termination. A majority of states provide protection from adverse action by employers against employees who are crime victims that need time off from work in order to attend court.[6] Fifteen states have more specific statutes that protect domestic violence victims as a class.[7] The broadest statutes allow domestic violence victims to take unpaid leave for court appearances, counseling, and moving out of a violent household without worrying about termination or demotion.[8]
Texas has neither type of statute. The only protection a crime victim has in Texas arises from a Texas Code of Criminal Procedure provision granting crime victims the right to have their employer notified by a state attorney of “the necessity of the victim’s cooperation and testimony in a proceeding that may necessitate the absence of the victim from work for good cause.”[9] This suggestion to treat your employee well is insufficient in cases of domestic violence, where potential loss of employment is a common factor in deciding to not report.[10] Texas should break the cycle by passing a law protecting domestic violence victims from termination or demotion based on their victim status.
II. Background
Domestic violence and employment security are invariably intertwined. Victims in states like Texas can be fired for missing work if they seek refuge at a shelter or become homeless after leaving their abuser.[11] The magnitude of the economic problems caused by domestic violence is best underscored by the following statistics compiled by the Center for Disease Control:
The value of lost productivity from employment [in 1995] is $727.8 million . . .; the value of lost productivity from household chores is $130.8 million. More than 13.5 million total days are lost from job and housework productivity . . . . Nearly three-quarters (71.6%) of lost productivity is due to physical assault . . . .[12]
When Illinois was amending its Victims’ Economic Security and Safety Act, the General Assembly took note of a 1998 report by the U.S. General Accounting Office based on three studies in which “between one-fourth and one-half of domestic violence victims . . . reported that [they] lost a job due, at least in part, to domestic violence.”[13] The federal government has taken action to alleviate certain aspects of this pervasive issue, but the extent of this federal action is woefully inadequate.
The Family and Medical Leave Act of 1993 (FMLA) assists many domestic violence victims by guaranteeing twelve workweeks of leave during any twelve-month period for employees who cannot work due to a serious health condition or who need to care for a qualifying relative suffering from a serious health condition.[14] The FMLA is insufficient, though, because it does not cover days missed because the victim attended a trial, sought a restraining order, or moved into a shelter.
On October 27, 2015, Congresswoman Lucille Royball-Allard (D-Cal.) introduced the Security and Financial Empowerment (SAFE) Act of 2015 in the United States House of Representatives.[15] The bill would require employers to provide employees who are victims of sexual, dating, or domestic violence with a minimum of thirty days of leave in a twelve-month period if the leave is necessary to facilitate temporary or permanent relocation, take legal action, or seek medical assistance. Proponents of domestic-violence-leave laws should not expect the bill to pass, however; this is the nineteenth year Congresswoman Royball-Allard has introduced the bill.[16] The past eighteen attempts to get the bill passed were to no avail. Texans should not be content with waiting for Congress, but should instead lobby for a state statute granting protections similar to those found in the SAFE Act and other states’ laws.[17]
III. Crafting a Texas Statute
Texas is an “at will” state, meaning that an employer can fire an employee without cause.[18] There are only two exceptions: (1) a public policy exception that prevents employers from firing employees for refusing to break a law; and (2) statutory exceptions, which are primarily state and federal anti-discrimination laws.[19] There was almost a third exception, but House Bill 1065, which was introduced in the Texas House of Representatives in 2013, died in committee.[20] This bill would have provided crime victims with leave from work to attend court proceedings.[21]
Texas needs its own SAFE Act, but the Texas Legislature would surely balk at the idea of adopting a statute as broad as New York State’s Human Rights Law. A Texas statute would have to provide more protections to employers.
First, the statute’s drafters would have to decide how to define “domestic violence victim.” It would be most logical to use the technique other states have employed. This technique entails selecting the applicable sexual, assaultive, or family offenses from the state penal code and then classifying any individual who has suffered an act that could constitute one of those offenses as a domestic violence victim.[22]
Second, the drafters would have to decide whether the statute would provide limited domestic abuse leave or blanket protection from discriminatory actions based on the employee’s status as a domestic violence victim. An anti-discrimination statute for domestic violence victims would be opposed by many Texas businesses as being overly broad, meaning it would not likely pass.[23] Instead, Texas should provide fourteen days of domestic abuse leave to domestic violence victims and punish employers who refuse to grant the leave or retaliate against an employee for using the leave.[24]
Third, the drafters would need to determine valid reasons for using the leave. The following should be included so that victims are provided with an adequate amount of protection: moving to a new residence, securing services from a domestic violence shelter or program, consulting with law enforcement or a member of the district attorney’s office, seeking a restraining order, testifying at a trial, obtaining psychological counseling, and receiving medical attention.[25]
Fourth, the drafters would need to ensure that employers were provided with ample notice of the employee’s decision to use domestic violence leave. The statute could require twenty-four hour notice of intent to use the leave if not taken during an emergency; if taken during an emergency, notice should be provided within twenty-four hours of the start of the emergency.[26]
Fifth, the drafters might consider allaying the fears of small businesses that may be worried about the deleterious effects a domestic-abuse-leave law may have on their ability to operate. The easy solution would be to include a provision exempting businesses with fewer than twenty-five employees from having to comply with the statute.[27] A less administratively efficient, though also less arbitrary solution would be to allow employers to claim an “undue hardship” defense under the right circumstances.
Finally, the drafters should include a confidentiality provision barring employers from disclosing the fact that an employee was involved in a domestic violence incident, or sought leave due to it, to unauthorized individuals.[28]
IV. Conclusion
Texas needs a law that serves as a bulwark to protect domestic violence victims from mistreatment at the hands of employers. Under current state law, an employer could make a domestic violence victim choose between leaving an abusive boyfriend and losing her job. But Texas’s lack of guaranteed leave in situations where a victim is seeking legal assistance from law enforcement or prosecutors is even more unacceptable because it allows employers to take actions that could deter victims from assisting in the incapacitation of dangerous offenders. Employers must not be allowed to endanger the lives of their employees or other individuals. Drafters of a Texas domestic-abuse-leave law should still include a few compromises for businesses in the text of the law, such as an “undue hardship” defense provision, if the law is to have any chance of passing. A domestic-abuse-leave law would help the tens of thousands of Texans who suffer abuse each year to escape and prosecute their abusers, so we can only hope that the Texas Legislature introduces a bill soon.
[1] Complaint at 1, Velez v. Chipotle Mexican Grill, Inc., No. 14 CV 2625 (S.D.N.Y. Apr. 14, 2014), 2014 WL 1418491.
[2] Id. at 2.
[3] N.Y. Exec. Law §§ 292(34), 296(1)(a) (McKinney, Westlaw through 2015 Legis.).
[4] Tex. Dep’t of Pub. Safety, 2014 Crime in Texas 35 (2014), http://www.txdps.state.tx.us/crimereports/14/citCh5.pdf.
[5] Id. at 37.
[6] Employment Rights for Victims of Domestic or Sexual Violence, Legal Momentum (Sept. 22, 2015), http://www.legalmomentum.org/resources/state-law-guide-employment-rights-victims-domestic-or-sexual-violence. Compare Utah Code Ann. § 78B-1-132 (West, Westlaw through 2015 1st Spec. Sess.) (preventing employers from depriving employees of employment for attending “a deposition or hearing in response to a subpoena”), with N.Y. Penal Law § 215.14 (McKinney, Westlaw through 2015 Legis.) (providing unpaid leave to crime victims in a broader set of circumstances, including meeting with the district attorney).
[7] Employment Rights for Victims of Domestic or Sexual Violence, supra note 6.
[8] See, e.g., N.Y. Exec. § 296(1)(a).
[9] Tex. Code. Crim. Proc. Ann. art. 56.02(a)(10) (West, Westlaw through 84th Legis. Sess.).
[10] See Deborah A. Widiss, Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy, 35 Fla. St. U. L. Rev. 669, 687, 700 (2008); see also Corp. All. to End Partner Violence, Nat’l Ctr. on Domestic & Sexual Violence, National Benchmark Telephone Survey on Domestic Violence in the Workplace (2005), http://www.ncdsv.org/images/CAEPVSurvey.WorkPlace.pdf.
[11] See U.S. Conference of Mayors, Hunger and Homelessness Survey 64, 96 (Dec. 15, 2005), http://www.usmayors.org/hungersurvey/2005/HH2005FINAL.pdf (reporting that over half of the 22 major-city mayors surveyed in 2005 identified domestic violence as a primary cause of homelessness).
[12] Dep’t of Health & Human Servs., Ctrs. for Disease Control & Prevention, Costs of Intimate Partner Violence Against Women in the United States (March 2003), http://www.cdc.gov/violenceprevention/pdf/IPVBook-a.pdf.
[13] 820 Ill. Comp. Stat. Ann. 180/5(14) (West, Westlaw through 2015 Pub. Act 99-495).
[14] 29 U.S.C. § 2612(a)(1) (2005 & Supp. 2014); cf. Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2013) (declaring that states have sovereign immunity from suits for damages under the FMLA).
[15] Security and Financial Empowerment Act of 2015, H.R. 3841, 114th Cong. (2015).
[16] Helen Machado, Congresswoman Lucille Roybal-Allard (CA-34) Introduces the SAFE Act, Congresswoman Lucille Roybal-Allard (Feb. 28, 2009), http://roybal-allard.house.gov/news/documentsingle.aspx?DocumentID=126264.
[17] Compare N.M. Stat. Ann. § 50-4A-3 (West, Westlaw through 1st Spec. Legis. Sess., 2015) (providing a state law supplementing the FMLA by guaranteeing fourteen days annual leave to domestic abuse victims for the limited purpose of seeking judicial relief or attending court proceedings), with N.Y. Exec. Law §§ 292(34), 296(1)(a) (McKinney, Westlaw through 2015 Legis.) (classifying domestic violence victims as a class for employment discrimination purposes).
[18] E. Line & R. R. R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888).
[19] Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). See generally Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048 (5th Cir. 1998) (discussing several statutory exceptions enacted by the Texas Legislature and federal government).
[20] HB 1065: History, Tex. Legislature Online (Feb. 26, 2013), http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=83R&Bill=HB1065
[21] Tex. H.B. 1065, 83d Leg., R.S. (2013).
[22] Tex. Penal Code Ann. §§ 21.01–.16, 22.01–.12, 25.01–.11 (2011); see N.Y. Exec. Law § 292(34).
[23] See N.Y. Exec. § 296(1)(a). See generally Reynolds v. Fraser, 781 N.Y.S.2d 885 (N.Y. Sup. Ct. 2004) (elucidating the benefits of placing domestic violence victims under the umbrella of New York’s anti-discrimination statute).
[24] See, e.g., N.M. Stat. Ann. § 50-4A-3 (West, Westlaw through 1st Spec. Legis. Sess., 2015).
[25] See, e.g., Cal. Lab. Code § 230.1(a) (West, Westlaw through Ch. 1 of 2015–16 2d Ex. Sess.).
[26] See, e.g., N.M. Stat. § 50-4A-4.
[27] See, e.g., Cal. Lab. § 230.1(a).
[28] See, e.g., N.M. Stat § 50-4A-6.