Battered workers press for rights to time off

The National Law Journal updates readers about Adriana Becerril, who has alleged perpetration of domestic violence by her ex-husband the night before she joined a new job. She is being represented by Tuckner, Sipser, Weinstock & Sipser, LLP. The article follows:

Battered workers press for rights to time off: States are passing laws mandating leave; more liability for employers. Tresa Baldas / Staff reporter October 8, 2007

A battered workers’ rights movement is gaining ground in the workplace, exposing employers to more liability and mandating that they do a better job to accommodate domestic abuse victims.

Lawsuits over failing to give victims time off to heal, or firing them for missing work due to domestic violence, are popping up in courts, along with a growing legislative trend mandating that employers provide leave to victims who are trying to get their lives together.

This year, Florida and Oregon became the seventh and eighth states to pass laws mandating that employers provide leave to domestic abuse victims, and keep their jobs open. California and Maine were the first to do so in 1999. Since then, six states and New York City have followed suit.

On the litigation front, a New York woman is suing a daycare center for firing her after she sought time off to recover from an assault. She is using a city law that says employers must reasonably accommodate victims of domestic abuse. Becerril v. Graham Windham, No. 15169/07 (Bronx Co., N.Y., Sup. Ct.).

“These laws are certainly a step in the right direction,” said Jack Tuckner of New York’s Tuckner, Sipser, Weinstock & Sipser,the plaintiff’s lawyer in the daycare case who believes companies are not doing enough to help domestic violence victims.

Trouble in the Bronx

Tuckner is representing Adriana Becerril, who allegedly was beaten by her ex-husband the night before she was to start her new job as director of a preschool in the Bronx. She was hospitalized after having a flower pot thrown in her face, he said, so she requested four days off to convalesce.

“And that’s when they said, ‘Don’t bother,’ Tuckner said, noting that the woman was fired. “Here one of their own needed some compassion and they saw fit to just say, ‘Don’t let the door hit your butt on the way out.’ ”

Michael Frankel of Jackson Lewis’ White Plains, N.J., office, who is representing the daycare agency in the lawsuit, was unavailable for comment. The company declined comment.

Meanwhile, management-side attorneys defended employers and their commitment to helping victims of domestic abuse.

“The employers that we represent are very concerned with the well-being of their employees. Most of them are very sympathetic to people in these situations,” said Mark E. Zelek, managing partner of the Miami office of Morgan Lewis. “A lot of the employers we represent already have personal leave and sick leave and vacation leave in place. I’m not sure an additional law was necessary.”

Zelek is referring to Florida’s new domestic leave law, which took effect in July and applies to companies with 50 or more employees. It requires that employees be allowed three days off to care for anyone in their household who is a victim of domestic abuse — whether it is the employee, a child, a relative or a friend. Whether leave is paid or not has been left to the employer’s discretion. The law also prohibits discriminating or retaliating against employees for exercising their rights.

New protected class?

Zelek said the biggest concern for employers is that the measure creates a new protected class. He said the new law exposes employers to liability, such as lost wages, benefits and legal fees. And if a worker is fired and becomes re-employed in a job with lower pay or with fewer benefits, the prior employer can also be held liable for ongoing economic losses, he added.

Zelek noted, however, that employers can request that employees exhaust all their other leave before giving them the mandatory three days.

“A lot of employers in Florida are not aware of the law,” Zelek said. “We’re advising Florida clients that they should take account of this in their handbooks and in their policies.”

In recent years, the courts have issued several opinions on the rights of domestic abuse victims in the workplace.

In Iowa, for example, a new law was established last year when a federal court ruled that an employee had the right to sue her employer for firing her the day after she obtained a protective order against her abusive boyfriend. The woman claimed she was retaliated against for obtaining the order. The case has been resolved. Greer v. Beck’s Pub & Grille, No. C03-2070 LRR (N.D. Iowa).

But a federal court in Ohio last year ruled that an employer did not have a duty to keep a job open for a woman who had to transfer to a facility in a different state to get away from an abusive partner. The court ruled that the woman was an at-will employee. Melott v. ACC Operations Inc., No. 2:05-CV-063 (S.D. Ohio).