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Protecting jobs from protective orders

July 29, 2015

A little-noticed bill signed into law May 5 provides new protections in the workplace for victims trying to untangle themselves from domestic violence situations. However, the 16 lines being added to the Indiana Code could also limit an employer’s options for creating a safe working environment.

House Enrolled Act 1159 prohibits employers in Indiana from firing an employee either for filing a petition for a protective order or for actions of the employee’s abuser. Prior to this law, workers taking out protective orders could lose their jobs and have little recourse against their employers.

blomquist-kerry-mug Blomquist

Proponents say the new law will prevent domestic violence victims from being revictimized and help provide the financial stability they need to leave their abusers. As Kerry Hyatt Blomquist, legal counsel for the Indiana Coalition Against Domestic Violence, explained, people in abusive situations suffer a profound impact when they lose their paychecks because they often have no other means to support themselves and many will return to the abusive situation for economic survival.

Blomquist described Indiana’s new law as a “huge step forward” and “good public policy.”

pettygrove-joe-mug Pettygrove

Employment attorney Joe Pettygrove said the goal of the new statute is laudable, but he does not think it will accomplish what it is attempting to do.

In domestic violence situations, the victim is a magnet for the abuser and the best way for an employer to protect the victim’s co-workers is to remove the magnet from the workplace, said Pettygrove, a partner at Faegre Baker Daniels. But the second provision in the law requires the employer to get the consent of the victim before changing that employee’s shift or work location. To Pettygrove, this language appears to take away the control employers rightly have over their offices and factory floors.

The employer is a non-party in the domestic violence situation, Pettygrove said, and should only be shouldering minimal risk. Instead, he continued, this law has shifted the financial, emotional and physical safety risks to the employer.

Becoming law

The new law came into existence in the Statehouse during the closing days of the Indiana General Assembly’s 2015 session. The original House Bill 1159, introduced by Rep. Christopher Judy, R-Fort Wayne, gave preference to veterans in hiring, promotion and retention. A duplicate bill, Senate Bill 298, moved through the Statehouse and passed both chambers by the end of April.

So, in conference committee, the veterans’ employment policy language was stripped from HB 1159 and the language about protective orders was inserted. The new content came from House Bill 1342, a comprehensive measure covering many aspects of domestic violence including the employer prohibition on firing.

Introduced by Rep. Karlee Macer, D-Indianapolis, HB 1342 actually included a provision which made dismissing an employee for filing a protective order a Class B misdemeanor. Macer said she made firing an employee in this situation a criminal offense in order to underscore the seriousness of the issue.

The new law prohibits employers from firing workers but does not impose any penalties if they do. Macer plans to try to get the misdemeanor language added in the next legislative session.

“I think that it is a good step in the right direction,” Macer said of HEA 1159. “I believe it could go even farther.”

Judy was not available for comment.

Civil rights remedy

Before HEA 1159, about the only recourse domestic violence victims had against an employer who fired them in this situation was filing a complaint charging a civil rights violation.

But that route was difficult. Indiana remains an at-will employment state that provides companies with the ability to terminate workers for any reason, as long as the firing is not a discriminatory act based, for example, on the employee’s gender or race.

Women discharged from their jobs for getting an order of protection could argue that based on the Civil Rights Act of 1964, they were discriminated against — since a majority of protective orders are filed by females.

Still, the challenge of seeking a civil rights remedy is that the fired workers have to know this relief exists and they have to have the ability to hire a lawyer. Plus, in court they would likely have to counter the defense that the firing was not discriminatory since protective orders are not exclusive to women.

Kristianne Rouster charged her employer violated the Civil Rights Act when she was fired after filing a protective order against her boyfriend. According to the complaint, Rouster told her supervisor at Pitney Bowes Inc. in Indianapolis about the protective order and then was placed on paid leave before eventually being terminated.

“Their knee-jerk reaction of firing her was just unfair,” said her attorney, Gary Ricks. “Having to choose between your job or your life – that’s not a fair choice to make.”

In May 2012, Rouster filed her lawsuit — Kristianne K. Rouster v. Pitney Bowes, Inc., 1:12-cv-0583 — in U.S. District Court for the Southern District of Indiana. She made the argument that her former employer discriminated against her on the basis of gender.

Additionally, Ricks contacted attorneys representing Pitney Bowes and, to his surprise, found the company to be very responsive. Court filings show the two sides were able to reach a settlement by the end of June 2012.

“She didn’t like being victimized by anybody,” Ricks said of his client. “She spoke up for herself. She understood she had a legal right to get a protective order. She didn’t want this to happen to anybody else.”

Mutually agree

To Blomquist, employers are taking the path of least resistance when they fire workers who get protective orders. Rather than empowering and supporting these employees, many companies let them go or make changes that will force the workers to quit.

Switching the employee to the night shift could create an insurmountable hardship if the worker would have to leave young children alone at home, Blomquist said. Or relocating the employee to another facility farther away would likely make going to work too difficult if reliable transportation is not available.

Consequently, Blomquist applauded the inclusion of the new law’s second provision which calls for employers and the employee-victims to mutually agree to relocate or alter the compensation or terms of the employment.

“I like that provision,” Blomquist said. “It implies (the employer and employee) working together on a solution.”

Pettygrove said the prohibition on firing the worker with the protective order makes good sense. But whereas the Family Medical Leave Act imposes a duty on the employee taking intermittent leave to cooperate with the employer so the absence does not interfere with the operation of the business, HEA 1159 requires no such cooperation. The employer might not be able to take steps to protect the other co-workers if the employee does not agree, he said.

Now, employers will have to choose between the potential lawsuit from the employee with the protective order or the potential for fatalities in the workplace if the abuser comes looking for the victim, Pettygrove said. He fully expects the reasonable employer will protect the workers and risk getting sued.

Still, employment attorney Kathleen DeLaney of DeLaney & DeLaney LLC said the new law was needed. She estimated her office has received calls over the past five years from two or three individuals who were fired for taking out protective orders.

DeLaney hopes HEA 1159 will encourage more victims of domestic violence to protect themselves and discourage employers from firing these victims.

“It’s a problem in need of a fix,” she said.•

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