How should Human Resources respond to the following scenario?: An employee reports that she recently separated from her husband and obtained a domestic violence restraining order. Several co-workers approach HR to report that the employee is telling her colleagues that she is terrified that her spouse will come after her in the workplace. He is known to possess a number of firearms (they were not taken as a result of the restraining order), and has attacked her in the past. The spouse has threatened the employee that he always knows where to find her at work. The co-workers express their concern about their colleague, as well as their personal fear of being caught up in a potentially dangerous situation.
Can the employer remove the domestic violence victim from the workplace based on their concern over a possible incident involving her estranged spouse? In North Carolina, the answer to this question is unclear. State law requires employers to provide reasonable time away from work for an employee to obtain a domestic violence restraining order. Other laws, such as the FMLA and ADA, may provide leave rights for employees who suffer physical or mental repercussions of domestic violence. However, North Carolina law is unclear on the specific question of whether an employer is entitled to remove an employee based on fears of an attack by their spouse on workplace premises.
In 2004, the state Supreme Court concluded in its Ines decision that an employee who claimed he was fired as the result of being a victim of domestic violence did not state a claim for wrongful discharge because the General Assembly had never created a specific exemption to the employment at-will doctrine on this basis. Subsequent to that decision, the legislature adopted the law giving employees the right to leave to obtain a restraining order, perhaps providing a basis in public policy for a wrongful discharge claim relating to termination of a domestic violence victim.
An employer faced with these circumstances should first look at measures intended to reduce the changes of a violent incident. These steps can include obtaining a separate restraining order themselves based on threats by the employee’s spouse. The employer should take measures to improve security, such as reporting and coordinating the response to the incident with local law enforcement, retaining private security services, securing the premises from unauthorized entry and training affected employees about procedures for responding to a violent workplace incident.
If these measures prove ineffective, the employer can work with the employee subjected to these threats to help develop a plan for minimizing spillover effects of domestic violence in the workplace. These can include steps such as expansion of the restraining order, and escorting the employee to and from her vehicle if parked in an unsecure area.
In the end, some employers may conclude that a situation is so volatile that they are simply unwilling to risk exposing employees to a potentially violent spouse or partner. The employer may consider a paid leave of absence or some other measure intended to provide a period of time for other anti-violence measures to be implemented.
In rare situations, the employee subjected to the threats simply refuses to cooperate in any measures intended to reduce the threat of workplace violence. An employer considering termination as an option under these circumstances should be aware of the potential for a claim of wrongful discharge based on state public policy. This termination decision should be a last resort taken only after the employer has exhausted all other options, and after the employer has thoroughly documented the basis for its concern over a violent episode.