Domestic Abuse and Wrongful Discharge, Quirky Question # 66
Quirky Question # 66:
One of our employees recently advised us that she and her two children were suffering from domestic violence by her husband. She requested us to provide her time off to move herself and her children out of the abusive situation at her home. Frankly, we were somewhat skeptical so we denied her request. Not long thereafter, her husband beat up one of her children so severely that he required hospitalization. Again, she requested time off to move herself and her children, this time into a shelter. Needless to note, we felt very badly about what happened and granted her request.
About a month after returning from leave, her supervisor demoted her. A few months later, he discharged her. She is now suing our firm for wrongful termination in violation of public policy? Is this a legitimate claim in Washington? If so, what are our risks.
Although employment in Washington is generally terminable “at will” (meaning that an employee may quit or be fired for any reason not prohibited by law), the doctrine of wrongful termination in violation of public policy provides narrow exceptions to that general rule. Washington has typically applied the tort of wrongful discharge to situations where an employer terminates an employee for reasons that contravene a clearly mandated public policy as articulated in “a constitutional, statutory, or regulatory scheme.” In the past, such policies have included those where an employee was terminated as a result of his or her (1) refusal to commit an illegal act; (2) performance of a public duty or obligation; (3) exercise of a legal right or privilege; or (4) in retaliation for reporting employer misconduct.
As you may have recognized, the situation described in this question parallels a case decided by the Washington Supreme Court on October 3, 2008. In Danny v. Laidlaw Services, the Court ruled that Washington has “a clear public policy to prevent domestic violence.” In Danny, the plaintiff and her five children had experienced ongoing domestic violence at the hands of her husband, resulting in her son being hospitalized. She requested time off from work twice and was at first refused. Following the hospitalization her son, however, the company granted her request for time off. About a month after she returned to work, she was demoted, and in December, she was terminated. She then brought a lawsuit, alleging that she was wrongfully terminated in violation of public policy.
Washington’s Supreme Court stated that although the wrongful discharge tort should be “applied cautiously,” there were many executive, judicial and legislative enactments which pronounced a public policy to prevent domestic violence. In fact, as early as 1979, the Washington legislature recognized in a statute that domestic violence was a community problem that accounts for a “significant percentage” of violent crimes in the nation and is disruptive to “personal and community life.” RCW 70.123.010. Also in 1979, the legislature enacted the Domestic Violence Act (DVA), requiring law enforcement to respond to domestic violence. The DVA was later expanded to require the mandatory arrest of domestic violence perpetrators. In 1984, the legislature enacted a separate Domestic Violence Protection Act (DVPA) to provide domestic violence victims with the ability to obtain civil protection orders against their abusers.
Domestic violence protection has even expanded to the employment context. In 2002, recognizing that a fear of losing one’s employment may hinder escape from domestic violence, the legislature enacted laws allowing domestic violence victims to receive unemployment compensation through the state if they must leave employment to protect themselves or their immediate family from violence.
Washington has been equally active in protecting child victims of family violence. It has established a council for prevention of child abuse and neglect, and created procedures for obtaining a protective order against the abuser of a child.
Against this backdrop, the Washington Supreme Court held that the state’s policy of domestic violence prevention is “truly public” in nature, and that this, coupled with Washington’s Executive Order 96-05 which directs each state agency to create workplace environments that provide “assistance for domestic violence victims without fear of reproach” and notes that domestic violence causes “loss of productivity, increased health care costs, increased absenteeism, and increased employee turnover,” was sufficient to support a finding of public policy to prevent domestic violence.
The Court did not leave this public policy unlimited, however. In other words, an employee’s notification to his or her employer of domestic violence is not carte blanche to take unlimited time off from work. The Court specifically stated that in order for Danny to prevail on her claim of wrongful discharge in violation of public policy, she still must meet the remaining three essential elements of the claim: a) jeopardy; b) causation; and c) absence of justification. In this case, Danny would have to show that the time off she took was the only available adequate means to prevent the domestic violence against herself or her children or to hold her abuser accountable. Some examples of situations which would likely meet this threshold are:
- Obtaining a protective order where court is only open during her working hours;
- Testifying against her abuser if the hearing is during her working hours;
- Moving into a shelter if the shelter’s move-in rules required doing so during her working hours;
- Moving into a shelter if the abuser’s schedule made it impractical or dangerous to move during non-working hours.
Situations where the time off would probably not meet the threshold could include:
- Obtaining a protective order or testifying against the abuser where the employee only works the night shift;
- Time off in excess of that necessary given the distance from the court that would be traveled to participate in either of the above.
Based upon the above factual questions, the Court remanded the case to the District Court for further consideration as to the other three elements of the wrongful discharge in violation of public policy claim.