In the wake of the NFL’s Ray Rice scandal – and more recent domestic violence issues – a lot of employers are asking the same question: Can we fire an employee who’s committed domestic violence?
This issue was recently tackled head on by The Washington Post, which solicited comments and advice from employment law attorneys.
The general consensus: There is no cut-and-dried “right” response.
There are a number of factors even at-will employers should first take into consideration before taking any adverse employment actions against workers embroiled in domestic violence disputes.
No. 1: Has the person been convicted?
There’s a big difference between being charged/accused and actually being convicted — and as with most background screenings, you probably want to avoid acting on the former.
What you want to focus on instead is whether or not the person has been convicted.
Without a conviction, you could open yourself up to a wrongful termination suit if you fire an employee because he or she was accused of or charged with domestic violence.
The tricky part here: Most employers don’t run thorough background checks on existing employees, and that’s most likely what you’d have to do find conviction info.
No. 2: Is there a workplace risk?
You could also open yourself up to a wrongful termination suit if you can’t directly tie the domestic violence incident back to a specific workplace risk, attorney Robin E. Shea, author of the Employment & Labor Insider blog, told The Post.
And that, she said, could be very difficult to do if the offender is a good performer, co-workers don’t feel at risk and the spouse doesn’t work for you.
No. 3: Is the person a public figure?
If the abuser is in the public spotlight, as a face of your company, it becomes safer to let the person go — and that’s especially true if the person is working under an agreement putting strict prohibitions on offensive behavior.
At that point, since the person’s actions are likely eroding your brand, it becomes much easier to apply the workplace risk test.
No. 4: Is the person in a leadership position?
If a person convicted of domestic violence is one of the people you’re asking employees to look up to, keeping the person in power could also erode the culture of your company, attorney Mark Terman of the law firm Drinker Biddle & Reath LLP told The Post.
That could be grounds for making the argument that the person poses a threat to your business.