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Tougher Law in Hawaii Aims to Protect Harassed Workers

Although many employers are complying with Act 206, some 'felt that it didn't need to be required,' notes employer group attorney.

October 30, 2012
Related Topics: Top Stories - Frontpage, Workplace Violence, Harassment, Safety and Workplace Violence, Legal
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Employers in Hawaii are in the midst of implementing one of the nation's toughest laws protecting workers who are victims of domestic or sexual violence.

The law, known as Act 206, requires all employers in the state to provide "reasonable safety accommodations" to workers who are being harassed by their partners and on the job. This includes offering them flexible work schedules and changing work extensions or phone numbers, transferring shifts, desks or work sites.

Employers with an employee who is being harassed must also provide security such as training a front desk staff to bar an abuser from entering the workplace. Employers are exempt if the accommodation would cause "undue hardship."

The law, which was enacted in October 2011 and went into effect Jan. 1, stems from a case on Maui of a female restaurant worker who was fired after a restraining order against her abuser was faxed to her workplace.

Although employers in Hawaii are largely supportive, some are seeking more guidance and clarification on its provisions.

"A lot of members were already providing reasonable accommodations for their workers prior to the mandate," says Sheri-Ann Lau Clark, general counsel for the Hawaii Employers Council, which has about 800 members on the islands. "Many felt that it didn't need to be required."

Some companies are working with victims groups to implement the law and communicate it to workers. They are building on awareness campaigns and Domestic Violence Awareness month, which was in October, to ensure that more employers and employees know about the law.

Other states have laws protecting workers from violence, but Hawaii is among the most stringent, says the Washington-based group Futures Without Violence. For instance, Illinois has the Victims' Economic Security and Safety Act, which since 2003 has provided workers up to 12 weeks of unpaid leave to seek medical or legal help or safety assistance planning if they or someone in their household is a victim of domestic or sexual violence. The law also prohibits employers from discriminating against employees who are victims of domestic or sexual violence.

Jody Moran, a partner with employment law firm Jackson Lewis in Chicago, says such laws are important. "Part of what these laws are trying to do is foster communication between the employer and the employee," she says.

More states are passing laws that protect domestic violence victims in the workplace, says Maya Raghu, policy and program attorney at Futures Without Violence, who called Hawaii's new law "very comprehensive."

Maryland passed a law in April that allows victims of domestic violence who must leave their job for safety reasons to collect unemployment insurance, Raghu says. Maryland Lt. Gov. Anthony Brown, whose cousin was killed by her estranged boyfriend in 2008, backed the measure.

Hawaii already has a leave law for victims on the books, which provides up to 30 days of unpaid leave to workers at companies with 50 or more employees, and up to five days of leave at companies with fewer than 50 employees. Employees must have worked for the employer for six months before being eligible for the leave.

Still, Nanci Kriedman, CEO of the Domestic Violence Action Center in Honolulu, called Act 206 "stunning."

"It means employers can't discriminate against victims of domestic violence," Kriedman says.

It's not uncommon for women being abused to lose their jobs, she says. "Domestic violence programs get inquiries from survivors who face employment discrimination, are dismissed or terminated."

Act 206 doesn't specify whether workers could receive time off as a "reasonable accommodation" and, unlike the victims leave law, there's no waiting period for newly hired workers.

"There's a little bit of conflict and confusion here," Lau Clark says. "It seems to cover leave, but how much? And who is eligible?"

Workers being harassed can substantiate their situation through a police report or court restraining order or letter from an attorney, counselor, health care professional or clergy member, the Hawaii Civil Rights Commission says.

However, Act 206 doesn't require harassed or abused workers to notify their employer when they no longer need protection.

"One frustrating aspect to this is that employers provide training and resources and sometimes the victim of the domestic violence won't leave their abuser," Lau Clark says. "There's no requirement of notice in the law that the employee no longer wants protection."

She cited the case of one large employer in Hawaii that had trained security guards to ensure an offender would not come on site, but the employee would not leave the abusive situation at home.

"That's frustrating for employers," Lau Clark says. "They want their workers to be safe and they want them to come to work and be productive."

Act 206 states that employers cannot require workers to prove their victim status within six months of providing documentation. In other words, employers can't continually ask workers to prove the abuse is ongoing.

The Domestic Violence Action Center in Honolulu is rolling out a program to educate employers in Hawaii about Act 206. The program will teach benefits managers, supervisors and other leadership to assess domestic-violence situations and respond appropriately.

"We want companies to convey to employees that this is a supportive workplace and that they want workers to retain their jobs," Friedman says. "The expectation is that when companies start talking about this, employees will come forward."

Rebecca Vesely is a writer based in San Francisco. Comment below or email editors@workforce.com.

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