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It’s Not Just Employee Victims: Retailers Also Pay for Domestic Violence

A new survey of perpetrators of domestic violence makes it clear: store associates involved in abusive domestic relationships can’t leave their troubles at home.

One-third of abusers admit that they contacted their current or former partners during work to engage in arguments or emotionally abusive actions, according to the study conducted by researchers at the Ontario Institute for Studies in Education at the University of Toronto and Western University. And 25 percent said they used their partner’s work hours to either visit them at work or to go to their homes, according to the study released in October.

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Traditionally, people felt domestic violence only affected the workplace if there was an actual violent incident at the workplace, noted a representative of the Corporate Alliance to End Partner Violence (CAEPV). But hidden costs of domestic violence are now more likely to be recognized. These include a drop in productivity as victims’ struggle with the ongoing physical and emotional challenges related to the abuse.

Employers lose $100 million annually in lost wages, paid sick leave, and absenteeism linked to domestic violence, according to data compiled by CAEPV. On average, a domestic violence victim incurs $1,775 more in annual medical costs than an individual who is not a victim. Also significant is the potential for a retailer to be held liable in cases of domestic violence that spill into the workplace.

Verdicts Reflect the Tricky Nature of Handling Domestic Violence

Case #1. An employer was ordered to pay $3.25 million to an employee who survived being shot in the head by an estranged boyfriend in the company parking. The assailant was waiting in the victim’s car and confronted her as she left work, shooting her as she tried to make her way back into the workplace (Amie Wieland v. Owner-Operator Services, Circuit Court of Jackson County, Missouri, Division 17, No. 1416-CV17464, Nov. 9, 2015.)

It would appear that the company had undertaken several security measures in the face of previous criminal activity in and around the property, including a rape in the facility’s parking lot. The company created an ad hoc security team with members drawn from the facility’s employees and placed the parking lot under video surveillance, with monitors located in the office of the HR director, who also acted as the head of the security team.

The workplace violence prevention measures were deemed insufficient by the jury, however, and “demonstrates the practical and legal challenges many employers face in today’s environment,” according to analysis by the labor law firm of Fisher & Phillips. “The case shows the risk extends beyond violence by employees to violence by nonemployees—particularly in situations involving domestic abuse. The verdict is an extraordinary result. The employer tried to help the employee, but was still sued and hit with a huge verdict.”

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Lessons. It’s impossible to know why the jury felt the employer was responsible for the ongoing domestic violence incident—the attacker had reportedly been stalking Wieland for more than a year. But the claims made in court and analysis by Fisher & Phillips suggest a few steps the company could have taken to escape liability and/or to prevent the incident.

First, recognize that juries want to see training that matches responsibility. The lawsuit alleged that neither the individual heading the security effort nor the employee member of the security group had law enforcement or security training.

Next, it’s critical to take immediate action when workers express safety fears. Earlier in the day of the shooting, the employee and the estranged boyfriend had a court hearing regarding a protection order. She alleged that when she arrived for work later that day that she reported the dismissal of the protection order to the HR Director and received assurance that the security team would be notified and would be on the lookout for the boyfriend. “However, the employee claimed in court that the HR director failed to do as promised. The employee’s attorney argued that the company had a policy of escorting employees to their vehicles when appropriate for safety reasons, yet no one did so on the day in question,” notes Fisher & Phillips.

“With the benefit of hindsight, the employer in this case might have considered other protective actions,” according to the law firm’s analysis. This could have included sending the employee to the police or directly contacting the police. More closely monitoring the parking lot—the location of most domestic violence assaults that occur at work—was another viable option, as was bringing in private security to temporarily enhance protection. In any event, the case serves as a reminder that employers should be careful to follow through on any representations of safety and security measures and to be cautious about making any promises concerning security, according to the firm.

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Case #2. The above case exemplifies why employers may be wary of employees coming to work when an intimate partner is threatening them. But employers can pay a penalty if they discriminate against victims of domestic violence in any fashion, as suggested by a recent settlement between the New York State Attorney General and Bon-Ton Stores, Inc.

In October 2015, a Bon-Ton store employee allegedly reported for her scheduled work shift and informed the store’s loss prevention specialists and her store manager that she had received death threats from her estranged husband. After informing the store manager that she had filed a police report and was seeking a protection order, she was sent home before the end of her scheduled shift. She would be paid for her time off, she said she was told, but that she needed to stay home until she had received the order of protection and provided it to the store manager.

Under the New York Human Rights Law, however, it’s unlawful for an employer to refuse to employ, or to discharge or discriminate against an individual in compensation or in terms, conditions, or privileges of employment, based on his or her status as a victim of domestic violence. In response to the Attorney General’s inquiry, Bon-Ton agreed to let the employee return to work and provided her with a safety plan pursuant to its Random Threat Response Policy.

As part of the agreement, announced Nov. 19, 2015, the company revised its policy to indicate that discrimination on the basis of domestic violence victim status is prohibited within the workplace, and that a domestic violence victim is not required to provide a protective order in order to continue working. Under the settlement, the retailer also agreed to provide educational materials and training to all state employees on the legal protections afforded to victims of domestic violence.

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