Law threatens businesses
During the 2011 legislative session, a well-intended bill (Senate Bill 229) was introduced to prevent discrimination against victims of domestic violence. It was later expanded to include victims of sexual violence, and everyone would likely agree with both.
However, the bill went south when employer mandates (versus suggestions) were added to protect victims of domestic and sexual violence at work, including:
* Changing the contact information, such as telephone numbers, fax numbers or electronic-mail addresses, of the employee.
* Screening the telephone calls of the employee.
* Restructuring the job functions of the employee.
* Changing the work location of the employee.
* Installing locks and other security devices.
* And allowing the employee to work flexible hours, provided that an employer shall not be required to make the reasonable accommodations if they cause undue hardship on the work operations of the employer.
“Civil actions” were incorporated, stating “Any employee denied reasonable accommodations by an employer in violation of this subpart may file a civil action against the employer to enforce this subpart and recover costs, including reasonable attorney’s fees, incurred in the civil action.”
The language can criminalize employers who are not part of the violence instead of those actually causing it. It doesn’t make sense. Further, what constitutes “undue hardship” could be different for every business and particularly harmful to small businesses. In addition, there is no timeframe or limit on these accommodations. It went from preventing discrimination against victims of domestic and sexual violence to making the business sector pay to address a massive social problem.
Domestic and sexual violence is not an employer issue. It is a government, judicial and social issue, and these groups are more familiar with and better equipped to address these situations and protect victims. But, the bill passed and is law. It affects all employers, regardless of size, creating a real threat for many businesses.
Think about last year’s tragic Molokai story covered in The Maui News (March 2013) where a woman was shot dead by her boyfriend, whom she had been in a relationship with for nine years and had four children.
Four days prior to killing her, her boyfriend was arrested for abusing her and there had been a history of violence. He was arrested and charged with abuse, but released after posting $1,000 bail. He then sought, found and shot his girlfriend in the chest.
This unconscionable and senseless violence is horrific and heartbreaking. It indicates many challenges faced in addressing domestic violence issues. Now, ask yourself, “What if this act of violence happened at my business?”
We should not make businesses bear the brunt of a problem they are not a party to, open them up to civil action, and make them provide and pay for protection well above and beyond that afforded by the court system.
That is why we are working to amend the law through House Bill 2649 to get back to the original intent of preventing discrimination and establishing reasonable workplace accommodations.
We feel a temporary restraining order (TRO) must be prerequisite for accommodations. A TRO provides victims with protection, establishes boundaries, sets timelines for the restrained party and details levels of restraint – information that will help employers in the protection process.
Given a copy of the TRO, businesses can make all necessary personnel aware of the order so they can alert authorities if any provision is violated while the victim is at work. That is a “reasonable” and “fair” response for businesses and should be the extent of the “required” or “mandated” expectation.
Please encourage lawmakers to support HB2649.
* Pamela Tumpap is president of the Maui Chamber of Commerce.