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Court Discusses Sick Leave Policy in Light of Domestic Violence Allegations


On 1 June 2000, petitioner was hired by the New York City Department of Correction, subject to a two-year probation period. She is the mother of two pre-teenage children and a victim of abuse by their father, a crack and alcohol abuser with a criminal history.

A New York DWI Lawyer said on November 2000, petitioner moved out with her children and went to live with a relative in the Bronx. Things did not work out and she was ejected from that apartment on 22 March 2002. She requested vacation time to find a home and was granted leave through 4 April 2002.

On 5 April 2002, petitioner, who was still homeless, asked the Department’s Health Management Division (HMD) for further time off to continue her search for a place to live. HMD put her on immediate sick leave due to stress, confiscated her identification, and directed her to obtain a new one which reflected she was psychologically unfit to carry a firearm. At that same meeting, HMD demanded that petitioner provide them with an address. When petitioner told them she was homeless and lacked an address, she was told she could not work at the Department without one. A New York DWI Lawyer said faced with that threat even after she had explained her homelessness, she gave her husband’s address.

HMD conducted a visit to petitioner at her husband’s address in April 2002. When she was not found there, they required her to appear at HMD the following day to explain her unauthorized absence from home. Informed of these events by her mother-in-law, petitioner appeared at HMD and at their request wrote a report explaining her circumstances and homelessness.

Nonetheless, HMD made four subsequent visits to the husband’s residence in April and May 2002 expecting to find petitioner there. Petitioner remained homeless, sleeping variously in her car, hotels, shelters or friends’ homes. Petitioner did return to her husband’s home on 27 April 2002, and again on 10 May 2002 but both times he assaulted her and she had to seek police intervention and leave again.

On 14 May 2002, petitioner finally obtained a stable residence upon her admission to a domestic violence shelter, Safe Horizon. According to petitioner, Safe Horizon does not allow its residents to divulge their exact address to anyone who does not sign a confidentiality agreement; so when she called HMD to apprise them of her new address, she gave them the shelter’s office address as the place to contact her. When HMD’s monitor attempted to visit petitioner at the shelter, she was told by staff that petitioner’s residence would not be disclosed unless she signed a confidentiality agreement, which she did not do.

On 22 May 2002, the day after the aforesaid visit, petitioner went to the hospital for surgery and returned to the shelter on May 25, having been told by her doctor to stay out of work for six weeks due to the surgery. HMD approved the leave and scheduled petitioner to return to work on 3 July 2002. After another abortive visit on June 3, HMD signed the Safe Horizon confidentiality agreement on 7 June 2002, at which time petitioner was told to return to HMD on June 21. It is unclear whether any further visits to the shelter were made after that point.

On 21 June 2002, petitioner went to her appointment at HMD. She was given a termination letter backdated to 17 June 2002 without explanation and her shield and identification were taken. Pursuing an unemployment claim, petitioner learned she was fired for being away from her residence while on sick leave on 3 June 2002.

Petitioner instituted the instant proceeding seeking to annul respondent’s decision to terminate her employment, be reinstated and receive back pay.

The petition is grounded in an untested provision of the New York City Human Rights Law which bars employers from discriminating against victims of domestic violence.

Petitioner contends that her termination was illegal because it was solely based on the fact that, as a victim of domestic violence, she was unreachable while on sick leave due to HMD’s failure to sign the confidentiality agreement prior to the June 3 visit.

Respondents’ position is that petitioner was a probationary employee and as such was dismissible without cause, and at any rate cause existed even without the sick leave violations.

Was there an illegal dismissal?

The policy at issue is the Department’s sick leave policy for members of the uniformed correction force. If reporting sick from somewhere other than their own residence, the same information must be provided for the location from where the employee is reporting sick.

The sick leave policy requires all employees who are on sick leave to remain in their “residence or place of confinement” at all times except when receiving medical treatment, obtaining prescribed medicines or “where contractually permitted”. In addition, HMD may grant time out of residence for therapeutically beneficial reasons. HMD may also schedule appointments for a variety of reasons. If an appointment is missed, the person on sick leave must contact HMD’s scheduling unit within one hour of the missed appointment to reschedule it. Whenever the employee is to be absent from the place of confinement, the employee must advise HMD of all particulars upon both departure and return.

Feigning illness to evade work is forbidden, and if suspected must be investigated and reported by institution or division heads. Noncompliance with the policy may result in disciplinary charges or payroll deductions, depending upon the circumstances.

Although under the sick leave policy only institution or division heads bear the responsibility for investigating suspected sick leave abuse, and HMD is specifically granted only the power to dispatch medical professionals to the employee’s home to evaluate his medical condition, it appears to be HMD’s practice to itself police sick leave abuse by sending monitors to a sick person’s home for surprise visits.

On the other hand, the impact of domestic violence in the workplace has received increased attention in recent years. Lethal results have ensued from employers’ deaf ears to a victim’s pleas for time off work or for protection from the abuser.

The ability to hold on to a job is one of a victim’s most valuable weapons in the war for survival, since gainful employment is the key to independence from the batterer.

A batterer causing the victim’s job loss can incite financial despair when the victim realizes that she cannot provide for herself or her children without the batterer’s assistance. Moreover, with each firing it becomes more difficult for victims to obtain new jobs. They are labeled as problematic employees while no effort is made to hold the abusers responsible.

Neither is the domestic violence victim’s employer in for a picnic. Domestic violence leads to absenteeism, increased health care costs, higher turnover, lower productivity, and a greater risk that a violent incident will occur at the workplace, especially when law prohibits discrimination for lost time. Hence, it is of mutual advantage to work together to end the threat of violence.

In 2001, based on public policy considerations, the New York City Council enacted an amendment to the City’s Human Rights Law to prevent employers from discriminating against victims of domestic violence. The stated purpose of this amendment was to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers by “enabling victims of domestic violence to speak with their employers without fear of reprisal, about a domestic violence incident or about possible steps that will enhance their ability to perform their job without causing undue hardship to the employer.

To note, a Nassau County DWI Lawyer said a probationary employee can be dismissed without a hearing and without a statement of reasons in the absence of any demonstration that dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law. Judicial review of such a determination is limited to an inquiry as to whether the termination was made in bad faith. The burden of raising and proving such bad faith is on the employee and the mere assertion of bad faith without the presentation of evidence demonstrating it does not satisfy the employee’s burden.

Where bad faith is alleged, the scope of judicial review is broader.

The broad discretion enjoyed by those who are empowered to discharge probationary employees is not unbridled, but is, as a matter of law and public policy, contingent upon good faith. We take, as an axiom, that the burden of raising and proving bad faith rests upon petitioner’s shoulders. Nonetheless, the Administrative Code imposes on the employer “the burden of proving undue hardship” to its business whenever it refuses to reasonably accommodate the special needs of a domestic violence victim.

It is clear that petitioner falls under the statutory definition of a “victim of domestic violence”.

The dispositive issue is whether the Department’s sick leave policy or its implementation with respect to petitioner and those similarly situated is impermissibly discriminatory.

Respondents have produced evidence that petitioner’s job performance, especially in the first year, was not exemplary. She had excessive tardiness and absenteeism (perhaps a by-product of the domestic violence) and had an altercation with a coworker.

Clearly, had they chosen to fire her at that point, they would have been totally within their rights. However, they did not do so. They kept her on and it was only when she was living in a shelter for abused women with an apparent unverifiable address that they terminated her employment. Although, in an appropriate case, related chronic absenteeism may be found to prevent an employee from reasonably performing the duties of the job, the inquiry must focus on petitioner’s status as of the time of actual termination and not earlier.

Respondents may not have intentionally acted in bad faith, as petitioner contends, but they did act in contravention of Local Law No. 1 in that they failed to make reasonable accommodations for petitioner’s status as a homeless victim of domestic violence. The end result, petitioner’s loss of a job at the point when she was finally getting her living situation under control, is exactly the kind of fallout that Local Law No. 1 was enacted to prevent. Fortunately, the law recognizes that the forms and guises of discriminatory conduct do not always fall neatly into readily identifiable packages and affords relief so long as the victim can establish that the conduct occurred under circumstances which give rise to an inference of unlawful discrimination.

Accordingly, the court finds the petitioner illegally dismissed and orders a reinstatement and back pay.

Domestic Violence can affect a person in many ways. The victims don’t just suffer from the physical pain but more on the emotional pain that they find it hard to get back up and go on living their lives. Sometimes these victims find it hard to function and work. Thus, laws have been implemented to help and if these laws were violated, contact Stephen BIlkis & Associates. Consult with our New York Domestic Violence Lawyers or New York Criminal Lawyers for free and know your legal options. Our legal teams have the experience, education and skill to help you win your case.

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