Presentation on theme: "Allstate Insurance Company Chicago Lawyers’ Committee for Civil Rights Under Law July 27, 2010 Victim's Economic Security and Safety Act (VESSA)"— Presentation transcript:
Allstate Insurance Company Chicago Lawyers’ Committee for Civil Rights Under Law July 27, 2010 Victim's Economic Security and Safety Act (VESSA)
2 Employment Rights for Victims of Domestic and Sexual Violence Presented by: Steve Ihm Kristen Lay Allstate Insurance Company Based on Presentation Prepared by: Wendy Pollack Sargent Shriver National Center on Poverty Law Disclaimer: These materials are for informational purposes only and do not constitute legal advice. These materials represent do not represent the views or position of Allstate Insurance Company.
3 Agenda Background & History of VESSA VESSA Provisions Employer Responsibilities Enforcement under VESSA Working with Victims of Domestic & Sexual Violence Hypotheticals Question & Answer
5 What is the Connection Between Domestic Violence, Sexual Assault and Stalking, and the Workplace 75% of domestic violence perpetrators have used workplace resources to threaten or harass their intimate partner. More than half of stalking victims lost 5 or more days of work; about 130,000 stalking victims have reported that they were fired from or asked to leave their jobs because of stalking. Intimate partner violence victims lost almost 8 million days of paid work because of the violence against them by current or former husbands, boyfriends, or dates (equivalent to 32,000 full-time jobs and almost 5.6 million days of household productivity).
6 What are the Concerns of Survivors of Domestic Violence, Sexual Assault, and Stalking in the Workplace? Survivors may fear being fired due to violence-related job performance issues or due to their employer’s concern about the risk of violence at work. Survivors may fear being harassed and/or assaulted by a perpetrator at work. Such fears may cause a survivor to quit her job. Survivors may fear being fired by an employer after taking time off from work to heal from injuries caused by assault or to pursue legal action.
7 Like other employees, most victims of violence are at-will employees, however, they may enjoy certain employment protections under state and federal law. Victims of Domestic Violence, Sexual Assault and Stalking Have Employment Rights
8 Federal Laws That May Protect Victims of Domestic Violence, Sexual Assault and Stalking Anti-discrimination and anti-harassment laws, such as Title VII, ADEA, and ADA. The Family and Medical Leave Act provides job- guaranteed leave to qualified employees. Occupational Safety and Health Laws.
9 State Laws That May Protect Victims of Domestic Violence, Sexual Assault and Stalking Victims’ Economic Security and Safety Act (VESSA). State equivalents of Title VII, ADEA, and ADA prohibit discrimination and harassment based on gender, race, national origin, religion, color, age, disability, marital status, arrest record, and whistleblower status. The Illinois Human Rights Act was recently amended to prohibit employment discrimination on the basis of “order of protection status”. Unemployment Insurance Benefits for Victims of Domestic Violence. Local laws may provide additional protections (based on parental status, sexual orientation, source of income).
10 History of Advocacy for Unpaid, Job Guaranteed, Leave for Victims of Violence In the 1990s, victim advocates began working with workers’ rights advocates, welfare advocates, and women’s rights groups to pass state laws providing targeted leave for victims of domestic violence. Today, twelve states, District of Columbia, New York City, Westchester County (NY) and Miami-Dade County have statutes and/or ordinances providing unpaid, job guaranteed leave (or leave as a reasonable accommodation) specifically to victims of domestic violence. 1 Additionally, about half of the states have “crime victim leave laws” that give victims of crimes, including domestic violence, sexual assault, or stalking, time off to go to court at least under certain circumstances. 1 State Law Guide Employment Rights for Victims of Domestic or Sexual Violence, August 2009, www.legalmomentum.com
11 Illinois Victims’ Economic Security and Safety Act
12 Illinois State Law: Victims’ Economic Security and Safety Act VESSA is the most comprehensive set of employment law protections for victims of domestic violence and sexual assault in the country. VESSA contains: Unpaid, job-guaranteed leave provisions. Anti-discrimination provisions. Reasonable accommodations. Presently applies to employers of 15 or more employees. (Previously, this statute only applied to employers with 50 or more employees. Recent amendment extended coverage). VESSA became effective August 25, 2003. The law is codified at 820 ILCS 180. VESSA regulations at 56 Ill. Adm. Code 280.
13 Unpaid, Job-Guaranteed Leave Provisions Under VESSA
14 Who is Qualified for Leave Under VESSA? An employee: Who is a victim of domestic or sexual violence or stalking or who has a family or household member who is a victim of domestic or sexual violence. Who works for an employer that: employs at least 50 employees shall be entitled to a total of 12 work weeks of leave during any 12 month period employs at least 15 but no more than 49 employees shall be entitled to a total of 8 work weeks of leave during any 12-month period.
15 Who is Qualified for Leave Under VESSA? Employers subject to VESSA in any calendar month continue to be subject to VESSA for the following 12 months even if the size of their workforce is reduced. Independent contractors are exempt from this law.
16 When is Leave Available Under VESSA? An employee of a covered employer may take VESSA leave: To seek medical attention or recover from physical or psychological injuries caused by the violence. To obtain services from a victim services organization. To participate in safety planning, including relocation. To seek legal assistance or remedies to ensure health and safety. To obtain psychological or other counseling.
17 How Much Leave is Available Under VESSA, and How Can It Be Taken? Eligible employees may take: Up to 12 work weeks of unpaid job guaranteed leave (employers with at least 50 employees) or up to 8 work weeks (employers with at least 15 but no more than 49 employees) during any 12 month period. Employees entitled to any other paid or unpaid leave (e.g., vacation, sick, personal) may choose to use that leave instead of the leave provided under VESSA. Leave may be taken intermittently or on a reduced work schedule. Eligible employees must provide 48 hours advance notice before seeking leave if practicable. Group health benefits must continue. May be limited by expended FMLA Leave.
18 May an Employer Request Proof That an Employee is Taking Leave Under VESSA for Qualified Purposes? Yes An employer may require certification that the employee or her household/family member is a victim of domestic or sexual violence or stalking and that the requested leave is for one of the permitted purposes. Certification by the employee may be satisfied with a sworn statement of the employee, and upon obtaining such documents, any of the following: documentation from a victim services organization, an attorney, a member of the clergy, a medical or other professional, a police or court record, or other corroborating evidence. Certification must be provided within a reasonable timeframe. All information provided to an employer MUST be kept confidential.
19 Can an Employer Take Any Adverse Action Against An Employee Because She Took Leave Under VESSA? An employer may not interfere with or deny the exercise of VESSA rights to an employee protected by VESSA. An employee who takes leave under VESSA is entitled to restoration to the same or an equivalent position at the end of the leave. Employees who take leave under VESSA may not lose employment benefits, such as health insurance, while on leave; however, employees on leave do not accrue benefits, such as seniority, during the leave. An employer may not fire, harass or otherwise discriminate against an employee because that employee has exercised her VESSA rights.
21 Reasonable Accommodations VESSA requires employers to make reasonable accommodation to known limitations resulting from circumstances relating to domestic or sexual violence. Unless the employer can demonstrate that such accommodation would impose an undue hardship.
22 What Types of Reasonable Accommodation Can An Employee Request Under VESSA? Transfers Reassignments Modified work schedules Leave Changed telephone number Changed seating assignment Installation of a lock Implementation of safety procedures
23 Are There Circumstances Under Which an Employer Can Refuse to Make an Accommodation? An employer can refuse to make an accommodation if it will impose an undue hardship on an employer. Factors to consider in determining whether an accommodation imposes an undue hardship: Nature and cost of the accommodation. Overall financial resources of the facility. Overall financial resources of employer. Type of operation of employer.
25 What Are the Non-Discrimination Requirements of VESSA? VESSA prohibits an employer from discriminating, harassing, or retaliating against any individual because: The individual is or is perceived to be a victim of domestic or sexual violence. The individual attended, participated in, prepared for, or requested leave because of a criminal or civil court proceeding related to an incident of sexual or domestic violence or stalking of which the individual or a family/household member was the victim. The individual requested a reasonable accommodation in her employment to increase her safety because of sexual or domestic violence or stalking. The workplace is disrupted by the perpetrator of the domestic or sexual violence.
27 Summary of Employer Obligations under VESSA Must provide leave and reinstatement to the same or equivalent position. Must not discriminate in hiring, firing, promotion, or other actions against victims of domestic or sexual violence. Must maintain confidentiality of requests, leave taken. Must post IDOL VESSA notice. Must not retaliate against employee because she asserted VESSA rights Must retain certain records
28 Records Retention Employer MUST retain for at least 3 years: Name, address, and occupation of each employee. Rate or basis of pay. Terms of compensation. Daily and weekly hours worked per pay period. Additions to or deductions from wages. Total compensation paid each pay period. All dates VESSA leave is used. Copies of “employee requests” for leave, if in writing. True and accurate records of the paid time off earned for each year and dates on which paid leave was taken or paid. Records of any dispute between the employer and an employee regarding designation of leave under the Act. Documents describing employee benefits or employer policies and practices regarding paid leave and unpaid leaves.
30 How Can Employees Enforce Their Rights Under VESSA? The Illinois Department of Labor (IDOL) administers and enforces VESSA, and has the power to: Conduct investigations Receive and investigate complaints Victims have three years from the alleged violation to file a complaint with the Illinois Department of Labor. A standard complaint form may be downloaded at www.state.il.us/agency/idol/Vessa/Vessa.htm.
31 Enforcing Rights Under VESSA After a complaint is filed, IDOL determines jurisdiction and then serves each Respondent with a copy of the complaint. Respondents must submit a written response within 21 days in which they are required to respond to every allegation by: Agreeing or Disagreeing and stating all facts on which the Respondent relies. IDOL sends Respondent's certified answer to the Complainant who is given the opportunity to file a rebuttal: Agreeing or Disagreeing and stating all facts on which the Complainant relies.
32 Enforcing Rights Under VESSA - Cont. When this process is complete, the IDOL makes a finding of cause or no cause. Upon issuance of an IDOL decision, either party has 30 days to request in writing a hearing to review the cause/no cause finding. Formal administrative hearings reviewing IDOL decisions comply with the provisions of the Illinois Administrative Procedure Act, 5 ILCS 100/10, and IDOL Rules of Procedure in Administrative Hearings, 56 Ill. Adm. 120. Judicial review is available for the non-prevailing party.
33 Remedies for VESSA Violations Damages for violations may include: Monetary damages for lost wages, employment benefits, public assistance, or other compensation denied or lost; Equitable relief, such as hiring, reinstatement, promotion, and reasonable accommodations; Attorneys fees, expert witness fees, and other costs of the action; Any employer who has been ordered by IDOL to pay damages and who fails to do so within 30 days is liable to pay a penalty of 1% per day to the employee for each day of delay in paying the damages.
34 Working with Victims of Domestic and Sexual Violence
35 What Kind of Employment Assistance Does a Survivor of Violence or Stalking Need? You may need to refer your client to a service provider to develop a safety plan at work, to help your client: Obtain an order of protection or a civil no-contact order – include the workplace; Change work habits; Screen phone calls; Change phone number at work; Move to another location; Change work hours.
36 VESSA Online Go to Illinois Department of Labor’s webpage: http://www.state.il.us/agency/idol/laws/Law93591.htm to view: 820 ILCS 180 (Codified); and 56 Ill. Adm. Code 280 (Regulations).
37 How to Advise Survivors of Domestic Violence about Unemployment Insurance Benefits APPLY, APPLY, APPLY!! Illinois passed its law in 2003 and it went into effect January 1, 2004; 820 ILCS 405/601(B)(6). Victims of domestic or sexual violence may be eligible for unemployment insurance benefits. Eligibility for unemployment insurance is largely misunderstood. As a result, many people who qualify for unemployment insurance do not receive benefits. For more information on unemployment benefits for domestic violence survivors contact: Wendy Pollack Sargent Shriver National Center on Poverty Law 312-263-3830 ext. 238 firstname.lastname@example.org
40 Carol and Dan’s Supermarket Carol was employed by Rob’s Supermarket, a local grocery store. Carol worked in the produce department. Carol was a hard worker and a good employee. She lived with her husband and two children. Carol sought an order of protection against her husband because he was and continues to be physically abusive. Carol explained to her supervisor, Mike, that she needed to be in court to obtain an order and protection and asked for a day off. Carol was able to take 1 day off work to attend court. She obtained an order of protection and planned to move out of her home to a shelter for victims of domestic violence. Carol needed time off work to pack, move her belongings, and get settled at the shelter. The day after Carol obtained the order of protection, she showed it to Mike, explained her situation, and asked for 3 days off so that she could pack and move with her children to a shelter. Mike refused to keep a copy of the order of protection, and denied her request to take 3 days off. He told her that if the company knew about her order of protection, she would be seen as a “problem employee.” However, he did permit her to take off 1 day.
41 Carol and Dan’s Supermarket Carol used to be able to walk to work from her home. However, the shelter is located 20 miles from Rob’s Supermarket. Carol had to rely on taxis or take the bus to get to work. Sundays were extremely problematic because it was difficult to get a taxi on Sundays, especially during inclement weather, and no public transportation was available. As a result, Carol was late a few times to work on Sundays. She requested a schedule change so that she would not have to work on Sundays due to transportation difficulties in light of her new living situation. Her request was denied. Carol was written up for being late. Mike continued to schedule her to work on Sundays. Everything at work for Carol changed after she showed Mike the order of protection. He began to ask her out on dates—to dinner, movies, even a hotel. He repeatedly made sexual advances towards her. He even tried to hug and kiss her. He told her that if she wanted things to go well, she would have to go out with him. He specifically threatened to cut her hours if she did not go out with him. Mike also constantly laughed, made fun of, and teased Carol about her problems with her husband. Carol asked management at the supermarket for a transfer to another department to get away from Mike. She also complained of his sexual advances. However, she was not allowed to transfer to another department. A few weeks later, Carol was approached by a manager in the parking lot on her way into work and told not to clock in and not to come into work because she was being fired. Carol has been unable to find a job since then.
42 Jane and Smith Glass Factory Jane worked at the Smith Glass Factory. Jane worked in the office as a data entry clerk. She began dating John who also worked at Smith Glass Factory, in the production plant. Their romance got off to a great start and things were going very well. However, a few months later, Jane got bored with John and started seeing Jim, who also worked at Smith Glass Factory, on the side. One day, Jim sent Jane flowers for her birthday. Word got around and John found out that Jane had been cheating on him. John became very upset and angry, stormed into the office and started yelling at Jane. He picked up the flowers and threw them against the wall, shattering the glass vase. He would have punched Jane but co-workers stepped in and stopped him. John apologized to Jane and told company representatives that he would never behave that way again. However, that evening, John followed Jane home to confront her about her relationship with Jim. Another altercation ensued at Jane’s house on her driveway. The neighbors saw what happened and called the police. The police came and John was arrested. The next morning, Jane went to work and she received 10 voicemails on her office phone, all from John, including some threatening messages. Jane immediately informed her manager about what happened at her home the night before and about the 10 messages John had left. John never showed up for work that day. Jane was shaken up and scared. She wanted to take some time off to clear her head. The company gave her the day off. She was also afraid for her safety at work.
43 Diane and Center for Senior Citizens Diane was a victim of domestic violence. Her ex-husband abused her and her children and tried to kill her on several occasions over the course of 12 years. Diane divorced her husband, got an order of protection and relocated with her family. Diane worked at an assisted living facility, Center for Senior Citizens. Because of the abuse that they endured, Diane and her children obtained counseling twice a week. Diane was scheduled to work from 12 p.m. to 8 p.m., which was too late for her to make it to counseling. She requested a schedule change and her employer changed her schedule from 6 a.m. to 2 p.m. so she could leave work at 2:00 p.m., pick up her children, go home and feed them, and take them with her to a center where she and the children received counseling. Subsequently, Diane requested leave under VESSA. In writing to her employer, she stated that the reason for VESSA leave was to obtain counseling sessions. Her employer requested that she provide proof that she was getting counseling within one week. Diane provided a copy of the police report when her ex-husband attempted to find her at her former job about a year ago. She also provided the order of protection which was issued about one and a half years ago. Two weeks went by and the company still had not received any documents indicating that she had appointments for counseling. The company did not approve her VESSA leave request. Diane stopped going to work because she needed time off for counseling. Because Diane had not shown up for work, she was written up for “no call/no show.” Eventually, she was terminated for job abandonment.