Can I fire an employee charged with domestic abuse?

November 4, 2014

There is no cut-and-dried correct response to firing an employee charged with domestic abuse, but, there are a number of factors dermatologists should first take into consideration before taking any adverse employment actions against workers embroiled in domestic violence disputes.

Dr. Derm has a 30-year-old medical assistant who has worked with him for five years. She is under contract and can be terminated within 90 days for almost any nondiscriminatory reason and immediately for “cause.” Reasons of termination for cause include conviction of a crime.

READ: Defend your practice against HIPAA violations

Three months ago, the medical assistant was arrested for beating up her boyfriend with a frying pan. He had numerous cuts and bruises, as well as a broken nose. He nearly lost consciousness. The story was all over the papers in the small town in which Dr. Derm practices. The photos on the Web were frightening. Every time there was mention of the story, Dr. Derm’s name was also discussed as being the employer.

Dr. Derm was very concerned about the negative impact such an employee would have on his practice. He terminated the employee within 48 hours of her arrest. The employee is now waiting for trial and has filed a lawsuit against Dr. Derm for wrongful termination. Did he wrongfully terminate the employee?

Next: Case precedent

 

Case precedent

In the wake of the NFL’s Ray Rice scandal - and more recent domestic violence issues - many employers are asking the same question: Can an employee who’s committed domestic violence be fired? There has been much recent discussion over this issue. The general consensus is that there is no cut-and-dried correct response. There are, however, a number of factors dermatologists should first take into consideration before taking any adverse employment actions against workers embroiled in domestic violence disputes. The No. 1 issue is: Has the employee been convicted?

READ: Can my text to a parent lead to a HIPAA violation?

There’s a big difference between being arrested/charged/accused and actually being convicted - and as is also true with most background screenings, one might want to avoid acting on the former - even though there may be bad publicity associated with this.

The focus should be whether the person has been convicted.

Without a conviction, a physician could open himself up to a wrongful termination suit if the employee was accused of or charged with domestic violence. The tricky part here, of course, is that most employers don’t run thorough background checks on existing employees. Dr. Derm only knew about his current employee because of the local press coverage.

NEXT: Workplace risk

 

Workplace risk

The next question that arises is whether there is a current workplace risk in having this employee on staff - irrespective of the publicity issue. What is certain is that Dr. Derm could open himself up to a wrongful termination suit if he can’t directly tie the domestic violence incident back to a specific workplace risk. Termination of the employee becomes that much more difficult if the offender is a good performer, co-workers don’t feel at risk, and the employee’s spouse does not work in the office.

The situation might be different if the abuser is in the public spotlight - as a face of the dermatology practice. If that were the case, it becomes safer to let the employee go - particularly if the person is working under an agreement putting strict prohibitions on offensive behavior.

READ: Physician liability for the actions of midlevel providers

At that point, since the person’s actions are likely eroding your brand, it becomes much easier to apply the “workplace risk test.” That is questionable with Dr. Derm’s situation in which an unknown medical assistant has been accused of the crime. 

This situation would be totally different if a person convicted of domestic violence is one of the people you’re asking employees to look up to. Keeping this person at an administrative level could also erode the reputation of the office. That could be grounds for making the argument that the person poses a threat to your business.

In the end, despite the poor publicity this incident has brought to Dr. Derm’s practice, he would have been wise not to terminate his employee until and if she was convicted of domestic abuse.