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The Retail Employer

 June 2007

New Virginia Statute Grants Leave to Employee Victims of Crimes

by David E. Nagle

On July 1, 2007, a new Virginia statute takes effect requiring that employers allow employees who have been victims of crime leave from work to be present at any criminal proceedings relating to certain crimes.  The statute, however, may have a much greater impact than most employers anticipate, because of the broad coverage extended by virtue of the expansive definitions used under the statute.

“Criminal proceeding” applies not only to a criminal trial, but to virtually all judicial proceedings that have any connection to the crime, from beginning to end: the initial appearance of the person suspected of committing the crime against the employee, any proceeding in which the court considers post-arrest release, any proceeding in which a negotiated plea is presented to the court, any sentencing proceeding or consideration of post-conviction release, as well as any and all proceedings relating to probation.

More significantly, for employers, is the broad definition of “victim” which applies under this statute, and therefore defines the class of employees entitled to leave from work. The class of employees covered under this law includes not only the specific individual who has suffered the physical, psychological or economic harm as the result of a felony or assault, stalking, sexual battery, maiming or DUI, but also (a) the spouse or child of such a person, b) the parent or legal guardian of such a person who is a minor, and (c) where the victim is physically or mentally incapacitated, or the victim of a homicide, then the statute also extends the protection afforded by this statute to the victim’s spouse, parent, sibling or legal guardian.

The new statute extends certain job protection to victims of crime, as part of a comprehensive effort by the legislature to recognize and protect victims of crime, and inform them of their statutory rights as victims of crime. Employers may not refuse to hire, discharge from employment, or discriminate against an individual in compensation or other terms, conditions, or privileges of employment because the individual exercises his or her right to leave work to attend a criminal proceeding.  Pre-existing Virginia law had prohibited employers discharging or taking other adverse personnel action against any employee summoned to jury duty or to testify as a witness in court.

The statute does, however, contain some consideration of the impact that this may have on an employer. Employers are not required to compensate an employee who leaves work under this statute (but salaried exempt employees should not have their pay docked for the absence). Furthermore, an employee taking leave under this statute must provide the employer with a copy of a form which the victim receives from police after being identified as the victim of a crime, and a copy of notices the victim receives of each scheduled criminal proceeding. Finally, the employer is entitled to limit the leave provided under this statute if the employee’s leave will create an undue hardship to the employer’s business (defined as significant difficulty and expense to a business, taking into consideration the size of the employer’s business and the employer’s critical need of the employee). Since the statute doesn’t specify and limit the relief available to an employee, and because the courts and juries are traditionally very protective of individuals in such circumstances, employers are at risk of being hit with very substantial punitive damages awards in the event of a discharge in violation of this new law.

David E. Nagle conducts seminars for members of the Retail Merchants Association, and has been retained by the Association to assist members through the Labor Law Information Program. David has advised and represented Virginia employers with respect to legal issues in the workplace for 25 years. Recently is with Jackson Lewis LLP, a firm with over 400 employment lawyers in 29 cities across the country. He may be reached at (804) 648-4077, or by email at nagled@jacksonlewis.com.

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Ensure Safety by Preparing for the Worst—Creating a Crisis Management Plan

There’s no doubt that the unexpected can happen at any time. Stories and images of school shootings, hurricanes and floods, disease pandemics, workplace violence, terror attacks and more fill the news. These tragedies can happen anywhere – at home or at work. But as difficult as it is to imagine what you would do if faced with a crisis on the job, it’s even worse to be caught in the middle of one with no plan for what to do. That’s why creating a workplace crisis plan is vital for any business owner.

Set aside some time this month to ensure the safety of your workforce and the future of your business by creating a workplace crisis plan. Here are some guidelines to consider when you create your plan.

Consider every potential scenario. Depending on your region, industry and work environment, each workplace will have different possible crisis scenarios. For example, costal regions should plan for hurricane threats. Industrial plants should establish guidelines for serious workplace injuries, plant fires or chemical leaks. The first step in establishing a comprehensive crisis plan is to seriously consider each potential issue that could arise. Then, you can create one comprehensive plan that will list special considerations for each potential crisis scenario.

Cover the basics. According to the U.S. Federal Emergency Management Agency (FEMA), the essential elements for any business’s emergency management plan include the following:

  • Designating leaders – Who will be in charge if a crisis strikes? You must decide beforehand who will take the lead if a crisis occurs, including a succession list in case top personnel are injured.
  • Selecting an offsite location – Establish a temporary base of operations in case your facilities are damaged and you need to operate elsewhere until the recovery phase.
  • Establishing communications procedures – This includes reporting to emergency officials such as the police or fire department, establishing a way for personnel to report an emergency, communicating with on- and off-duty staff members and their families if a crisis occurs, and telling clients, customers and suppliers if necessary.
  • Protecting health and safety – Before any crisis strikes, you should establish and communicate evacuation plans, routes and procedures, create safety and shelter zones for employees, and regularly conduct training on these policies.
  • Protecting property, facilities and data – Being proactive is the best way to prevent damage to your business. Many crises can be prevented by simply having policies and systems in place to protect your workplace in case of fire, flood or storm. Establish a regular time to conduct a safety audit to make sure you’re in compliance with state or provincial and federal regulations, along with industry standards.
  • Conducting community outreach – Often called “crisis communications,” this element of crisis planning helps your organization communicate with officials, emergency response organizations, the media and the public at large when an emergency occurs. Create a list of key contacts and put it in a safe place for your company’s leadership to access if necessary. When a crisis occurs, the media will call whether you have a communications or public relations professional on staff or not. Learn more about FEMA’s crisis communications guidelines here.
  • Restoring operations – In this step, you’ll need to create guidelines for processes such as repairing equipment, finding an alternative location, dealing with insurance, supporting employees and ensuring management continuity. Read more at FEMA’s guide to the recovery and restoration process after a crisis strikes.

Communicate your plan. The best crisis plans are those everyone in your workplace is aware of, from top management to first-day employees. Make sure everyone at your workplace has access to emergency planning details that are pertinent to their role. Regularly train employees who have specific roles in the crisis management process, and routinely update your plan to deal with turnover of roles, new potential issues and updated policies and procedures.

Planning ahead for a crisis may seem like a daunting, thankless task, but you’ll rest easier when you’ve done your best to prepare for the worst.  

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Mr. Lars Nordin at Lars.Nordin@ExpressPersonnel.com if you would like to be added to their distribution list.

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"That's the way we've always done it"

I am sure you have heard the definition for insanity – “Doing the same thing over and over again and expecting a different result.” As funny as that may seem there is a tendency to do just that in business. It is most often expressed in response to a question typically from a new employee asking, “Why do you do it that way?” If the answer is “Because that’s how we always have done it,” it may be time for you to re-evaluate.

Management can get a lot of comfort from professing “because that’s the way we always have done it.” When moments strike like this, red flags should go off in your head.

Find the time to rethink the logic for the process:

  • Maybe you make a note to evaluate it later.
  • Maybe you ask the employee how they would do it.
  • Maybe you put together a team to evaluate any and all business practices.

Frequently strategies change, so take the time to insure your procedures still support those changed strategies.

Do not feel that you have to have all the answers; utilize your entire management team. Brainstorm all the options that are available even if some seem off the wall. Think outside the box and encourage your team to do the same.

Saying, “ That’s the way we have always done it” may be a missed opportunity to hear a better way.

This article is reprinted with permission of Mike Dunleavey, mikedunleavey@iib.ws, Executive Associate - Business Support Center - Retail Merchants Association.

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