Employee leave requests require careful consideration
October, 2008
New Washington Supreme Court decision increases need for employer attention
In May 2008, we advised that the Washington State legislature passed a new law requiring employers to provide unpaid leave to employees who are dealing with domestic violence issues. That requirement remains in place. We also noted that the new law was spurred on by real events in which an employee alleged she was fired because she took leave related to domestic violence. The employee's case has been heard by the Supreme Court and, while the case does not change the Domestic Violence Leave Law, it does impact Employers' consideration of other leave requests. In particular, even if there is no law requiring that leave be granted, failure to allow leave for certain egregious situations may subject the employer to a lawsuit.
The Supreme Court's Decision. In Danny v. Laidlaw, the employee and her children experienced on-going domestic violence at the hands of the husband. The employee requested and was granted time off to move and to seek assistance in prosecuting her husband. Upon her return to work, the employee was demoted and then laid off (allegedly for falsification of payroll records). She then sued her employer claiming that the employer terminated her because she had requested time off to deal with the domestic violence issue and such termination was in violation of public policy.
Protecting domestic violence survivors. The trial court asked the Supreme Court to determine whether "Washington has a public policy of protecting domestic violence survivors and their families and holding their abusers accountable." The Court answered in the affirmative. As a result, the employer in Danny v. Laidlaw can be liable for firing the employee for taking leave – even though the Domestic Violence Leave Law was not in place at the time. The critical question will be "whether the employer fired the employee because the employee took necessary action to comply with public policy."
What Employers Need to Know. Employers of all sizes should carefully consider all leave requests. It is not sufficient to merely know the written laws that require leave. Some thought must go into why the employee is requesting the leave and whether it involves an especially serious situation or important issue, such as testifying at a criminal trial or intermittent leave for pumping breast milk.