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Ray Rice and the NFL: Should your organization install a domestic violence policy?

September 18, 2014

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE 

Domestic violence has been much in the news lately, mainly because of the cases of National Football League star Ray Rice and several others involving other players that came to light in its aftermath. One of the byproducts of the coverage of these cases has been to expose the ambiguities of the NFL’s established policy on domestic violence and other off-the-field transgressions by players.

HR professionals cannot follow this story without asking themselves the question, “Should my organization have a formal policy on domestic violence or not?”

Football player Ray Rice, formerly of the Baltimore Ravens, was arrested for domestic violence and has admitted to hitting his then fiancé Janay Rice and then dragging her away. Thanks to a YouTube video of the incident, NFL commissioner Roger Goodell suspended Rice for the first two games of the season.

Then, Ray McDonald of the San Francisco 49ers was arrested for domestic violence.  At that point the league took the stance that anyone convicted of domestic violence would be suspended six games for a first conviction, and banned for life for a second one. The league suspended McDonald for six games.

Then a new video of the Rice incident, far more graphically violent than the first one, went viral on YouTube. A chastened Roger Goodell, the NFL commissioner, admitted that he made the initial decision in order to “protect Janay Rice” from being blamed for the incident. “I didn’t get it right,” he said, “Simply put, we have to do better.” The Ravens then cut Rice from their roster and Goodell suspended him permanently from the league.

In a database compiled by USA Today of football players’ arrests, domestic violence accounts for 85 (about 12%) of the 713 arrests of NFL players since 2000. These include Greg Hardy of the Carolina Panthers (who was convicted last week and is currently appealing) and Dez Bryant of the Dallas Cowboys.  And most recently, Adrian Peterson of the Minnesota Vikings was arrested for child abuse for disciplining his four year old child excessively. The Vikings immediately suspended Peterson but reinstated him earlier this week.

Based on the mistakes made in the Ray Rice case, the league came out with a tougher stance.  A new policy and memorandum was distributed to all teams.  The policy mandated a suspension of six games without pay, and a “longer suspension when circumstances warrant” for violations of the league’s Personal Conduct Policy regarding “assault, battery, domestic violence or sexual assault that involves physical force.” In addition, the policy mandates training on domestic violence and sexual assault for all NFL personnel, and a specific session on the policy to be run by every head coach with all his players. Copies of the policy will be included with all contracts.

Yet the NFL’s overall approach to disciplining employees for off-hour misbehavior is still amorphous,  particularly in the light of its policy on substance abuse. That policy requires a “violation of the law” (i.e., a criminal conviction) for the league to take action against the player. Arrest is not sufficient. If it were, Pittsburgh Steelers running backs Le’Veon Bell and LeGarrette Blount, who were arrested for possession of marijuana (and Bell also charged with DUI) would have been suspended.  Both are currently playing.  The team and league are waiting for resolution, and the likelihood is that no conviction will be made.

No one should disagree that domestic violence is a serious problem in the U.S. According to the National Coalition Against Domestic Violence, an estimated 1.3 million women are victims of physical assault by an intimate partner each year. Eighty-five percent of domestic violence victims are women. Most cases of domestic violence are never reported to the police. 

But the NFL exists in its own, rarified atmosphere. The fact that it has a complicated (and apparently rather flexible) policy on domestic violence does not, in itself, mean that all employers should have one.

Here are some factors an employer should consider before deciding to install a domestic violence policy or not:

  • In general, employers can legally defend disciplining or restricting employees’ off-duty conduct if a genuine business-related reason exists.
  • Employers can generally legally defend disciplining employees for inappropriate and/or illegal off-duty conduct that violates stated company policies or performance standards, has a negative impact on other workers’ morale or performance, or damages the employer’s reputation in the market or the general public.
  • They can also legally defend disciplining employees for off-duty conduct when necessary to comply with federal or state laws or minimize the risk of legal liability.
  • Despite the above, the National Labor Relations Board (NLRB) has been aggressively protecting employee off-duty behavior that can be construed as “protected concerted activity” under the National Labor Relations Act.
  • Typically, lies abound in domestic violence cases. A policy that allows the employer to take action before a legal conviction occurs is inherently risky. A subsequent defamation suit is one of those risks.
  • Domestic violence victims as well as perpetrators may have EEO protections. Front-line supervisors must be well trained in dealing with those victims on the job.
  • Incidents of domestic violence may not come to your attention when they occur, or at all. And violence at home could mean accompanying violence at work. Updating your background checks each year can reveal incidents of domestic violence that you would otherwise not find out about.

The long and short of it is that you can establish a policy against domestic violence. But you should not do it without discussing it with an attorney first. Certainly, training your employees on the dangers of domestic violence would be appropriate whether or not you install a formal policy on it or not.

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