Articles

Employers Beware: Workplace Violence is Not Just Your Employees' Problem

From backyards to schoolyards, churches to courthouses, newspaper articles and television screens regularly play out scenes of violence that leave us wondering if any place is really safe. Unfortunately, the workplace is no such haven. Indeed, acts of rage or retaliation are often acted out on the job, especially between co-workers or between employees and their supervisors. Customers and clients, as well as vendors and independent contractors are no exception. Along with domestic disputes that spill over into the workplace, uncontrolled anger is a major cause of death and injury in the workplace. Consider, for example, that some seventy percent of domestically battered women are also harassed by their batterers at work. Homicide, in fact, is the leading cause of death in the workplace for women.

This climate of potential danger not only puts employees at physical risk, but also may create a duty on the part of employers to intervene. Indeed, California's Labor Code requires employers to provide a safe work environment for their employees and to adopt safeguards and means which are reasonably adequate to the task. (Lab. Code, §§ 6400-6404.) Moreover, employers may not require or permit an employee to work in an environment or at a job which is unsafe. What this means is that if there is an angry ex-spouse or a threatening former client or an unhappy customer who is threatening one of your employees, whether in person, by phone, or through computer e-mail, employers must try to intervene. But how?

The "Workplace Violence Safety Act" (Code Civ. Proc., § 527.8) outlines at least one response. This statute authorizes employers to obtain a temporary restraining order and injunction on behalf of an employee where the employee has suffered "unlawful violence or a credible threat of violence" from an individual "which can reasonably be construed to be carried out or to have been carried out at the workplace." (Code Civ. Proc, § 527.8(a).)

Let's look at some of the operative terms:

"Unlawful violence" means an assault or battery, or stalking , but does not include lawful acts of self-defense or defense of others. (Code Civ. Proc., § 527.8(b)(1).)

A "credible threat of violence" is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose. (Code Civ. Proc., § 527.8(b)(2).)

The "course of conduct" refers to a "pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." It may include following the employee to or from work; entering the workplace; following the employee during work hours; calling the employee on the telephone; or corresponding with the employee by public or private mail, interoffice mail, fax, or computer e-mail. (Code Civ. Proc., § 527.8(b)(3).)

"Employer" and "employee" mean persons defined in Labor Code. 350. In this regard, an employer includes a federal agency, the state, a state agency, a city, county, or district, and a private, public or quasi-public corporation, or any public agency thereof or therein. An employee includes members of boards of directors of private, public, and quasi-public corporations and elected and appointed public officers, as well as volunteers or independent contractors performing services for the employer at the employer's work site. (Code Civ. Proc., § 527.8(d).)

Given the breadth of these definitions, the Workplace Safety Act is meant to encompass just about anybody who comes into an employer's scope of operations. However, the Act cannot be used to enjoin Constitutionally protected activities or freedom of speech. For example, employers cannot use this section to resolve labor disputes. Moreover, the statute may not be used to expand, diminish, or modify an employer's duty, if any, to provide a safe workplace. (Code Civ. Proc., § 527.8(k).)

When used as intended, the employer first petitions the court for a temporary restraining order with supporting affidavits, including one from an agent of the employer who can attest to the fact the employer believes one of its employees has suffered "unlawful violence or a credible threat of violence" by the defendant, and that great or irreparable harm would result to the employee if the court fails to intervene. If granted, the court's order usually stays in effect for up to 15 days. On a showing of good cause, the temporary restraining order may include other named family or household members residing with the employee.

Interestingly enough, the employee may ask that a defendant be restrained from approaching him/her not only at work, but also at his/her home or where the employees' children go to school, or other places where the employee or his/her immediate family may be in jeopardy. Even more interestingly, the employee need only specify that he or she wants protection around her home, without ever stating where they live. This, of course, is to keep information about one's address from the defendant who may not already have that information.

Service on Defendant.

The defendant must be personally served with a copy of the petition, the temporary restraining order, if any, and a notice of date, time and place of the hearing on the petition. Although defendant is usually supposed to be served within five days of the hearing, the court may shorten that time upon a showing of good cause--for example, you think defendant will go ballistic once notice of the petition is received and you want to let sleeping dogs lie as long as possible. The problem of trying to serve a defendant too late in the day, however, is that he may not be that easy to find. Most stalkers, for example, don't usually leave a mailing address. Or, you may be dealing with someone who is homeless or evading legal process.

The defendant, of course, may file a response that "explains, excuses, justifies, or denies" the alleged violence or threats of violence. The defendant may also file a cross-complaint. With or without a response from the defendant, a hearing must be held on the employer's petition within 15 days after the petition is filed. The judge must receive relevant testimony and make an independent inquiry. If the person allegedly making threats is a current employee of the entity seeking the injunction, the judge must receive evidence as to the employee’s retention, termination, or other disciplinary history. If the judge finds that there is clear and convincing evidence that the defendant engaged in unlawful violence or credible threats of violence, the court must issue the injunction for a period not to exceed three years. However, the plaintiff may apply to renew the injunction by filing a new petition within three months before the injunction expires.

Enforcement.

Plaintiff or the plaintiff's attorney must deliver a copy of any restraining order or injunction, or any modification or termination of these orders, by the close of the business day on which it is granted, "to the law enforcement agencies within the court's discretion" requested by the plaintiff. Each agency must make available information to law enforcement officers responding to the scene of reported unlawful violence or a credible threat of violence as to the existence and current status of these orders. In fact, once an order is entered on the court's computers, it usually reaches law enforcement within 24 hours, to be entered on its own computers.

Nevertheless, both the affected employee and a representative of the employer should maintain a certified copy of the court's order to show to police or security in case defendant violates its terms. Employers should also keep in mind that restraining orders are not like class actions. If more than one employee is at risk, the employer must seek a restraining order on behalf of each affected person. Employees' fears and complaints cannot be lumped together to be heard and disposed of all at the same hearing. While this poses certain burdens on the employer, it is far better to play it safe than to find one's own place of business in the news due to a potentially preventable act of workplace violence.