Workplace Violence Restraining Order
Restraining orders are challenging legal cases that require considerable know-how and experience to effectively contest or petition from a court. Restraining Order Attorney will help you at every point in the process to assure that you get the best legal representation in these trying times.
What is A Workplace Violence Restraining Order?
California law has various types of restraining orders. They may also be referred to as “protective orders”. These are civil in nature, meaning that a private citizen is asking (or “petitioning”) a judge to protect either themselves or another private citizen from some form of abuse and/or harassment. This is distinct from a criminal case, wherein the District Attorney, acting on behalf of the citizens of the state and its law enforcement, is trying a case whose outcome is to be determined by a jury.
A workplace violence restraining order is a specific kind of restraining order which is requested by an employer on behalf of their employee or employees. The request being made is to protect the employee or employees from:
Civil harassment, which is defined under California law as a pattern of behavior in which the person being restrained (the defendant) direct inappropriate, unwanted, intimidating, or disruptive comments and/or conduct at another person (the victim).Legally it is considered a pattern of behavior if there are two (2) or more instances of the same behavior occurring, particularly after the defendant has been told to cease such behavior.
Criminal harassment, which is delineated under California Penal Code, sections 646.9 (a) PC and 422 (a) PC. These are colloquially known as “stalking” and “criminal threats”, respectively. The crime of stalking consists of willful, malicious, and repetitive following and/or harassment that has the intention of making the victim exist in a state of sustained fear for their safety or the safety of anyone related to them. Making criminal threats is the crime of willfully communicating and/or saying that the defendant will inflict serious bodily injury and/or death on the victim.
Physical violence, which is the commission of such crimes as assault or battery. All restraining orders, including workplace violence restraining orders, are to varying degrees designed with the intention of protecting the victim from future or probable physical violence. This can include various forms of sexual assault.
A credible and/or probable threat of violence, which is a sufficient reason for a judge to grant a workplace violence restraining order. The actual infliction of a violent act is not necessary to trigger the deployment of a restraining order, merely creating circumstances in which physical or sexual violence is imminent and/or probable is cause enough for a judge to approve the employer’s petition for a workplace violence restraining order.
Any pattern of behavior and/or conduct that would cause a reasonable person to have sustained fear for their safety. In this context, a “reasonable person” is any person of sound mind who is capable of understanding their surroundings.
Notice that a workplace violence restraining order protects the victim from both civil and criminal harassment. However, as with all other restraining orders in California, the workplace violence restraining order remains a legal construct used in civil proceedings. It only becomes a criminal matter if the defendant is guilty of violating California Penal Code 273.6 PC, otherwise known as“violating a restraining or protective order”.In the event that this crime is committed, then the District Attorney takes over and will decide whether to proceed with a felony or misdemeanor charge.
Workplace Harassment Statute Versus General Harassment Statute
Workplace harassment is codified in California Code of Civil Procedure (CCP) §527.8. This states that an employer can act on behalf of their employee who has suffered civil or criminal harassment, violence, or the threat of violence at the place of employment to seek out a Temporary Restraining Order (also abbreviated as TRO) to protect said employee. CCP § 527.8 is closely related to CCP § 527.6, which is the general harassment statute. In fact the, most of the language is nearly identical except for a few key provisions.
First of all, the harassment must be occurring at the place of employment in order for a workplace violence restraining order to be requested. CCP § 527.8 (d) defines this place of employment as the state (as in the political entity), any agency working for the state (such as a governmental office or public works company) as well as any city, county, or district within the borders of the state. Furthermore, it also includes any publicly traded or private company (including a limited liability corporation or LLC) as well as any public agency or individual hiring anyone else to perform some form of work for them. All of these various entities are defined as “employers” by California civil law and are thereby granted the right to file a restraining order to protect an employee on their grounds.
CCP § 527.8 (d) further defines an “employee” as any person, paid or not, who renders services for and/or at the place of employment. This means that volunteers, interns, and independent contractors are also protected as well as aliens (the legal term for immigrants) and minors are also protected. Anyone doing any kind of work for any company or state agency is protected, from the board of directors all the way down to unpaid interns or remote workers. The explicit inclusivity of these provisions in the law is to ensure that no employee can be vulnerable to harassment or abuse.
It is crucial to note that the employer, and only the employer, may request the TRO from the judge in a workplace violence restraining order. If the victim themselves wishes to file a restraining order, then they must request a civil harassment restraining order (codified in CCP § 527.6). Civil harassment restraining orders are much broader in scope as they can deal with harassment or abuse that is happening anywhere, not just at the place of employment.
What Specifically Does A Workplace Violence Restraining Order Do?
As with any restraining order, it is essentially a mandate by the judge for a private citizen and/or entity not to engage in certain patterns of conduct and/or behavior. These patterns are crucial in getting the restraining order passed as most courts are reluctant to hand down any kind of TRO based on a single isolated incident. It is important that the victim prove that the offensive behavior in question constitutes repetitive behavior. In fact, both civil and criminal harassment are defined as instances of two (2) or more incidents that caused agitation, fear, and/ or anguish in the victim.
The judge can make general or highly specific provisos in the application of the restraining order. It depends on the particulars of the case and the kind of behavior being controlled. Most frequently, however, the judge may require the restrained person (the defendant) to:
Not contact the victim as well as any member of the victim’s family and/or other employees (such as colleagues or close confidantes of the employee in question). This is in order to protect anyone who may be related to the victim or who may have testified on behalf of the victim.
Not go anywhere close to the victim as well as any member of the victim’s family and/or other employees closely related to the victim. This is to cease any further harassment as well as discourage the possibility of intimidation of the victim. The judge will usually determine a precise measure of distance, like a hundred (100) feet.
Stay away from the place of employment or school of the victim, as well as any schools the victim’s children may attend.
Not own and/or buy any guns and/or ammunition. This is largely dependent on gun control laws in the state in question, though California has fairly stringent laws compared to other states.
Once the restraining order has been imposed, then it is entered into the computer database for all statewide law enforcement entities. This includes police officers on the city (municipal police department), county (sheriff), and state level (California Highway Patrol). This also includes probation departments and parole officers. This allows all these various parts of law enforcement to see that a restraining order is in place and allow them to enforce it if need be. This includes instances where they are called to the scene of a disturbance or, if the defendant is violating the order, then the victim or anyone else protected by the order may call the police in order to have them enforce it. Once a violation of an order has been committed, it becomes a criminal matter.
However, there are limits to what the courts can control. Subsection (c) of CCP § 527.8specifically protects the constitutionally protected rights of any employees who are engaged in picketing or labor disputes. This is to discourage the use of workplace harassment restraining orders to silence dissenting voices or attempts at unionization. This is also to specifically protect whistleblowers from being silenced in the workplace. For example, an employer may file a restraining order on behalf of an employee to silence an alleged harasser when in fact they were only exercising their constitutionally protected right to organize labor and/or be a whistleblower in regards to any malfeasance in the company.
Furthermore, employers may request the restraining order to protect an employee from retribution from another employer within the organization. That is to say, the employer requesting the restraining order does not need to be the direct supervisor or colleague of the employee in question; it can be any entity within the organization who wishes to protect said employee from mistreatment and/or abuse. For example, Human Resources document various forms of abuse and/or harassment precisely so that they may then have ample evidence to request a restraining order from the judge to protect an employee. This is usually the approach taken in sexual harassment cases.
What Does The Employer Have to Present to the Judge to Get The Restraining Order?
Restraining orders are determined by the judge and no one else. Additionally, judges are generally more willing to err on the side of caution and be overzealous in issuing restraining orders. This is because if a victim of abuse gets seriously injured or even killed by their abuser and it is later revealed that the judge denied the restraining order, then the political consequences could be dire for said judge. However, if the judge mistakenly imposes a restraining order on a defendant who does not deserve it, then that defendant may always appeal the ruling and/or wait until the restraining order expires. Essentially, the stakes are much lower for the judge to just approve the majority of restraining orders that come across their desk.
The burden of proof to get a TRO is much lower than what is necessary in a criminal court of law. In criminal proceedings, everything must be proven “beyond a reasonable doubt” and must be deliberated and agreed upon by a jury. In order for an employer to get the restraining order under California Code of Civil Procedure (CCP) § 527.8, they must present “reasonable proof” that:
- The harassment, violence, and/or imminent threat of violence occurred in the place of employment or in all likelihood will occur in the place of employment. This is the single most important factor because if it does not occur in this venue than a broader civil harassment restraining order should be sought by the victim.
- That the employee in question has suffered criminal harassment (stalking or threats), civil harassment (sexual harassment), and/or physical violence (assault, battery, sexual assault) as well as probable, imminent, and credible threat of said violence occurring.
- That any of the above behaviors are repetitive in nature, as in two (2) or more instances of unlawful conduct.
- Any pattern of behavior and/or conduct is not allowed under the confines of a legitimate labor dispute.
- The defendant is not engaging activities (labor union organizing or whistleblowing) which are constitutionally protected.
Any threat that is imminent or credible is defined as one that would cause any reasonable person to be in a state of fear for their safety or the safety of their family. Various parts of California civil law adhere to what is called the “reasonable person” standard, whereby any person of sound mind would feel the same way about the harassment or possibility of violence. Furthermore, a credible threat is deliberately communicating something or acting in a way (threatening gestures or body language) that would cause a reasonable person (“reasonable person” standard) to fear for their safety or the safety of their family. These credible or imminent threats can include the crime of stalking as well as using virtually any form of communication (phone, email, text message, etc.) to put the victim in a state of fear.
It is crucial to note that the employer does not have to tell the judge that violence has already happened; merely the imminent possibility of violence is enough to have the judge issue a TRO.
How to File A Workplace Restraining Order
This process follows the same particulars as other restraining orders. For example, if the police are called to the place of employment, then they will request the Emergency Restraining Order(ERO) from the judge. This is exceedingly rare and most workplace violence restraining orders do not start with an ERO. If they do, however, this initial ERO will expire after seven (7) days.
Following that is the Temporary Restraining Order (TRO) which is requested by the employer on behalf of the employee. It must be filed with the relevant paperwork in the county superior court where the alleged harassment is taking place (and the place of employment is located). If the judge approves the TRO, then it is usually good for thirty (30) days after which time a hearing for a Permanent Restraining Order (PRO) is held. This is a deliberation held in front of the judge in which both sides may retain legal representation to present their respective cases.
Because of the complexities of restraining orders and civil codes versus criminal laws in California, it is prudent for both sides to have adequate legal representation at this juncture. If the victim fears for their safety or has credible evidence that physical violence is imminent, then an attorney representing them will help bolster their case in front of the judge. Conversely, if a defendant is being unfairly targeted and needs to contest or even appeal the imposition of a restraining order, then an attorney representing them will help them beat the order. A judge can approve a workplace violence PRO for up to three (3) years.