What Is a Workplace Violence Restraining Order?
Under California law, courts can make orders to protect an employee from suffering unlawful violence or credible threats of violence at the workplace.
The court can order a person to:
- Not harass or threaten the employee;
- Not contact or go near the employee; and
- Not have a gun.
A workplace violence restraining order must be requested by an employer on behalf of an employee who needs protection. The court order can last up to 3 years. The order can also protect certain family or household members of the employee and other employees at the employee’s workplace or at other workplaces of the employer. These orders will be enforced by law enforcement agencies.
Who Can Get a Workplace Violence Restraining Order?
An employer can obtain court orders prohibiting unlawful violence or credible threats of violence against an employee. The workplace violence laws differ from other California laws that allow victims of violence or threats of violence to ask the court for these orders themselves.
Employees CANNOT ask for workplace violence protective orders. If they want to protect themselves, they can ask for a different type of protective order on their own, such as:
- Domestic violence restraining order (can be used to ask for protection from people he or she was involved with romantically at some point or close family members).
- Civil harassment restraining order (can be used for protection from neighbors, roommates, coworkers, or more distant family members like cousins, uncle or aunt, etc.).
- Elder or dependent adult abuse restraining order (if the person being abused is 65 or older, or a dependent adult).
If you are the employee and you are not sure what kind of protective order you should get, talk to a lawyer. Also, your court’s self-help centermay be able to help you. And your local legal services offices may also be able to help you or refer you to someone who can.
What Must the Employer Show to Get a Workplace Violence Restraining Order?
For an employer to get an order under this law there must be reasonable proof that:
- The employee has suffered unlawful violence (like assault, battery, or stalking) or a credible threat of violence;
- The unlawful violence or the threat of violence can reasonably be construed to be carried out or to have been carried out at the workplace;
- The conduct is not allowable as part of a legitimate labor dispute; and
- The person accused is not engaged in constitutionally protected activity.
“Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. A “credible threat of violence” includes following or stalking someone, or making harassing calls or sending harassing messages by phone, mail, or e-mail, over a period of time (even if it is a short time).
What Can a Workplace Violence Restraining Order Do?
A workplace violence restraining order can order the restrained person to:
- Not contact the employee, any member of the employee’s household, or other employees;
- Not go near the employee, his or her children, other household members, or other employees no matter where they go;
- Stay away from the employee’s work, school, or the employee’s children’s schools; and
- Not have a gun.
Once the court issues (makes) the order, it goes into a statewide computer system. This means that law enforcement officers across California can see that there is a restraining order in place.
Effect of a Restraining Order on the Restrained Person
For the person to be restrained, the consequences of having the order against him or her can be very severe:
- He or she will not be able to go to certain places or to do certain things.
- He or she will not be able to own a gun or ammunition. (He or she will have to turn in, sell or store any firearms that he or she has and not buy a gun or ammunition while the order is in effect).
- The restraining order may affect his or her immigration status. If you are worried about this, talk to an immigration lawyer to find out if you will be affected.
If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.
Types of Workplace Violence Restraining Orders
Temporary Restraining Order (TRO)
When an employer asks a court for a workplace violence restraining order protecting 1 of its employees, the employer must fill out paperwork telling the judge everything that has happened and why the employee needs a restraining order. The employer can ask for a temporary restraining order (TRO) to be put in place, without a hearing or notice to the other side, until there is a court hearing. If the judge believes the employee needs protection, and the employer followed all proper court procedures, the judge will usually issue a TRO protecting the employee.
Temporary restraining orders usually last about 15 to 25 days, until the court hearing date.
“Permanent” Restraining Order (Restraining Order After Hearing)
Whether or not the judge issues a TRO, the clerk will set a date for a hearing on the employer’s request for a restraining order. At the hearing, the judge may issue a “permanent” restraining order. The restraining order issued at the hearing may or may not be the same as the TRO. The order is not really “permanent” because it can last only up to 3 years. But it can be renewed after that if the situation continues.
Criminal Protective Order or “Stay-Away” Order
Sometimes when there is a workplace violence incident (or series of incidents), the district attorney will file criminal charges against the person committing the violence. This starts a criminal court case. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing or threatening violence) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
The Restraining Order Process
When an employer asks the court to issue a workplace violence restraining order, the employer must file court forms telling the judge what orders it wants and why. What happens after the forms are filed varies a little from court to court, but the general steps in the court case are:
1. The employer wanting protection for the employee files court forms asking for the restraining order.
2. If a temporary restraining order is requested, the judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner.
3. If the judge issues (gives) the orders requested, he or she will first make “temporary” orders that only last until the court date. The court date will be on the paperwork. These temporary orders can include issues like:
- Ordering the restrained person to have no contact (including no phone calls or e-mails) with the protected person (and other protected people); or
- Ordering the restrained person to stay away from the protected person (and other protected people).
4. The employer will have to “serve” the person to be restrained with a copy of all the papers filed before the hearing date. This means that someone 18 or older (NOT involved in the case) must hand-deliver a copy of all the papers to the person to be restrained.
5. The employer, the employee, and the person to be restrained should go to the court hearing.
- If the employer does not go to the hearing, any temporary restraining orders that have been issued will usually end that day and there will NOT be a restraining order issued at the hearing.
- If the person to be restrained does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.
6. At the hearing, the judge will decide to continue the temporary restraining order, issue a different restraining order, or deny the requested order entirely. If the judge decides to issue a restraining order, it may last up to 3 years.
You do not need a lawyer to ask for (or respond to) a restraining order. BUT it is a good idea to have a lawyer. If the employer is a corporation, it MUST have a lawyer.
from California Courts