We have an employee who is very frightened by another person’s behavior. What can we do?
Any concern that an employee may raise in the workplace needs to be thoroughly investigated to determine the appropriate course of action to ensure that employees have a safe and healthy workplace, which is required of all employers.
Conduct an Investigation
The first step is to investigate why the employee is frightened. This may involve talking with the employee as well as other involved parties and witnesses.
If an employer determines that a restraining order should be sought to protect employees at work, it is good to involve your attorney in the beginning to help with the investigation and to prepare the legal paperwork.
While an employee may go to court and obtain a personal restraining order, California Code of Civil Procedure Section 527.8 allows an employer to go to court to obtain temporary and permanent restraining orders even though the employee has not filed for a personal restraining order.
The value of the employer obtaining a restraining order is that if the person has been served with the restraining order and appears on your premises in violation of the restraining order, then the police can arrest the person.
Obtaining a Restraining Order
In order to obtain a temporary restraining order, the employer must be able to establish by the evidence that there has been an act of violence or a real credible threat of violence.
An example of a real credible threat of violence is when a person is known to own a gun and tells the employee, “I am going to get my gun and meet you in the parking lot after work.”
An example of a threat that may not rise to the level of a credible threat of violence is when a person tells the employee, “I am going to continue to harass you until you do what I want.” Although that statement should be taken seriously and may give rise to a harassment claim, it is not something, absent other evidence, that would give rise to a credible threat of violence for a judge to issue a temporary restraining order.
In many cases, a judge issues temporary restraining orders the same day that paperwork is submitted to the court. The temporary restraining order will remain in effect pending a hearing on whether a permanent injunction should be issued.
Permanent restraining orders may be granted if evidence is shown at a hearing that there is a need for a permanent injunction and the permanent restraining order can remain in effect for up to three years.
While human resources representatives may be involved in the investigation, they are not permitted to sign the paperwork submitted to court because they are not owners of the company. Only owners and officers of a corporation or the company’s attorney may sign on a company’s behalf.
Consult an Attorney
In situations that involve either violence or real credible threats of violence, it is best to work with an attorney to ensure that your investigation is thorough and that the evidence submitted to a judge substantiates the immediate need for a restraining order.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.