In 1994, the California Legislature passed the Workplace Violence Safety Act. The Act can be found at Section 527.8 of the Code of Civil Procedure. The Act provides that any employer (including public employers) whose employee has suffered violence or is faced with a credible threat of violence in the workplace, may seek injunctive relief on behalf of the employee prohibiting further violence or threats of violence.
The Act’s definition of “credible threat of violence” includes stalking and such activities as following an employee to or from the workplace, entering the workplace, following the employee during hours of employment, making telephone calls to the employee or corresponding with the employee by mail, e-mail or fax. It is not necessary that these activities occur over an extended period of time; the time period may be short so long as the acts demonstrate a “continuity of purpose”.
What can an employer do to protect one of his employees? Under the Act, an employer may first seek a TRO (temporary restraining order) against the perpetrator. The Court can grant a TRO–a stay away order–for up to 15 days. In order to obtain a TRO, the employer seeking it must show with substantial evidence that it is likely that harm will occur from future unlawful violence or threats of violence in the absence of the TRO.
If the perpetrator making the threats is a current employee of the petitioning employer, the court shall receive evidence concerning the employer’s decision to retain, terminate or otherwise discipline the individual. Upon a showing by clear and convincing evidence that the defendant engaged in unlawful violence or made a credible threat of violence, the court has the power to issue an injunction for up to 3 years prohibiting such conduct. The employer can if need be have the injunction renewed if application is made within 3 months before its expiration.
When granting a workplace violence injunction, the Court will also routinely order the perpetrator to turnover any firearms in his or her possession to law enforcement or to a licensed gun dealer. A defendant that violates a workplace violence injunction can face criminal charges
and imprisonment.
It is important to note that the Act does not expand or modify the employer’s duty to provide a safe workplace for its employees. The Act was intended to provide an additional remedy for the employer to use against workplace violence. A prudent, caring employer should never overlook this useful tool in protecting its workforce.
For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or daly@dalylawfirm.co.
