Question: I run a small restaurant. Over the past month, one of my staff member’s ex boyfriends has shown up several times to yell at and threaten my staff member. Can I (and should I) do something about this?
Answer: Yes, you can (and probably should) do something about this. In California, employers have a duty to maintain a workplace that is free of harassment. This duty extends to harassment of employees by third parties, such as an ex-boyfriend. Failure to take reasonable steps to prevent harassment at work could result in liability.
An employer facing this situation has options. One important option to consider is a workplace violence restraining order. An employer may seek a workplace violence restraining order against a person who has stalked, harassed, or been violent or threatened violence against one or more employees at the workplace. Abuse at the workplace can include threats of violence that happen in person, over the phone, by mail, or online. It may also include following an employee to or from work during work hours.
The employer can ask for protection for an employee who has been the target of abuse. In addition, an employer may seek protection for volunteers, independent contractors, board members, and in coms cases, the spouses of employees. The restraining order may be against any person who has engaged in the unlawful conduct described above.
If the employer is a registered legal entity (e.g. a corporation or an LLC), an attorney must represent the employer in the restraining order case. Sole proprietors may hire an attorney or may represent themselves. The employee does not need a lawyer. The employee may be needed to testify in the case, but their only involvement is to be a witness for the employer’s case.
To seek a restraining order, the employer must complete, file, and serve several court forms. In most cases, the form packet should include declarations from employees who witnessed the conduct. Once the packet is filed and served, the judge will review the packet and decide whether to grant temporary protection based only on the completed forms. The judge will then schedule a court hearing for about 3-5 weeks later. If temporary protection is granted, it will be effective up to the date of the hearing.
At the hearing, the employer will need to present its evidence to justify the protection, and the responding party will have an opportunity to present its side. The judge will then decide whether to grant a long-term restraining order. The judge will normally grant the order if it finds that the employee suffered harassment, unlawful violence, or a credible threat of violence. If granted, the restraining order will be effective for up to three years. These orders may be rendered for an additional three years without a need to show further unlawful conduct. In other words, the orders could be effective for up to 6 years.
Workplace violence restraining orders are one piece to an employer’s overall strategy to take reasonable steps to prevent harassment. For example, an employer seeking a workplace violence restraining order may also need to update its workplace violence prevention plan and conduct training on workplace violence incidents. Employers with questions about workplace violence restraining orders should contact their legal counsel.