By Christopher Truxler & Nicole Baarts

Seyfarth Synopsis: Workplace violence is no laughing matter. Although California law arms employers with strict laws to prevent workplace violence, no one wants to find themselves petitioning a court for emergency injunctive relief. Instead, employers should foster healthy workplaces and monitor early warning signs in order to address threats of violence before it is too late.

“If I had a gun with two bullets and I was in a room with Hitler, Bin Laden, and Toby, I would shoot Toby twice.”

Popular culture is rife with amusing expressions of office tension that can provide healthy relief to real world frustration. But as comical as some might find the antics of The Office’s Michael Scott, no one wants to witness these sort of threats in person. Although California law arms employers with strict laws to prevent workplace violence, to best protect the workplace, employers should proactively manage the possibility of violence rather than waiting for a threat to appear.

California Civil Procedure Code section 527. 8 defines workplace violence as assault, battery, or stalking, and permits employers to obtain a restraining order against “any individual” who makes a credible threat of violence that can reasonably be construed to be carried out at the workplace. It also empowers employers to obtain a court order requiring those who threaten violence to temporarily turn their weapons over to the police or sell or store their weapons with a licensed gun dealer. And if a restrained person violates the court’s temporary order, the District Attorney may press criminal charges.

But let’s face it: no one wants to get to this point. Luckily, there are several things employers can do to manage workplace violence before everyday frustrations snowball into a credible threat of violence.

“At least we care enough about our employees that we are willing to fight for them.”

First, implement a companywide workplace violence policy. According to the Bureau of Labor Statistics, over 70 percent of U.S. workplaces lack a formal policy that addresses workplace violence. Without guidance from employers on how to address troublesome coworkers, employees may unwittingly escalate the threat of violence by responding on their own. The company should maintain an environment that minimizes isolation and resentment and that fosters open communication.

Second, be on the lookout for early warning signs and encourage employees to report threats or symptoms of violence. These signs may include a recent life- or mind-threatening illness, expressions of paranoia or persecution, and the deterioration of workplace friendships. Most of all, listen to your employees. If they bring a threat posted on social media to your attention, ask Human Resources to investigate. And be sure to address and document problematic behavior as it occurs.

Third, if a credible threat is made, immediately alert security or the police, collect all relevant evidence, and seek legal advice to assist with an appropriate response, which may include petitioning the court for a temporary restraining order. At the same time, ask Human Resources to investigate (if HR has not already done so) and consider retaining an outside firm to conduct an independent threat assessment. Typically, this process involves an independent investigation into the suspect as well as a workplace inspection to identify points of vulnerability, such as unmonitored entrances into the workplace. An independent threat assessment may reveal that the suspect does not pose a credible threat. On the other hand, the assessment may reveal that serving the suspect with court papers may increase the risk of violence. Conducting a thorough threat assessment should allow the employer to put in security measures by the time any temporary restraining order is served.

Fourth, remember that workplace violence restraining orders can also protect more than the workplace and extend to threatened employees’ homes, family members, cars, and even their children’s school.

Workplace Solutions: Protective orders provide an invaluable defense to credible threats of workplace violence; but employers should proactively manage the specter of workplace violence before it occurs rather than waiting for a legitimate threat to emerge. Many incidents of workplace violence are preventable (or at least controllable) through the implementation of company policies and by remaining aware of possible warning signs. If you have any questions about workplace violence, we recommend that you speak to your favorite Seyfarth attorney, as we are well experienced in this area. We hope you never need a restraining order. But if you do, we’ll guide you through what can be a nerve-wracking experience.

Edited By: Coby Turner

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Introduction: We are posting our colleagues’ California Peculiarities Employment Law Blog post on workplace violence. While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely. For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause. Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared — such as where one employee makes threatening statements about a co-worker/manager. But where the employer/employee has obtained a restraining order, the police are more likely to intercede.

By Christopher Im and Minal Khan

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.