...And Staying Out!

By Diane Cadrain Aug 1, 2002
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August 2002, HR Magazine Using restraining orders can be an effective and proactive way of preventing workplace violence.

The stories come from all over the country. Sheryl, an HR manager in the state of Washington, was terrified when an employee bragged to co-workers that he planned to torture and kill her. Meg, an HR manager in Virginia, recalls the time an angry spouse followed an employee into work after an explosive confrontation at home. Jay, an attorney in Maryland, tells of an employee who became angry over a performance evaluation and began stalking co-workers on the highway. Ellen, the director of a shelter in Colorado, talks about dangerous spouses with a history of violence who harassed staff members in an effort to find their partners.

Each year, nearly 1 million employees become victims of violent crime at work, according to the U.S. Department of Justice. When violence threatens from angry domestic partners or disgruntled employees, HR managers want to use every tool available to protect themselves and their employees. One of the most powerful is a court restraining order barring an aggressor from the workplace.

Restraining orders can be very effective devices, and HR managers should know where to get them, what they do and how they’re limited.

The State Angle

Restraining orders are creatures of state law and, as such, vary widely from one state to another on a variety of issues, including whether:

  • Employers, or only abuse victims, may obtain them.

  • They may be used against disgruntled employees, or only against domestic partners or family members.

Currently, nine states (Arizona, Arkansas, California, Colorado, Georgia, Indiana, Nevada, Rhode Island and Tennessee) have laws allowing employers to obtain temporary restraining orders on behalf of employees who might be accosted at work by potentially dangerous individuals, such as a stalker or abusive spouse.

Even in states that do not formally grant employers the right to obtain temporary restraining orders, there’s room for a skilled advocate to convince a court that the workplace is within the zone of harm emanating from an angry aggressor.

“No one wants to be the judge who turns down a petition for a protective order—and someone gets shot,” says Brett Painter, an attorney with the Denver law firm Davis Graham & Stubbs, who has seven years experience in seeking restraining orders.

This article gives an overview of restraining order laws, how to use them and what they require. For more information on the laws in your state, including whether employers may seek orders, contact an expert in employment law.

Background

Restraining orders are court documents ordering someone to stop certain behavior, such as threats or stalking. There are two varieties: temporary and permanent.

Temporary restraining orders, effective for up to a week, usually are issued within a few days and provide immediate relief. Before a temporary order lapses, an employer or victim should seek a permanent restraining order. Be aware that some states automatically set in motion the process for obtaining a permanent restraining order; in others, it is up to you to initiate the process.

Permanent restraining orders may last indefinitely, or for a few years with the possibility of renewal, depending on state law.

Who can get one? Victims of abuse, their families and, depending on the state, anyone who can show they’re in imminent danger of unlawful violence. As mentioned previously, some states have given employers the explicit right to seek this remedy.

What do they do? If the court grants a restraining order, it may bar the aggressor from:

  • Entering the workplace.
  • Following an employee.
  • Contacting the employee by any means.

Many state protective order statutes also allow the court to grant “any other relief necessary” for protection, tailoring an order to a specific situation.

What are their limitations? “It’s only a piece of paper, but it’s a piece of paper with criminal consequences,” says Jennifer Corrigan, public policy director of the Colorado Coalition Against Domestic Violence. “It’s a person with authority making a statement that the perpetrators are risking criminal liability if they continue to do what they’re doing. It’s definitely a deterrence.”

Do they make aggressors angrier? “It’s not something you want to do arbitrarily because you don’t want to irk anyone,” says Kaye Palmer, PHR, HR manager for the city of Hendersonville, Tenn., and former president of the Society for Human Resource Management’s mid-Tennessee chapter.

“It’s always a balance to decide whether getting an order will just make the aggressor angrier—and that depends on the facts and circumstances,” says Denver attorney Painter. But, he adds, “On balance, it’s usually the advisable thing to do.”

Where do you get one? First, find the court that has jurisdiction over the issue. State laws vary as to whether you should use the court in the area where the aggressor lives, where the victim lives, where the workplace is located or where the threatening behavior took place.

“With a few phone calls, you can get to the right court and find out about the procedures and paperwork,” says Painter. “It’s a pretty user-friendly process. But even though you can use the system on your own, I’d advise you to seek a lawyer. It’s much more effective to have skilled representation.”

What do you have to show? Temporary restraining orders require less evidence than permanent orders and generally need only a showing of “reasonable” proof that someone has suffered either unlawful violence or a credible threat of violence.

To prove that, the employer or victim must show an incident or a pattern of behavior that serves no legitimate purpose and that causes a reasonable person to fear for his or her safety. Such behavior might include, for example, following an employee to or from work, entering the workplace inappropriately or communicating with the employee in a threatening or harassing manner by phone, e-mail or fax.

To obtain a permanent restraining order, you must attend a hearing. Be aware that the aggressor may be entitled to attend this hearing to contest the order. If so, the court will hold a mini-trial, listening to testimony from both sides.

“There’s a tremendous advantage to having a lawyer at this point,” says Painter. “A lawyer knows court procedures and the rules of evidence and will dramatically improve your chance of winning.”

The court will issue a permanent order if it finds clear and convincing evidence that the aggressor engaged in or threatened unlawful violence.

Is there a cost? Some states waive the fees for restraining order cases involving violence. Others charge fees. In Colorado, Painter says, there’s a one-time $33 filing fee for a temporary restraining order; additionally, some courts in the state charge fees of $2 to $5 for restraining order packets, including the court forms.

Are restraining orders easier to get than they were in the past? “Over the last few years, because of all the media coverage of workplace violence, it’s more likely that a restraining order will be issued if you have a real threat,” says Painter.

What are the penalties for violation? It’s a criminal offense to violate a restraining order, with a penalty of fines, imprisonment or both. Also, the aggressor may face other criminal charges, such as trespass, assault and battery.

Why should an employer seek a restraining order if the victim can get an order barring the aggressor from the workplace? “Sometimes employees whose spouses or significant others have made verbal or physical attacks are unwilling to take out restraining orders,” says Jill Stem, SPHR, vice president and general manager at Lee Hecht Harrison in Memphis.

In a previous position as an HR professional at a Tennessee drug distributor, Stem found that employees “would be fearful of the backlash. They would come to me and tell me that they feared for their own safety and everyone else’s. Other workers would come in, too, and tell me they were scared.”

If the employer goes to court for an order, it takes the pressure off the victim and protects others in the workplace at the same time.

“And it gives employees a strong signal that you care about their safety,” says Stem.

Other Options

What can HR do in a state that doesn’t allow employers to seek restraining orders? If there are specific victims in the workplace, such as a supervisor who has angered an ex-employee or an employee with an angry spouse, try to get those individuals to take out a restraining order in their own name.

“We urge the employee to get a restraining order,” says Meg Wagner-Diggs, an HR manager with a newspaper in Virginia, a state that doesn’t have an employer-specific restraining order law. “We tell her about our EAP [employee assistance program], tell her to come to us if she needs anything.”

If the employee won’t get a restraining order because of fear of reprisal, then the employer, through its counsel, has options:

  • Report your concerns to local police officials and keep them updated.

  • Depending on the wording of the state restraining order law, try to convince a judge that the company is within the zone of danger from an aggressor, even if your state law doesn’t mention the workplace.

“Show the court how the statute should be read,” advises Jay Fries, a Baltimore attorney who serves as chair of the Employee Relations Commission of the Maryland Chamber of Commerce. “Tell the court what happens if an order is denied.”

Diane Cadrain is an attorney and has been covering workplace legal issues for 19 years. She is a member of the Human Resource Association of Central Connecticut.

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