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Restraining Orders - A Way to Protect Your Employees and Prevent Lawsuits

Introduction : Many people think about Restraining Orders and believe they are just for domestic disputes. In fact, employers have an affirmative duty to protect their employees and can get sued if they know of a dangerous condition and do not take preventative measures to ensure the safety of their employees. See below for a typical example of what can occur.

Question: Dear Attorney Cheng, I am an employer with about 20 employees. About four months ago, we learned that one of our employees was threatened by her husband because he said that my employee was having a relationship with another person at work. She came in crying and said that our restaurant was the only safe place for her. We believe that we should always provide a safe place for our employees. On one night, right before the restaurant was closing, her husband came in with a bat and looked for his wife. He ended up beating several of my employees including the wife. Now, I am being sued. I am totally confused. I thought Worker’s Compensation took care of injuries like this. Did I do anything wrong? David – San Francisco

Answer: Dear David, your issue is not uncommon among employers. Traditionally, worker’s compensation does cover you for a majority of work-related injuries. However, if the employer has actual notice of impending danger to his/her employees and intentionally does not act to prevent such injuries, it can be argued that the employer, and not just Worker’s Compensation, should be responsible for the resulting injuries. In my opinion, your business should have sought a restraining order against the husband as soon as you found out about the situation. There are four different kinds of restraining orders: 1) A domestic violence restraining order; 2) A Civil Harassment Restraining Order; 3) An elder or dependent adult abuse restraining order; and 4) a Workplace Violence Restraining Order. In your situation you would use the 4 th type of restraining order to protect your employees. A person can get a Domestic Restraining Order if a person has abused them and there is a close relationship with that person. For instance, they need to be married, registered domestic partners, divorced, separated, dating, or used to date, live together, related, or have a child with that person. A person can get a Civil Harassment Restraining Order if they suffer harassment by someone who is not close to them. Harassment is violence, a threat of violence, or actions that really scare, annoy or harass, done on purpose and for no good reason. Civil harassment order can be used to protect from roommates, neighbors, and co-workers. An Elder or Dependent Adult Protective Order can be obtained if the petitioner is 65 years or older or between 18 and 64 and certain disabilities and are victim of physical or financial abuse, neglect, abandonment or has received treatment that has physically or mentally hurt the person. Many employers are shocked to learn that there is a fourth category of restraining orders that was created specifically for them, to protect their employees. That is a Workplace Violence Restraining Order. One can ask for a Workplace Violence Restraining Order if: 1) One is an employer; and 2) The employer is seeking to protect an employee who has suffered violence or a real threat of violence at the workplace. Note that the statute for an employer to obtain a restraining order is completely different from other California laws that allow victims of unlawful violence or credible threats of violence to ask the court for these orders themselves. To get an order under this law, the plaintiff must be an employer. Under Labor Code section 350(a) an employer is defined as the following: Every person engaged in any business or enterprise in this state that one or more persons in service under any appointment, contract of hire, or apprenticeship, express or implied, oral or written, irrespective of whether such person is the owner of the business or is operating on a concessionaire or other basis. Under the relevant law for these types of restraining orders, employers can obtain court orders which last up to 3 years on behalf of their employees only and up to 15 days on behalf of employees and certain family or household members. Labor Code section 350(b) defines employees as: Every person, including aliens and minors, rendering actual service in any business for an employer, whether gratuitously or for wages or pay, and whether such wages or pay are measured by the standard of time, piece, task, commission, or other method of calculation and whether such service is rendered on a commission, concessionaire, or other basis. Unlike other employment laws, volunteers and independent contractors who perform services for an employer are also employees for purposes of this type of restraining order. An employer can seek protection under this law if: 1) an employee has suffered unlawful violence or a credible threat of violence from any individual; 2) The unlawful violence or credible threat of violence can reasonably be construed to have been carried out in the workplace; 3) The defendant’s conduct is not allowable as part of a legitimate labor dispute as permitted by Code of Civil Procedure 527.3; and 4) The defendant is not engaged in constitutionally protected activity. It is my recommendation that any employer that knows of an employee in danger should get a restraining order against the person that threatened the employee. At a minimum, this will prevent an argument as made above that the employer is being intentionally or recklessly negligent in their actions to protect the employee and similarly situated individuals. David, I do not have a definitive answer for you regarding your issue. Obviously, the case will ultimately be decided by judge or jury. However, the general rule of worker’s compensation is that work related injuries are covered. Still some courts have allowed the employer to remain responsible when they have intentionally or recklessly allowed their employees to be in a dangerous situation, thereby resulting in injuries. I wish you the best of luck.

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