What is a Workplace Violence Restraining Order?
A Workplace Violence Restraining Order is a court order protecting employees from unlawful violence or credible threats of violence at the workplace. These are also generally referred to as injunctions and they are issued in different types of cases. In a restraining order hearing, the parties are called “petitioner” and “respondent.” The petitioner is the person asking for the restraining order (the protected person). The respondent is the person responding to the allegation of harassment (the restrained person).
Who Can Get a Workplace Violence Restraining Order?
Workplace violence restraining orders must be requested by the employer on behalf of an employee or employees that need protection against unlawful violence or credible threats of violence against an employee.
Unfortunately, employees cannot ask for a workplace violence restraining order themselves. If an employee would like to file a restraining order, they would need to file one of the following types of restraining orders:
Domestic Violence Restraining Order: for protection from a current or former spouse, partner, boyfriend/girlfriend, someone previously dated or involved with in a romantic relationship, or close family member.
Civil Harassment Restraining Order: for protection from people such as neighbors, coworkers, roommates, or more distant family members.
Elder/Dependent Adult Abuse Restraining Order: for protection from people if the person abused is 65 years old or older or a dependent adult.
If you are unsure about which restraining order to obtain, contact Garcia Law Group for help.
What Does an Employer Need to Show to Get A Workplace Violence Restraining Order?
An employer must show with reasonable proof that:
• The employee has suffered unlawful violence;
• Or the employee has suffered a credible threat of violence;
• The unlawful violence or the threat of violence can be reasonably be construed to be carried out or to have been carried out at the workplace;
• The conduct is not allowable as part of a legitimate labor dispute; and
• The person accused is not engaged in constitutionally protected activity.
“Unlawful violence” is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.
“Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.
What Protection Can a Workplace Violence Restraining Order Provide?
If granted, a workplace violence restraining order can order the respondent (restrained person) to:
• Not contact the employee or employees, any member of the employee’s household, or other employees;
• Not go near the employee or employees, his/her children, other household members, or other employees;
• Stay away from the employee’s work, school, or the employee’s children’s schools; and
• Not own or possess a firearm.
When the court issues a restraining order, it goes into a statewide electronic information system known as CLETS (California Law Enforcement Telecommunications System). The information is made accessible to law enforcement and may have a significant impact on employment. Furthermore, a CLETS restraining order will show up on a background check.
How to File for a Workplace Violence Restraining Order?
Filing a request for a restraining order involves filling out official forms (located here) and filing those with the court. You may print these forms or obtain a packet from your local courthouse but they may charge you a fee. These forms may differ by county or by courthouse and other forms may be necessary in your jurisdiction. They include:
Note: if more than one employee require protection, then a request for each employee by must be filed.
You may also use Attached Declaration (MC-031) to include statements by the employee, witnesses, or the employer.
If the judge finds that the respondent did use or threaten to use violence, you may not have to pay a filing fee.
Where to file Restraining Order
Generally, you may file a request for a restraining order at the courthouse closest to where the alleged abuse took place. However, every jurisdiction is different so please check with your local courthouse. In Los Angeles County Superior Court, you can check the filing locator here to find out where you should file your restraining order.
Once you have filed your restraining order and paid a filing fee or obtained a fee waiver, you must serve the respondent at least 5 days prior to the hearing. You may obtain the services of your local sheriff’s office or hire a process server to serve the respondent. The forms to be served on the respondent include:
IMPORTANT: Once the respondent has been served, you must file a “proof of service” with the court. For additional information, read What is “Proof of Personal Service”? (WV-200-INFO) .
For filing proof that the respondent has been served, use the Proof of Personal Service (WV-200).
At the hearing, the Respondent is entitled to one continuance, for a reasonable period, to respond to the petition. This means the judge will allow the respondent to have more time to prepare if the Respondent asks for an extension. This extension of time only applies to the respondent. The petitioner may ask for more time but the judge is not required by law to grant the request. At the hearing, the judge will hear the petitioner’s allegations and consider the evidence submitted. The respondent may also submit evidence to fight the allegations of abuse. The judge will typically make his decision immediately after both sides have presented their case in chief.
Note: Guns and Firearms Restrictions on Restrained Person
A restrained person who is subject to either a Temporary Restraining Order (WV-110) or Workplace Violence Restraining Order After Hearing (WV-130), may not own, possess, buy or try to buy, receive or try to receive, or otherwise get a gun while a Restraining Order is in effect; unless the Court applies the firearm relinquishment exemption. If a restrained person violates this order, it can result in jail and/or $1,000.00 fine. A restrained person who owns, or has control of any guns or other firearms, must turn in all firearms to local law enforcement; or sell, or store the firearms with a licensed gun dealer in accordance with the order of the court. If the court makes this order, the restrained person must comply and then file Proof of Firearms Turned In, Sold, or Stored (leave blank)(WV-800). If the restrained person does not obey the court order, then can be charged with a crime. Read How Do I Turn In, Sell, or Store My Firearms? (WV-800-INFO).
Need help GETTING or FIGHTING a Workplace Violence Restraining Order?
Appearing in front of a judge by yourself can be an intimidating experience. Additionally, the laws involving a workplace violence restraining order are complicated. If you are facing a restraining order or need help obtaining a restraining order, Garcia Law Group is here to help you. We’ve handled hundreds of cases and represented individuals on both sides of the aisle. We are here to help you get through this stressful situation. Call now and speak to attorney Joel Garcia for a FREE CONSULTATION.
How to Fight a Restraining Order
Different Types of Restraining Orders