By: Analiese Machado “Law Clerk” and Jizell K. Lopez
In California, an employer can seek protection on behalf of its employees and their family or household members against a person who has stalked, harassed, threatened, or been violent with one or more employees at the workplace by requesting a workplace violence restraining order (WVRO) under Section 527.8 of California’s Code of Civil Procedure. Section 527.8 was modeled on Section 527.6, which allows individuals to seek civil harassment restraining orders, but it extends that same protection to employers acting on behalf of their workforce. The legislature enacted it to address rising workplace violence by giving employers the ability to act, rather than leaving employees to handle the threat alone.
Before filing, the employer or collective bargaining representative must give each employee the opportunity to decline being named in the petition; one employee’s refusal does not prevent the employer from seeking protection for others. The petition must seek to prevent future unlawful violence or threats of violence at the workplace, and no filing fee applies where violence, stalking, or a threat is alleged. Unless the court shortens the timeline for good cause, the respondent must be served at least five days before the hearing with the petition, any temporary restraining order, and the hearing notice. Employers should check their local court’s requirements for the full list of forms.
The supporting declaration must satisfy one of two standards. The employer must show either reasonable proof that an employee suffered unlawful violence or a credible threat of violence, along with a showing that great or irreparable harm would result, or clear and convincing evidence that an employee suffered harassment, that great or irreparable harm would result, that the conduct served no legitimate purpose, and that the order is not otherwise prohibited by statute
Conduct warranting a WVRO can take many forms, including physical violence, threats made in person, online, by phone, or by mail, and following an employee to or from work. The most difficult question under Section 527.8 is usually whether a “credible threat” exists where there is no direct threat, since direct threats are relatively rare in the workplace setting. Courts look closely at the specific facts to decide whether the line has been crossed.
Two cases show how that line gets drawn. In County of Los Angeles v. Niblett, the court upheld a WVRO for an assistant fire chief after a mechanic, speaking to a secretary days after shouting profanities at the chief, referenced an incident where a firefighter had fatally shot a coworker. The mechanic never made an explicit threat, but the trial court found clear and convincing evidence that the chief was the “logical target” of the implied threat. In Technology Credit Union v. Rafat, by contrast, the appellate court reversed a WVRO where the respondent had become visibly angry and aggressive, made rude and inappropriate remarks, recorded a coworker without her permission, and pushed a pen toward her demanding she write down his number. The court found this conduct rude, aggressive, and derogatory, but not an implied threat of violence. Workplace violence is unpredictable, and the line between troubling behavior and a legally actionable threat is not always obvious. Employers who see warning signs at work shouldn’t wait for something to escalate before taking action. A WVRO is one of the few tools that lets an employer step in and protect employees directly, rather than leaving them to fend for themselves. Given how fact-dependent these cases can be, employers should consult with an experienced employment attorney early to determine whether a WVRO is the right path forward.
