Evidence for a Restraining Order against a Former Employee

Petition for Workplace Violence Restraining Order

Background

Oftentimes when people hear the words “restraining order,” they immediately think about a situation involving domestic violence. In reality, restraining orders are a tool that can be, and should be, used by individuals as well as businesses. California’s Code of Civil Procedure section 527.8 addresses this exact issue.

“(a) Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an order after hearing on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.” (Code of Civil Procedure section 527.8(a).)

Employers may secure a Workplace Violence Restraining Order as long as the employer is seeking to protect an employee who has suffered violence or a real threat of violence at the workplace. There are four requirements that must be met in order to prevail:

(1)   An employee must have suffered unlawful violence or a credible threat of violence from an individual;

(2)   The unlawful violence or credible threat of violence can be reasonably construed to have been carried out in the workplace;

(3)   The defendant’s conduct is not allowed as part of a labor dispute as protected by Code of Civil Procedure section 527.3; and

(4)   The defendant actions are not constitutionally protected activities.

Assuming your particular situation meets the criteria above, you will need to file a Petition for Workplace Violence Restraining Order. Along with this petition, you should include evidence to support your claims against the defendant. If your petition is successful, you will be granted a Temporary Restraining Order, and you will be given a hearing date.  At your hearing, you will have to present your evidence to obtain a more permanent restraining order against the defendant.

It is also worth noting if an employer has actual notice regarding potential danger to his or her employees and fails to act to prevent said danger, that employer may be liable for any resulting injuries to that employee (see Franklin v. The Monadnock Co. (2007) 151 Cal. App. 4th 252.) If you have legitimate information about potential injuries to your employees, do not wait to act. With that said, what kind of evidence can you use for a restraining order?

Inadmissible Admissible Evidence

Picture this: You, as an employer, are seeking a restraining order against a former employee who is harassing and threatening you and your employees. A current employee writes you a letter telling you this former employee said “someone is going to die for this.” Can you use this as evidence?

In most legal proceedings, the evidence described above is considered hearsay. Hearsay evidence is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated… Except as provided by law, hearsay evidence is inadmissible.” (California Evidence Code section 1200). In other words, any testimony from someone who relays evidence they heard from someone else is hearsay evidence. This kind of evidence is not admissible in court. In order to be admissible evidence, the testimony must come from the person who witnessed the evidence firsthand. However, as the Court of Appeal of California declared in Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal. App. 550, this is not always the case with restraining orders in the case of workplace violence.

On April 7, 2010, Kaiser Foundation Hospitals (“Kaiser”) fired Diane Younge-Barnes. About a month later, Younge-Barnes, along with her husband Jeff Wilson, came to Kaiser to visit their daughter who had recently given birth. When Younge-Barnes was told she was not allowed in the nurses’ station, Wilson began threatening the nurses and said he was going to “kill someone.” A few days later, Wilson and Younge-Barnes returned to the facility. Once again, Younge-Barnes was told she could not enter the nurses’ station when she tried to enter. This time, Wilson told the nurses he was going to “do something he would regret.” This began a series of threatening events by Wilson against Kaiser’s employees, which included threatening to kill someone and specifically naming an individual he was going to shoot. On June 26, 2010, Wilson was detained by police after making these threats.

When Kaiser sought a restraining order against Wilson, they included two declarations from their employees. Both employees said they had personal knowledge of the events described above. However, both of these declarations were unclear whether these employees were present at the incidents or, if not, how they obtained their knowledge of the incidents. In a typical court hearing, these declarations would be deemed hearsay, and thus inadmissible in court, but this was not the case.

Code of Civil Procedures section 527.8 addresses the issue of civil harassment in the context of workplace violence. Section 527.8, subdivision (f) specifically states that the trial court “shall receive any testimony that is relevant” at a hearing on petition filed pursuant to section 527.8. The court in Kaiser stated that “the plain language of this provision suggests that the Legislature intended to permit a trial court to consider all relevant evidence, including hearsay evidence, when deciding whether to issue an injunction to prevent workplace violence pursuant to section 527.8.” (Kaiser, supra, 201 Cal. App. at p. 577.) Furthermore, the court notes that Evidence Code section 1200 explicitly qualifies the inadmissibility of hearsay with “[e]xcept as provided by law.” In the case of workplace violence, that law is section 527.8. Therefore, the court’s evaluation of hearsay evidence pursuant to Code of Civil Procedures section 527.8 is consistent with Evidence Code section 1200.

The court concluded by stating, “…we conclude that the testimony that a trial court may consider in making a ruling on a petition pursuant to section 527.8 is not limited to nonhearsay testimony… Hearsay evidence clearly may be relevant, and if hearsay evidence is relevant, section 527.8 requires that the court receive it.” (Kaiser, supra, 201 Cal. App. at p. 578.)

Conclusion

Not all evidence is created equal, but in the case of workplace violence, evidence normally considered inadmissible can potentially be valid proof for your claim. This seemingly contradictory fact of evidence for petitions pursuant to section 527.8 is just one of the many unique dimensions of workplace violence proceedings. Takeaway: Get the best evidence you can for a restraining order hearing (videos, recordings, documents, and eye witness testimony), but realize also that other forms of evidence (even hearsay) may be admissible.

Disclaimer

This entry does not give specific legal advice about your specific legal problem. No text or graphic contained in this entry is to be or should be used or relied upon as legal advice. This entry does not create an attorney-client relationship. If you want specific legal advice about your particular legal issues, or if you want to create an attorney-client relationship, you need to retain the Law Office of Ron A. Stormoen by a signed written retainer agreement.