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Showing restraint: Ensuring worker safety with workplace protective orders

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in Employment Law,Firing,Human Resources,Leaders & Managers,Performance Reviews,Preventing Workplace Violence

The scene is, unfortunately, all too common: A disgruntled employee is terminated for poor performance. On his way out, he threatens his manager and co-workers. Fortunately, situations like this usually end with the terminated employee cooling off, filing for unemployment and getting on with his life. But what happens when the employee doesn’t let it go?

Workplace violence is a very real concern. Across the country, employers wrestle with the conflicting goals of respecting employees’ privacy while at the same time guarding them from aggressive or violent co-workers.

Workplace restraining orders

Indiana has taken a bold step toward protecting both employers and employees from credible threats of workplace violence.

Under Indiana Code 34-26-6, et seq., employers can petition Indiana courts for an order prohibiting workplace violence. The purpose of a workplace violence restraining order (WVRO) is to protect employees who are the targets of violence or threats of violence. The process for securing an order, while not complex, is intricate enough to warrant assistance from an attorney.

Issues to consider

Before pursuing a petition to prohibit workplace violence, consider the following issues carefully:

What is the nature of the threat? Has an employee actually suffered unlawful violence? If so, pursuing a WVRO should be a priority. If there has been no actual violence, assess the risk that violence will occur, and the nature of any threats made. In almost all situations, you should adopt a “better safe than sorry” approach to dealing with threats of workplace violence and move quickly to take preventive action.

Determine the source of the threat. It is important to determine the source of the threat against your workforce. While all companies have a duty to provide a safe working environment for their employees, there is an added sense of responsibility when the source of a threat of violence comes from (or can be traced to) the company itself. In such situations, immediate steps must be taken to protect workers from violence perpetrated by former employees.

Determine the target’s interest in protection. The likelihood of receiving a WVRO depends heavily on the willingness of the target victim to receive protection. If you determine that the threat of workplace violence is credible, and the target employee refuses to cooperate in the process of securing a workplace violence restraining order, seriously consider suspending the employee. While it sounds harsh, you must consider the well-being of your other employees who aren’t a part of the dispute. If the presence of a particular employee increases the risk to co-workers, you have an obligation (particularly when the target is uncooperative) to take steps to minimize the risk to the rest of your workforce.

How the process works

Once you decide to pursue a WVRO, you must prepare a petition seeking the restraining order on behalf of the target employee. (If several employees have been threatened, you must prepare a separate petition for each.)

You must include a brief description of the facts supporting the petition, as well as one or more affidavits signed by witnesses to the events described in the petition. Often, the target employee will sign off on the supporting affidavit, but other statements from witnesses—such as a supervisor or union steward—may be attached, as well.

Once you have prepared a petition, file it with the local court, which will generally issue a temporary restraining order (TRO) prohibiting any contact with the target employee, pending a subsequent hearing. Within 15 days of the issuance of the TRO, a hearing will be held on the request for a permanent restraining order. Both the employer and the person to be restrained may present evidence. If the court finds the threat of violence to be credible (or finds that violence has already occurred) it can order a permanent restriction on access to both the company and the target employee for a period of up to three years.

The practical impact

Of course, an order prohibiting contact will do little to stop a person determined to commit violence. However, the value of a restraining order is that it subjects the offending party to an immediate contempt-of-court citation, which can lead to jail time.

In addition, certain violations of the order by the restrained party can constitute a federal criminal offense—e.g., if he or she owns or uses a gun—potentially sending the restrained party to prison for up to 10 years.

While it is not a perfect antidote to workplace violence, employers facing a known threat should utilize I.C. 34-26-6-6 and pursue a WVRO to give added protection to their employees.

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