California Workplace Violence Restraining Orders: New Protections Take Effect in January 2025

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Karen Tynan: Hello, everyone, and thank you for joining us for the Ogletree Deakins podcast. My name is Karen Tynan, and I’m a shareholder in the Sacramento California office and Co-Chair of the Workplace Violence Prevention Practice Group here at Ogletree. Here today with me is a fellow member of that practice group, a founding member, Amy Bianchini. She is a San Diego shareholder, so we’re in very different areas of the state, but we’re talking about California workplace violence restraining orders. This is an important topic for California employers. So, let’s go. So, Amy, can you tell us a bit about workplace restraining orders?

Amy Bianchini: Sure. So, I started working with a shareholder in our San Diego office who had a client who regularly needed help with these restraining orders based on the type of business that they were engaged in, and I started doing those with another associate who ended up moving in-house. But once I had experience with a few of those restraining orders, I was able to volunteer for other shareholders in other offices when they had clients in California who needed help with restraining orders.

Karen Tynan: I think based on our conversations, you have a pretty good batting average, don’t you?

Amy Bianchini: I do. I have not lost a restraining order yet. When we go into these restraining orders, I really try to advise clients on when it makes sense to file a restraining order and when it doesn’t make sense to ultimately file them. But the laws are changing on these, so it’s important for employers to really start thinking about these as the law changes and as they actually will become easier to obtain in the future.

Karen Tynan: Okay. Well, awesome. So, you mentioned the laws, so what laws, statutes, regulations are we actually talking about when we discuss these California workplace violence restraining orders?

Amy Bianchini: We’re primarily talking about California Code of Civil Procedures, section 527.8, which allows an employer to seek a restraining order on behalf of an employee. And there are also other very important laws that come into play depending on your specific restraining order. In particular, there’s a case involving a large healthcare provider which talks about the type of evidence that can be admissible in these restraining orders, including hearsay evidence. And so, these cases are actually very, very important to track down depending on your restraining order and the considerations that the employer will need to make in terms of getting in the evidence that they need to get into the restraining order proceedings.

Karen Tynan: Okay. So, you’ve talked about how the law applies to it. Can we really get basic here and tell me who can ask for a restraining order? How do they ask for it? What is this real mysterious procedure? Explain it to us.

Amy Bianchini: Absolutely. An employer can seek a restraining order on behalf of their employee, and what that means is that an employer under their corporate entity name can file for this restraining order, but they have to identify an employee or a protected person on behalf of who this restraining order will protect. And so, an employer cannot just go in and file and fail to identify anyone on that restraining order. They actually have to identify an employee or a protected person under that order. And that order can include several employees, including the employee’s, immediate family, including minor children, spouses, or people living in the household with them.

Karen Tynan: Okay. So, you answered the question that was in my mind. So, it could be for a single employee, a worker, Jane Doe, or it could be for more than one employee in the workplace. Is that right?

Amy Bianchini: That’s right. I’ve helped employers file restraining orders asking for protection of up to five employees and then adding additional protected persons including those employees’ children and other household family members.

Karen Tynan: Okay. So, we’ve talked about protecting the employees. So, tell me more about who can be restrained in these types of restraining orders. Who is kept away from the workplace?

Amy Bianchini: The statute allows for any individual to be restrained. In my experience, usually this is a current or former employee who has exhibited concerning behavior, has engaged in threats in the workplace, but depending on the type of business, this can sometimes be a patient. You have situations where it can be a former client or a current client. I’ve heard of inmate situations, and so there are several different types of situations, but really a restraining order can restrain any individual who is making credible threats of violence against employees in the workplace.

Karen Tynan: So, that sounds pretty broad. Could you walk us through a recent workplace violence restraining order you’ve obtained and really drill down in how that process worked?

Amy Bianchini: Absolutely. I’ve filed one this year, that was a more complicated process, so I can talk a little bit about that particular restraining order. First, you start by identifying the county where the credible threats of violence were taking place, and you also want to identify where the person lives because that’s going to matter with how they’re served ultimately. And so, this was in a county in southern California, and this was a former client of the business, and he had been making credible threats of violence towards about four different people in that business. And what we ended up doing was immediately interviewing those employees. We got declarations as quickly as we could while the employees still had everything fresh in their minds.
And then we made sure that we asked those employees, “Do you have concerns about any minor children, any family members living in the home?” And then we essentially filled out the entire temporary restraining order first. And so, there’s a lot of paperwork involved in that. There are several forms, and then you also need to attach declarations outlining what happened, outlining the circumstances, and discussing the credible threats of violence that were made, as well as discussing their reasonable fear for their safety within those declarations. Once we finished that particular petition, we went and filed it, and the same day we received the temporary restraining order, which restrained our particular respondent up until the hearing from going anywhere near the business or anywhere near the workplaces or homes of these protected individuals.
And once we obtained that temporary restraining order, ultimately we had to file an amended temporary restraining order because this individual continued to harass both the protected individuals in the temporary restraining order and another employee who needed to be added. So essentially, we filed the same paperwork with some updates to their declarations and with a declaration from that fifth employee outlining what she had experienced from this particular respondent. We were lucky because we didn’t need to move the hearing. We filed that with sufficient time in order to keep the same hearing date that we had. And then once we went to the hearing, ultimately, we go, and it’s like a mini trial. There’s no jury, there’s just a judge, but you do present your case. You give a little opening statement, describe what’s happened.
And depending on the judge, sometimes the judge wants to go through all of the evidence. Sometimes the judge will only want to hear about anything new that’s happened in between the obtaining of the temporary restraining order and the hearing for the permanent injunction. In this case, the judge did not want to rehash evidence that he had already seen in the petition. He just wanted to hear about anything new that had happened. And then at the hearing we questioned our witnesses, we put our witnesses on the stand. Our respondent had some questions for our witnesses as well, which is something that you always have to prepare your employees for. We obtained the restraining order for the maximum amount of time, and we didn’t have to serve the respondent since he was present at the hearing, but we did make sure that-

Karen Tynan: That’s nice.

Amy Bianchini: Yeah, it was very nice. But we did make sure that we got a copy of that restraining order to both the police department in the city where that business was, as well as the sheriff, because this particular respondent was not deterred by the restraining order. Ultimately, he continued to violate the restraining order for a number of months after we had obtained it. Our witnesses ended up having to call the police department on various occasions, and we ended up filing contempt paperwork, there are separate forms depending on which county you’re in that you will file, and you file all paperwork similar to how you would file paperwork for a restraining order, but just explaining that you already have an order, that it’s been violated, here’s how it’s been violated. Ultimately, the contempt hearing did not go forward because this individual was arrested and put into jail, but we did have to ultimately go through that process.

Karen Tynan: Okay. So, as you talked about this, two things came to mind that I’m hoping you can share with the listeners. You used the term credible threat of violence. Do you think you could give us a couple of examples of what have been found to be credible threats of violence? And then on the flip side, maybe give us an example of something that you’ve had to tell a client, “Yeah, I don’t think that’s going to meet the standard of credible threat of violence.”

Amy Bianchini: Absolutely. Some of the credible threats of violence that I’ve seen were threats to actually bring a gun into the workplace. I’ve seen instances where a respondent actually brought a knife to the workplace, and I’ve also seen instances where the person says something like I’m going to get you and then makes motions either a finger across the neck or makes a gun motion towards the protected individuals. So, those things are usually going to be considered by a court in my experience as very credible threats of violence, something where a reasonable person would fear for their safety. Then there’s conduct that’s in that gray area, and that can be just something that’s like multiple calls where the person’s clearly very upset where they might say, “I’m going to get you back for this.” For example, I’ve seen a situation where a former employee was terminated and started calling up his former manager and said, “You’re going to pay for what you did to me. This is so unfair.”
And called that manager multiple times, and you’re looking at more of a gray area in that particular instance because there’s such severe consequences to these restraining orders. Individuals who are restrained aren’t allowed to have firearms. They’re supposed to turn all their weapons in once the restraining order’s been put in place. And so, courts are careful about granting them. And I’ve seen situations where I’ve advised clients, maybe it’s not the best idea to file a restraining order at this time, where a person just keeps showing up to the workplace, they’re not making any threat, but they’re just hanging around their former workplace trying to talk to a manager over and over again where it feels a little bit like stalking, but the person hasn’t made any threats. They haven’t tried to intimidate anyone, they’re just there. So, those are some examples of what’s definitely a credible threat of violence, what’s more in a gray area, and then what may not be actionable.

Karen Tynan: Oh, that’s very helpful. And so, you’ve talked about this process with the temporary part of the restraining order and the hearing and the forms, which frankly sound a little intimidating. What are some of the details or pitfalls that our listeners as California employers should be aware of in this process?

Amy Bianchini: That’s a great question. There are several. The first, when it comes to just the forms alone, every county is a little bit different in how they accept a restraining order. For example, if you file for a restraining order in San Diego County, you need to go and drop that restraining order in person, and you wait in the business office to receive the copy of the temporary restraining order. I have filed one in El Centro, and they only accept the restraining order online. And so, everything is very dependent on county. For example, El Centro has some of its own forms that you actually need to file that don’t exist in other counties. They have a special ex parte form that you have to file with your restraining order, which San Diego County doesn’t have. Another pitfall is that sometimes employers, they have these issues with these employees.
And I’ve run into situations where there’s been very credible threats of violence, but the employees to whom these threats are directed at do not want to participate in the restraining order process for fear that they will basically stir the pot with someone who’s already angry and make it more likely that this person will continue to threaten or become more angry. And so, sometimes, you really have to sit down and talk to these employees, explain the benefits of having a restraining order in place, and then also talk about the process because employees need to know the full process to make that informed decision of whether they want to be listed on the restraining order. And one of the things that I always tell clients is, even if an employee doesn’t want to participate in that process right now, you need to keep monitoring the situation because if the conduct escalates, that could always change.
The employee could change their mind and say, “Okay, this conduct is starting to get very severe. I think I want to be a part of the restraining order process now.” But they do need to know that they could be questioned at hearing by either a respondent’s attorney or the respondent themselves. And that can be in a very intimidating process for a lot of people. So, it’s very important as an attorney that we guide them through that process, what that looks like, and prepare them for any potential questions that they could get from a respondent’s attorney or the respondent themselves. Another pitfall is evidence and evidentiary objections in restraining orders because sometimes when you file these restraining orders, you could get sent to a judge who doesn’t deal with these on a daily basis, they can be just a judge in the civil department. And the evidentiary requirements are much more loose in restraining order cases. Any relevant evidence is admissible, including hearsay evidence.
But not every judge will know that if they’re not used to hearing restraining orders. And so, attorneys, people going into these restraining order hearings should be aware and ready for if they receive those objections to their evidence to inform the court, “Look, these are restraining order hearings. The evidentiary requirements are not as strict, and here’s why this evidence actually is admissible.” And then you also want to make sure that you still object to the other side’s evidence even with that consideration, because a judge could say, “Look, this isn’t relevant.” For example, I’ve had restraining order hearings where the respondent tried to argue, “Well, I did this because I wasn’t being paid properly, or I did this because…” And you can make relevance objections, and the court can sustain them and not consider some of their evidence.

Karen Tynan: Oh, okay. Well, as we close out here on this important podcast, and the first one on this issue for Ogletree, can you share just some final admonitions, some points for our listeners to help them if they’re facing the need or trying to understand workplace violence restraining orders?

Amy Bianchini: Absolutely. I feel like in the last few years I’ve seen an increase in the need for these restraining orders. I’ve seen an increase in concerning behavior in the workplace, unfortunately, and an admonition I would give to employers is that they have a duty to provide a safe workplace. So, if an employee comes to them, and they feel that they’re being threatened or that there are credible threats of violence being made towards them, whether it’s by another employee, a former employee, a client, a vendor, a former or current patient, an employer really needs to listen and pay attention and assess whether a restraining order is an appropriate remedy because you don’t want a situation where you don’t think about that sort of thing and the conduct ends up escalating and something tragic happens in the workplace. And so, employers, I think, really need to be thinking about whether restraining orders are appropriate.
Additionally, there are changes in the law coming in 2025 that allow for employers to file these restraining orders in cases of harassment, which expands the law beyond the current requirement that there be a credible threat of violence in the workplace. And so going forward, if an employee comes to them and says, “Hey, I have an issue where this current or former employee is constantly harassing me,” or, “A client is constantly harassing me.” The employer really needs to pay attention and think about whether a restraining order is appropriate in that case and may need to seek counsel as to whether a restraining order would be appropriate in that case. In the new law, they actually provide an example of why they’ve implemented those changes. And so, I think those are some of the most important considerations that employers need to think about if the restraining order is appropriate for them.

Karen Tynan: I absolutely agree, Amy. I definitely see an uptick in questions about the restraining orders as part of employers implementing SB553 in 2024 and working to have workplace violence prevention processes in place. So, I’m super glad you pointed that out. So, let’s tell our listeners, thanks for listening to Karen and Amy today. Look for our blog articles on ogletree.com. Check out our practice page. We have our own practice page on workplace violence prevention on that same Ogletree website. Thanks for listening and stay safe out there.

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