California’s New Workplace Violence TRO Law: What Employers Need to Know

Announcer: Welcome to the Ogletree Deakins Podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

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 Chair of the West Coast OSHA Practice Group and Co-Chair of the Workplace Violence Prevention Practice Group. Here with me today is a fellow member of that practice group, Charles Thompson, who is also Co-Chair of the firm’s Leave of Absence and Reasonable Accommodation Practice Group and Co-Chair of the California Advice Group, a very busy group, and we are talking about the 2025 temporary restraining order laws related to workplace violence. This is an important topic for California employers. Are you ready, Charles, after that great introduction?

Charles Thompson: I am. Thanks. I think also you and I speak frequently, and we have a webinar about California compliance, which we go over new laws, new regulations, things that are happening, new cases in California. And you frequently speak,-

Karen Tynan: I do.

Charles Thompson: On the new Cal OSHA and workplace safety issues for us.

Karen Tynan: I love being a guest in your webinars, Charles. They’re always super entertaining and I actually learn a lot, so. This is a different platform for us. So Charles,-

Charles Thompson: Yes.

Karen Tynan: Let’s talk about lots of employers in California have focused on SB 553 and the workplace violence prevention plan, the training, I know you do training for a lot of folks, but another important part of SB 553 is this new California Code of Civil Procedure temporary restraining order section. Can you tell us more about that? Give us a broad overview?

Charles Thompson: Sure. And you are referring to California Code of Civil Procedure 527.8.

Karen Tynan: Yes.

Charles Thompson: All right. And what that does is it enables California employers to obtain temporary restraining orders, TROs against credible threats of workplace violence, and they can do it and so can unions, which we’ll talk about in just a few moments.

Karen Tynan: So, okay, you’ve mentioned this term, credible threat of violence, and I note that this new Code of Civil Procedure 527.8 has some definitions around credible threat of violence and course of conduct. Can you explain that for folks so they can understand these temporary restraining orders and what these definitions mean in the process?

Charles Thompson: I’ll explain as best I can, considering we’re dealing with a California law. So let me just give you what the statutory definition is, and then I’ll put it in English. So, a credible threat of violence under the statute 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.” So, basically, a credible threat of violence. Would a reasonable person, just use the reasonable person standard, would a reasonable person be afraid for his or her safety or someone in his immediate family?
Now they use course of conduct to define credible threat of violence. And course of conduct means a series of acts over a period of time, and it doesn’t have to be a long period of time, that includes, for example, following or stalking an employee to or from a place of work, following an employee during employment, making telephone calls, saying correspondence by any means including mail, interoffice mail, fax, or email. And so if an employee is being subjected to this course of conduct and that course of conduct would place the employee in reasonable fear or reasonable person in fear for his or her safety, then the employer can go in and get a TRO.

Karen Tynan: Okay. So that’s helpful to understand the kind of actions that we’d have to see. Now, I notice in this new statute there are some particular nuances. Now, if an employee is receiving threats and or a victim of violence, do they have to be named? Do they have to be in the court records or are they named in the restraining order? How does this all work?

Charles Thompson: They don’t have to be. They can be anonymous.

Karen Tynan: Oh, okay. And I think that probably is helpful.

Charles Thompson: Because? I realize you’re asking me the questions, and why do you say it’s helpful?

Karen Tynan: Well, I do think especially victims of domestic violence, well any type of victim in the scenarios that we typically see Charles, having to go and have your name in public documents, it can be another aspect of intimidation and the trauma,-

Charles Thompson: That’s right.

Karen Tynan: Of the events. And I know that that’s something that frequently when you get on these calls, and I know you’re available in the California Advice Group, it’s a 24-hour email.

Charles Thompson: It is.

Karen Tynan: Right. And so that’s usually a first kind of question is, well, does this employee have to play this large role in this process and further burden them during an extremely difficult time? So yes, I teed up the softball question for you Charles, and you made me answer it myself, but I think we’re 100% in agreement.

Charles Thompson: We are, we are. And I also get concerned about if the employee goes somewhere else and someone does a background check and these things come up and the new employer or new potential employer doesn’t want to be dragged into something, I worry about that as well.

Karen Tynan: I think that’s a really good point. And we don’t want the victims to be re-traumatized. So, now one part of the restraining order process, so the employee’s name doesn’t have to be attached to it, but the statute does reference the declarations that have to be prepared. So, I wanted you to take us through maybe the details about the declarations, how vague, how specific, what kind of information is typically included. What would employers expect to see? Let’s say they’re on a call with you and you say, okay, ABC company, we’ve got to start gathering some declarations so that, get this TRO on Monday morning.

Charles Thompson: I’m not sure that the declarations are that much different from the declarations that we would usually provide in any type of litigation and in TRO situations, in other TRO situations. Now the point is you have to be specific, right? Because you’re trying to convince the court to keep a person, the perpetrator away from the workplace and away from someone he or she may be related to. Right. So, you’ve got to get specifics. So, what we would be doing is telling, all right, look employer, what has been happening that makes you think you need to go in for the TRO? What has been happening at the workplace? What has been happening to the employee? And I don’t need some vague thing that you’re concerned, I need something,-

Karen Tynan: Right.

Charles Thompson: I need the facts that support your feeling or your conclusion.

Karen Tynan: And so that could be screen grabs of text messages.

Charles Thompson: Yep.

Karen Tynan: It could be printouts of emails, it could be screen grabs of social media even I think, right?

Charles Thompson: Well yes, that would be one of the places you would go to look. Absolutely.

Karen Tynan: And I think that documents like that always are helpful to show the real nature of threats and also just clear and concise declarations. Now that leads me into my next question for you Charles. So, you talked about getting these type of TROs all across the state. And so, in 2025 with the new law that’s under this umbrella of SB 553, that doesn’t change all these little nuanced local jurisdiction special procedures, some have their own forms, it doesn’t change that, right?

Charles Thompson: Well, it doesn’t change, so I’m sorry, let’s back up just a second. So, we already had and have workplace violence restraining orders that weren’t part of this bill.

Karen Tynan: Yes.

Charles Thompson: None of those change. Right. But those are state forms rather than particular local jurisdictions. Those are state forms, and there’s a set process that I mean, it’s online, there’s a set process to go through to get these other types of workplace violence or restraining orders as well. None of that’s changed.

Karen Tynan: And I think that’s important. We had another podcast with Amy Bianchini, and it was specifically the TRO process, and it wasn’t about this new law. And so, I think that’s a good point, that this is an addition. It doesn’t change what was already in the Code of Civil Procedure. That’s right, Charles.

Charles Thompson: Correct. Absolutely.

Karen Tynan: Okay.

Charles Thompson: That is correct.

Karen Tynan: So, when I think about this process, what I convey to clients is that this process moves quickly. Can you talk about kind of the timeframes? How many days can it take to get TRO? How long can it take to get in front of a judge to obtain a TRO like this?

Charles Thompson: It can be done the same day. In other words, if you get into court early enough, you can get a TRO the same day. That’s what the statute says. All right. The TRO can last for 21 days. Right. Then there’s a hearing.

Karen Tynan: Okay.

Charles Thompson: And then there can be a permanent restraining order for up to three years after the hearing. Now, after the three-year restraining order is in effect, if something else happens during that period of time and the individual, or rather the employer thinks that additional time is needed, the employer can go in and try to get and try to extend that the initial three years for another three years.

Karen Tynan: Okay. Very helpful.

Charles Thompson: But I mean judges are going to be wary of doing that unless the new credible threat of violence by the same person is taking place close to the expiration of the original three years.

Karen Tynan: Understood. And I recently did a session with Luther Wright, and he actually talked about how women can be so vulnerable and victims, not just women but victims because usually the people that want to harm you know where you work and even if you’ve moved into a shelter or you’re living somewhere anonymously, they know where you work. And so, these restraining orders and having a quickly moving timeframe can be critical in protecting a person. And it sounds like you really agree with that, that someone could call on a Tuesday morning or a Monday night, and we can be in there Tuesday and drop the papers and try to get in front of a judge before the end of the day.

Charles Thompson: Now the employer, even while all this is going on, the employer should be taking other actions as well, which is making sure that the front desk knows not to let a particular person come through or to make sure that security is involved. I mean, the other things that the employer can do as well.

Karen Tynan: Right. Following that workplace violence prevention plan. For sure. And so, you gave us a preview earlier when you gave us our overview of SB 553, and this new law has some nuances about that a union can actually jump into this kind of process. Can you talk a bit about this kind of standing that a union has to go get a TRO?

Charles Thompson: So, if there’s a union representative, if there’s a union involved in the workplace, and the employee is a member of the bargaining unit, yes, the union can go in and try to get a TRO even if the employer doesn’t want to. Let’s look at it this way. The union’s responsibility is to protect its members.

Karen Tynan: Yes.

Charles Thompson: The employer has to consider not only the protection of the employee, but also other factors and other considerations, as well, and how everything plays together. So, the employer has to take a different broader view, and so, that broader view may not always, the broader view and the unions view may be inconsistent.

Karen Tynan: Gotcha. Let’s close out here for this podcast. What are you thinking? So, for 2025, what are you thinking are some of the best practices? What can employers do to be ready for this law, California Code of Civil Procedure, 527.8 that’s been added? What are their takeaways? What are they going to implement for January 1, 2025?

Charles Thompson: So, here, to me, is the primary takeaway. Get organized now. Set up your process. You don’t want to be racing around and bumping into each other when the situation actually rises. Oh, I thought you were taking care of this. No, I thought you were. Just put the process into place. If an employee wants a workplace violence restraining order from the employer, who does the employee go to? What’s the – who at the employer is responsible for getting the information, right, or for reaching out to the lawyer? You just need a standard operating procedure that you can follow because when you’re trying to get one of these things, it’s an emergency. If you’re going in trying to get a TRO and getting it in one day, there’s an emergency happening. So, that’s my takeaway.

Karen Tynan: I like that because the idea that someone’s going to suddenly start Googling workplace violence restraining order and start looking at the checklist and figuring it out when the situation is on their desk versus maybe having an advice call and setting out the process and a flow chart. I like that big takeaway.

Charles Thompson: Yeah.

Karen Tynan: So, yeah.

Charles Thompson: And the other thing I would say, who’s going to be the decision maker? Who makes the decision as to whether you’re going in for the TRO? If there’s an in-house lawyer, is that the person? I mean, I’m assuming that person has input. Is it the manager? Is it the plant manager? Is it a vice president who is sitting in another city? I mean, who is the decision maker? You need to identify that.

Karen Tynan: I like that. I like that a lot, Charles. So great. We’re going to close out and thank everyone for listening to Karen and Charles today. You can look for the many blog articles we always have on ogletree.com for California employers. We have a practice page, the Workplace Violence Prevention Practice Group, and we also have webinars. Thank you for listening and stay safe.

Announcer: Thank you for joining us on the Ogletree Deakins Podcast. You can subscribe to our podcasts on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.