Restraining Orders in the Workplace: A Proactive Approach to Employer Safety

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Robert Rodriguez: Hello, everyone, and thank you for joining us for the Ogletree Deakins podcast. My name is Robert Rodriguez, and I’m a shareholder in the Sacramento, California office and co-chair of the Workplace Violence Prevention Practice Group. And here today with me is Tom Bellifemine from our Morristown, New Jersey office. And today we’re here to have a conversation about restraining orders and protecting the workplace. Welcome, Tom. Thanks so much for joining us.

Tom Bellifemine: Thanks for having me, Robert. Pleasure to be here.

Robert Rodriguez: Great. And then it might be helpful for you to give a little background on yourself, your kind of experience with these workplace violence issues and your professional background.

Tom Bellifemine: Sure. I started my career at the Brooklyn DA’s office. I was an assistant district attorney for about four or five years, prosecuting everything from misdemeanors to felonies up to attempted murders. I then went to the civil side. I’ve been doing employment civil litigation ever since. And as it relates to workplace violence, I handle all types of situations involving restraining orders and motions for injunctive relief when merited.

Robert Rodriguez: Awesome. That’s a great background. And that experience of both civil and criminal really puts you in a great spot to be able to do these kinds of restraining orders and workplace violence issues. So, for me, for my practice, what I’ve seen is workplace violence and disruptive behavior are rising concerns across multiple industries for clients that I’m working with.

And a lot of times employers are kind of feeling stuck about what they can do, what they can’t do. They don’t want to overreact with a potential restraining order, but then they don’t want to underreact. And so, we’re going to talk a little bit about the restraining orders today. So my first question, Tom, is what is a restraining order in the workplace violence employment law context?

Tom Bellifemine: At its most basic, a restraining order—it can take many forms, depending on your jurisdiction, but at its most basic, it’s just a judicial order telling someone they can’t do something or they can’t go somewhere. And in the workplace violence and in the workplace context, it’s really an issue of whether somebody can appear at an employer’s place of business, whether they can be on site, and whether they can have contact with other employees that they work with, or used to work with, or interacted with as a customer.

Robert Rodriguez: I think a good way to think of it, how I explain to my clients, is it’s a preventative safety tool. It’s not just a reaction to violence. Sometimes you’re doing a restraining order or injunctive relief before there’s actually been a violent incident. You’re trying to prevent that. Have you seen that before?

Tom Bellifemine: Absolutely. I mean, one of the most common ways that these matters come to us is because there’s been an irate customer or an irate employee that has acted out in the workplace, and said or done something that either hints at violence or hints at some sort of escalation. And it’s really a reaction by employers to say, what can we do here? How do we protect our workplace? And again, what you can do depends on where you are.

Robert Rodriguez: Right, right. And that’s a great point. Bringing me to my next question, we’re talking about restraining orders in general. And I practice in California. I know you practice in New York and New Jersey. And so, what I’ve found across the country is different states may have different rules surrounding how you get a restraining order. What has been your experience out in New York and New Jersey in getting a restraining order for employers?

Tom Bellifemine: Yeah, it all depends on what venue you’re looking at. So, in the most common way in New York, for example, that you see restraining orders is through criminal court, through some sort of criminal proceeding where an assault has occurred or something of that nature. And criminal courts in New York issue orders of protection, they’re called, almost regularly for any assault victim or witness. And so that’s really the most common way that you see it here.
But outside of the criminal context, you don’t really see it in New York and New Jersey. In New Jersey and New York, you can go through family court for orders of protection in the domestic setting, but outside of that, you don’t really see it. And that’s kind of where issues come into play for employers.

Robert Rodriguez: Out here in California, where I practice, there’s a very well-defined process for doing it. There’s a statute that provides for employers to be able to move for restraining orders on behalf of themselves and also their employees. There’s all kinds of court forms that they have. But it sounds like the practice is a little bit different in New York and New Jersey. Is that right?

Tom Bellifemine: That’s exactly right. Yeah. There is no specified mechanism for employers to get restraining orders, well, at all, really. And the reason is because where you see this is in criminal court and the orders of protection that they issue in criminal court can’t be issued on behalf of companies. They can only be issued on behalf of live persons.

And so, what happens is, while a company or an employer may be the beneficiary of an order of protection that’s issued to a victim of a crime, whether it occurs on property or not, the order of protection can’t be issued in their name. And so, it limits how much protection a business actually gets from one of these. And again, because this all happens through criminal court, the preemptive event is some sort of crime.

Robert Rodriguez: Right. Something’s already happened at this point.

Tom Bellifemine: Exactly. Exactly. It’s not preventative at all. Whereas it sounds like in California, that’s exactly the purpose.

Robert Rodriguez: Yeah. In different states that I’ve worked with clients on that have regulations or statutes that provide for this, it is kind of more of a preventative mechanism. You’re seeing maybe escalating behavior on the part of either an employee or a customer of your business, and you’re saying, “Hey, I’m not liking where this is headed and we want to part ways. We don’t want to see you darkening our door anymore. Here we go.”

One thing that’s been interesting in my practice is kind of hearkening back to those law school days where you’ve got free speech and the First Amendment here. And so, what I’ve found is they have to balance that against free speech, and then also when people make credible threats of violence. And so, the standard in most states that I’ve gone for restraining orders in has been usually a credible threat of violence or you’re putting somebody in reasonable fear. Those are the kind of things that the court is more inclined to grant. What situations have you worked on where the court has granted an injunctive relief or a restraining order?

Tom Bellifemine: Yeah, it’s interesting because in New York, we don’t have that formal kind of procedure. And so, we’re relegated to the civil courts and what we can do in civil court through the normal tort procedure. And so that’s maybe a blessing and a curse in some scenarios because when you do have a strict process, you’re limited to that standard.

But out here, because we’re just dealing with normal torts like tortious interference with business relationships and defamation per se, things like that, the standards are those exact same standards. And so, we’ve had scenarios where somebody doesn’t necessarily make a threat of violence, but the way that they’ve acted, the way that they’ve comported themselves just outside the business has given us grounds to seek a restraining order against that person.

Robert Rodriguez: Interesting.

Tom Bellifemine: And again, it didn’t necessarily involve any allegations that the person was going to be violent. When you have a strict process like you do in California, I don’t know that you would be able to get a restraining order in those types of situations. But one of the things we’ve had to deal with is what do you do when somebody doesn’t go on your property? Standing outside your business berating customers, berating employees, saying horrific things. It’s a fine line, like you said, with free speech and whatnot. But there’s a line, and courts out here have been helping us define that line through these kinds of proceedings.

Robert Rodriguez: That’s interesting. And in California, the legislature enacted one of the most sweeping comprehensive workplace violence prevention laws across the states. And as part of that comprehensive workplace violence prevention plan, you’re supposed to identify potential workplace violence hazards and then address them.

And so one thing I always like to counsel clients about is that a restraining order process, whether that be in California or New York, or wherever you may be, there is some sort of mechanism to get restraining orders. That’s a tool that you have in your toolkit to address potential workplace violence. And I think, especially in California, that is something Cal/OSHA will be looking at, whether or not an employer considered that or tried to move for it.

And having done these cases for years, when a client calls me and tells me, “Tom, I’ve got this employee doing X, Y, and Z,” or, “Their partner is showing up at the workspace, making threats, should I get a restraining order? Should I move for one?” And my advice in those situations is generally, if you’re having those feelings where you think this may be a situation where you want to have that person barred from your workplace, whether it be an employee, a customer, or a spouse or domestic partner of an employee, that’s usually a warning sign that probably we should at least move forward with this and let the judge decide whether or not there should be a restraining order.

Tom Bellifemine: 100%. And again, if you’re asking yourself those questions, then the time may have already passed to move. and at the end of the day, it is going to be the judge’s decision. And so you’re better off asking sooner rather than later.

But the funny part is, it brings me to one issue I’ve dealt with with clients is they ask themselves, is there anything I can do to remedy this situation? Is there anything I can do? What is the most I can do to protect my workplace? And in the criminal context, in criminal courts, all they can really do for businesses is issue a no trespass order. In order to get an order of protection, you need to have an employee, a victim of a crime or a witness of a crime, willing to put their name on this order of protection and be the one protected.

And so that’s led us to the question, well, what can businesses do and should they get involved? And it’s, again, a tough line, but if you’re even asking yourself those questions, should I do something, you probably should.

Robert Rodriguez: Yeah. And it’s difficult in terms of logistics. I don’t know if you’ve experienced this as well where you will have maybe an employee that’s experiencing some threats of violence. And like you’re mentioning, you have to move basically on their behalf. But it’s tough because you’ve got to have that employee willing to put their name on the line. You got to have them willing to submit declarations to the court, potentially show up for an evidentiary hearing. So, it’s no small undertaking.

Tom Bellifemine: No, it’s not. And once you get involved, once your name is out there, and it’s on this order of protection, that’s it. You’re involved. There’s no hiding behind the company or anything like that. But at least in New York and New Jersey, because we don’t have that formal process, we’ve been able to find a way to allow the employers to take on that burden and take up that mantle of protecting their employees in this way.

Robert Rodriguez: One question I had, given the kind of differentiation, and I know you touched on it a little bit, but I was interested to learn a little bit more about how does this approach in New York and New Jersey differ from going to criminal court?

Tom Bellifemine: It’s more expansive in what you can protect and what you can move on. So what I mean by that is to do this through criminal court, there has to be a predicate crime. Disorderly conduct is in New York a violation. It’s not classified as a crime. So generally, a police officer has to see you engaging in disorderly conduct to arrest you for. Now let’s take the example of somebody outside of a business creating a disturbance. If they keep leaving before the cops get there, and that often happens in New York–

Robert Rodriguez: I imagine. Yeah.

Tom Bellifemine: –it’s very hard to get that person under control. And so, what we do here is we use the civil injunction route to put a court order in place so that the next time they engage in that behavior, it’s now potentially contempt of court as opposed to just disorderly conduct.

Robert Rodriguez: Right. Because you’re putting them on notice, and so it’s a higher kind of burden for them to stay away, I guess.

Tom Bellifemine: And if they violate it, it’s a violation of a court order, and it’s an arrestable offense. It’s a misdemeanor, which a police officer can arrest you for not being on scene to witness it.

Robert Rodriguez: And in your experience dealing with these, how responsive have you found courts to these situations?

Tom Bellifemine: Courts have been pretty responsive to us, but I think that’s also dependent on the nature of the claim that’s being brought. Obviously, when the allegations do involve some sort of threat of violence or something to that effect, they’re a lot more sympathetic and will generally react faster, but we’ve seen the courts react favorably to our requests, and we’ve actually gotten a few restraining orders on consent from the other party based on the cases that we’ve brought. And also, we’ve had courts issue the restraining order following summary judgment.

So either route, whether it’s consented on or it’s done through summary judgment, the courts have been favorable. But I think to a certain extent, it really depends on the attorneys picking and choosing which cases to bring and which cases they can actually get these kinds of orders on. Because it’s not going to be every type of disturbance is going to merit this type of relief.

Robert Rodriguez: Yeah. And one thing that I’ve found in my practice is these workplace violence issues or injunctive relief issues or disturbances where you’re wanting people away from your work site are always so fact specific. And it’s always difficult because there is a lot of judicial discretion in, at least in California, whether or not to issue these orders of protection or restraining orders. And I’ve had ones where I’ve gone in where there’s been, in my mind, a really good credible threat of violence, and a judge said, “Yeah, I don’t think that’s quite enough.” And then there’s been ones where I’ve had maybe not so credible of a threat, and I’ve had a judge say, “Yep, I agree that that is a credible threat.” So, it seems like it’s very fact specific and very much open to judicial discretion a lot of times.

Tom Bellifemine: Absolutely. And that can be a blessing and a curse. It can work for you sometimes and against you at other times. It’s the same in the criminal world, with the exception of limited orders of protection, at least in New York, are issued as a matter of fact in assault cases.

Robert Rodriguez: Well, thanks so much, Tom, for being here and helping edify us about the different processes in New York and New Jersey. And I think some key takeaways for our listeners out there, there is going to be some sort of mechanism, whether it’s statutory like in California or kind of a motion for summary judgment, injunctive relief in New York and New Jersey, but there is going to be some sort of mechanism where you can get protective orders or stay away orders for either employees or customers of your business.

And a lot of times employers don’t realize that that’s kind of a tool you have in your tool belt to fight workplace violence and prevent workplace violence at your work site. So again, thanks for joining me, Tom, and thanks for listening to us today. Look for Ogletree blog articles on ogletree.com. Check out our practice page, Workplace Violence Prevention Practice Group on that same website, and also look out for our webinars. Thanks for listening, and stay safe out there. Thanks, Tom.

Tom Bellifemine: Thanks, Robert.

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