Report Title:

Worksite; TRO

Description:

Establishes a mechanism for employers to obtain temporary restraining orders to protect against violence and harassment at the worksite. (HB385 HD2)

HOUSE OF REPRESENTATIVES

H.B. NO.

385

TWENTY-SECOND LEGISLATURE, 2003

H.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO the prevention of workplace violence.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that workplace violence:

(1) Is growing at an alarming rate throughout Hawaii and the United States;

(2) Results in approximately one and a half million assaults each year in the United States;

(3) Results in approximately one thousand deaths each year in the United States;

(4) Is the second leading cause of occupational fatalities in the United States; and

(5) Is the leading cause of occupational fatalities for women in the United States.

Recent events graphically and tragically demonstrate that Hawaii is no longer immune from workplace violence. On November 2, 1999, Hawaii suffered the worst workplace mass murder in its history. On that day, seven innocent men were gunned down and murdered at work by a co-worker. These seven men--Jason Balatico, Ford Kanehira, Ronald Kataoka, Melvin Lee, Peter Mark, Ronald Kawamae, and John Sakamoto--were hard-working and long-time Xerox employees. These seven men were also husbands, fathers, and sons who left behind wives, children, parents, families, friends, and co-workers.

The legislature desires to protect the people of the State from the type of violence suffered by these men and the pain endured by their wives, children, parents, families, friends, and co-workers.

The legislature further finds that although employers in Hawaii are committed to maintaining safe working environments through the prevention of workplace violence, they currently lack efficient and effective tools to obtain judicial relief for the prevention of workplace violence.

The purpose of this Act is to provide a simple and efficient mechanism for employers and employees to obtain judicial relief for the prevention of workplace violence.

The legislature intends that this Act not be used to deter legitimate activities by employees or restrict lawful expressions of free speech.

SECTION 2. Chapter 604, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§604-      Power to enjoin and temporarily restrain acts or threats of violence or harassment at a workplace. (a) Any employer, whose employee has suffered an unlawful act or threat of violence or harassment from any individual that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek, on behalf of the employee, a temporary restraining order and an injunction from the district court of the district in which the workplace is affected to prohibit further unlawful acts or threats of violence or harassement from that individual.

(b) To the extent feasible, the employer shall attempt to consult the employee or employees subject to the unlawful acts or threats of violence or harassment prior to petitioning for relief under this section. Employees who are unwilling to participate in this process shall not face disciplinary action based on their level of participation or cooperation with this process.

(c) A petition for an ex parte temporary restraining order and for injunctive relief under this section shall be in writing and shall include affidavits made under oath or statements under penalty of perjury that contain the following:

(1) Specific facts of the acts or threats of violence or harassment that were carried out at the workplace or that may occur at the workplace in the future unless restrained;

(2) If the respondent is a co-employee or current or former employee of the employer, facts relating to the respondent's employment status, actions taken by the employer to resolve disputes between co-employees or with the employer prior to seeking the restraining order, if applicable, and the employer's inability to reasonably prevent further acts or threats of violence or harassment from occurring in the absence of a restraining order; and

(3) Reasons why an ex parte temporary restraining order should be issued without prior notice to the respondent.

(d) Upon petition for relief under this section, the court may:

(1) Issue an ex parte order to temporarily restrain the respondent upon a determination that:

(A) There is probable cause to believe that violence has occurred, may be imminent, or that there is a credible threat of violence that may occur in the future;

(B) Irreparable harm may result to the employer, the employee, or the employee's family or household members at the workplace; and

(C) Providing notice to the respondent might trigger the very violence or threat of violence sought to be restrained;

(2) Issue a temporary restraining order not to exceed ninety days. The order may be oral; provided that the oral order shall be reduced to writing by the close of the next court day following oral issuance; or

(3) Exercise its discretion on the scope of the temporary restraining order, considering factors such as the respondent's employment status, the ability to restrain the respondent's conduct by geographical boundaries within or around the workplace, prohibiting communication with and physical proximity to the employee at the workplace, and the need to extend protections to the employee's residence and family or household members.

(e) An ex parte temporary restraining order shall be followed by a hearing on the petition for injunctive relief to be held within fifteen days after the temporary restraining order is granted. If the respondent has not been served with the temporary restraining order before the date of the hearing on the petition to enjoin, the court may set a new date for the hearing; provided that the new date shall not exceed ninety days from the date the temporary restraining order was granted. At the hearing, the court:

(1) May consider any response filed by the respondent and any oral testimony from the respondent, witnesses, and the petitioner relating to the unlawful acts or threats of violence or harassment;

(2) May consider any other relevant evidence;

(3) May make independent inquiry;

(4) If the respondent is a current or former employee of the petitioner, shall consider the respondent's employment status, the effect of the permanent injunction on the respondent's employment status and right to appeal any adverse employment decision; and

(5) If the court finds by a preponderance of the evidence that the respondent has engaged in unlawful acts of violence or harassment or made credible threats of violence and that the likelihood of future violence or harassment exists, may enjoin for no more than three years, on terms it deems appropriate under the circumstances; provided that this subsection shall not prohibit the court from issuing other injunctions against the respondent even if the the injunction exceeds a total of three years.

(f) Any order issued under this section shall be served upon the respondent.

(g) Where service of a restraining order or injunction has been made or where the respondent is deemed to have received notice of a restraining order or injunction order, any knowing or intentional violation of the restraining order or injunction order shall subject the respondent to the provisions in subsection (j).

(h) Any order issued shall be transmitted to the chief of police of the county in which the order is issued by way of regular mail, facsimile transmission, or other similar means of transmission.

(i) The court may grant costs and fees, including attorney's fees, to the prevailing party.

(j) A knowing or intentional violation of a restraining order or injunction issued pursuant to this section is a misdemeanor. The court shall sentence a violator to appropriate counseling and shall sentence a person convicted under this section as follows:

(1) For a violation of an injunction or restraining order that occurs after a conviction for a violation of the same injunction or restraining order, a person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours; and

(2) For any subsequent violation that occurs after a second conviction for violation of the same injunction or restraining order, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days.

The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1) and (2), upon appropriate conditions, such as that the defendant remain alcohol and drug-free, conviction-free, or complete court-ordered assessments or counseling. The court may suspend the mandatory sentences under paragraphs (1) and (2) where the violation of the injunction or restraining order does not involve violence or the threat of violence. Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor offense.

(k) Nothing in this section shall be construed to prohibit a constitutionally protected activity.

(l) Nothing in this section shall be construed as:

(1) Creating, expanding, diminishing, altering, or modifying the duty, if any, of an employer to provide a safe workplace for employees;

(2) Creating a duty or other obligation of an employer to invoke or use the provisions of this section in any given circumstance, and the failure to invoke or use the provisions of this section shall not form the basis for any claim or liability against an employer;

(3) Limiting any other rights or remedies available to an employer or employee under existing law, including but not limited to the seeking of injunctive relief through methods other than the procedures set forth in this section; and

(4) Affecting or in any way limiting the exclusivity provision in chapter 386.

(m) No civil liability shall attach or be imposed upon any employer for:

(1) Initiating a proceeding under this section;

(2) Acts or statements in connection with any proceeding under this section, except if such statements were made with knowledge of its falsity or such acts were made with malice; or

(3) Conducting an investigation of any alleged act or threat of violence or harassment in the workplace for purposes of determining the feasibility of or initiating a proceeding under this section.

(n) No civil liability shall attach or be imposed upon any employee or witness who participates in an employer's investigation for purposes of initiating a proceeding under this section or who presents statements or evidence in a proceeding under this section, except if such actions are made with malice or if such statements are made with knowledge of its falsity.

(o) For the purposes of this section:

"Course of conduct" means a pattern of conduct composed of a series of acts over any period of time, however short, evidencing a continuity of purpose or propensity for violence, including stalking an employee to or from the workplace.

"Credible threat of violence" means a knowing and wilful statement or course of conduct that would place a reasonable person in fear for the person's safety, or the safety of the person's immediate family or household members, co-employees, or employer, or the safety and integrity of property at the workplace and that serves no legitimate purpose.

"Employee" means any natural person who is permitted or allowed to work or to be in the employment of the employer for compensation. The term "employee" also includes any noncompensated volunteer or independent contractor who performs services for the employer at the employer's workplace.

"Employer" means any individual, partnership, association, trust, estate, corporation, or any other entity or business that engages the services of more than one employee in its employment. The term "employer" also includes the United States government, the State, any county, and any agency or instrumentality of the United States government, State, or any county.

"Employment" means any service performed by a natural person for an employer under any work or service relationship, contract for hire, or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into.

"Family or household members" means any natural person residing with an employee, including the employee's spouse, child, parent, sibling, grandchild, grandparent, or reciprocal beneficiary.

"Harassment" means:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or

(2) An intentional or knowing course of conduct directed at a natural person that seriously alarms or disturbs consistently or continually bothers the person and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.

"Petitioner" means any employer or employee who seeks relief under this section.

"Respondent" means any natural person against whom relief is sought under this section.

"Served" means actual personal service, service by certified mail, or proof that the respondent was present at the hearing in which the court orally issued the order.

"Violence" means any unlawful physical harm, bodily injury, assault, battery, psychological abuse, property damage, or threat of imminent physical harm, bodily injury, assault, battery, psychological abuse, or property damage.

"Workplace" means any site, premise, location, or place where an employer conducts business operations or activities, regardless of the employer's ownership or tenancy status, right to exclusive use and control, or operation or control of the site, premise, location, or place."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.