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 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

385

TWENTY-SECOND LEGISLATURE, 2003

H.D. 1

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, family, 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, family, 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. Section 604-10.5, Hawaii Revised Statutes, is amended to read as follows:

"§604-10.5 Power to enjoin and temporarily restrain harassment. (a) 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 evidencing a continuity of purpose.

"Employee" means any natural person who is required, directed, permitted, or suffered by any employer to engage in any employment, go to work, or be at any time in any place of employment for compensation. The term "employee" also includes any volunteer or other non-compensated person and any independent contractor who performs services for the employer at the employer's worksite.

"Employer" means any individual or type of organization, including any partnership, association, trust, estate, private, public, or quasi-public corporation, whether domestic or foreign, for-profit or not-for-profit, a debtor in possession or receiver or trustee in bankruptcy, or the legal representative of a deceased person, that has one or more regular employees in the employer's 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.

"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 an individual that seriously alarms or disturbs consistently or continually bothers the individual[,] and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.

(b) The district courts shall have power to enjoin or prohibit or temporarily restrain harassment.

(c) Any person who has been subjected to harassment may petition the district court of the district in which the petitioner resides for a temporary restraining order and an injunction from further harassment.

(d) Any employer, whose employee, customer, or guest has been subjected to harassment or threatened harassment from any individual that can reasonably be construed to be carried out or to have been carried out at the worksite or in the course of work-related duties, may petition the district court of the district in which the worksite is situated for a temporary restraining order and an injunction from further harassment at the worksite. To the extent feasible, the employer shall attempt to consult the employee or employees subject to the harassment or threats prior to petitioning. Employees who are targets of threats or harassment who are unwilling to participate in this process shall not face disciplinary action based on their level of participation or cooperation with this process.

[(d)] (e) A petition for relief from harassment shall be in writing and shall allege that a past act or acts of harassment may have occurred, or that threats of harassment make it probable that acts of harassment may be imminent; and shall be accompanied by an affidavit made under oath or statement made under penalty of perjury stating the specific facts and circumstances from which relief is sought.

(f) A petition by an employer shall further specify that the acts or threats of harassment, or any of them, were or are to be carried out at the worksite.

[(e)] (g) Upon petition to a district court under this section, the court may temporarily restrain the person or persons named in the petition from harassing the petitioner upon a determination that there is probable cause to believe that a past act or acts of harassment have occurred or that a threat or threats of harassment may be imminent. The court may issue an ex parte temporary restraining order either in writing or orally; provided that oral orders shall be reduced to writing by the close of the next court day following oral issuance.

[(f)] (h) A temporary restraining order that is granted under this section shall remain in effect at the discretion of the court for a period not to exceed ninety days from the date the order is granted. A hearing on the petition to enjoin harassment shall be held within fifteen days after the temporary restraining order is granted. In the event that service of the temporary restraining order has not been effected 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.

The parties named in the petition may file or give oral responses explaining, excusing, justifying, or denying the alleged act or acts of harassment. The court shall receive all evidence that is relevant at the hearing, and may make independent inquiry. If the respondent is a current employee of the petitioner, the judge shall receive evidence concerning the employer's decision to retain, terminate, or otherwise discipline the defendant.

If the court finds by clear and convincing evidence that: harassment as defined in paragraph (1) of that definition exists, it may enjoin for no more than three years further harassment of the petitioner[,]; or [that] harassment as defined in paragraph (2) of that definition exists, it shall enjoin for no more than three years further harassment of the petitioner; provided that this paragraph shall not prohibit the court from issuing other injunctions against the named parties even if the time to which the injunction applies exceeds a total of three years.

Any order issued under this section shall be served upon the respondent. For the purposes of this section, "served" [shall mean] 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 injunction.

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 [(h).] (j).

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.

[(g)] (i) The court may grant the prevailing party in an action brought under this section[,] costs and fees, including attorney's fees.

[(h)] (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 violator 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.

[(i)] (k) Nothing in this section shall be construed to prohibit 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 and other persons;

(2) Creating a duty or other obligation of an employer to invoke or use the provisions of this chapter in any given circumstance, and the failure to invoke or use the provisions of this chapter 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 chapter; 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 or employee for:

(1) Initiating a proceeding under this chapter;

(2) Acts or statements in connection with any proceeding under this chapter; or

(3) Acts or statements made in connection with the investigation of any alleged threat of violence or act of violence in the workplace to the extent the acts or statements are made in support of or in furtherance of the initiation of a proceeding under this chapter. Nothing in this paragraph shall affect the liability of any employer or employee for acts or statements not made in connection with an investigation in support of or in furtherance of the initiation of a proceeding under this chapter or not made in connection with the actual initiation of proceedings under this chapter.

(n) Any proceeding under this chapter shall be initiated and conducted notwithstanding any other state or county law, rule, or ordinance to the contrary."

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. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

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