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California Governor Gavin Newsom signed Senate Bill (SB) No. 428 on September 30, 2023. As a result, employers should be aware that a new state law concerning workplace violence restraining orders went into effect on January 1, 2025.
This legislation broadens employers’ ability to obtain temporary restraining orders (TROs) in non-violent situations of harassment. Prior California law enables employers to seek a temporary restraining order against an individual only if the person has engaged in workplace violence or threats of violence against employees. The new section of the California Code of Civil Procedure—§ 527.8—permits employers to file a petition for a temporary restraining order to protect employees from violence or threats of violence.
The California Legislature broadened the law after hearing concerns about workplace harassment that didn’t necessarily include credible threats of violence or actual violence; nonetheless, these issues can create stressful and unsafe working environments for employees. Those in favor of the bill argued that such harassment is in many cases equally as damaging as physical threats. This can result in lower employee productivity and poor workplace morale.
They note that employers shouldn’t have to wait for conduct to rise to the level of violence before getting the courts involved. The new law provides that an employer may seek a court order to keep the threatening individual away from the workplace, their home, and other locations; it also prohibits the complained of individual from communicating with the employee in any way. If the person violates the order, law enforcement can arrest them.
SB 428 helps employers make certain that employees have safer workplaces.
What are the New Definitions?
Senate Bill No. 428 expanded the law to let employers ask for a TRO to protect against “harassment,” in circumstances in which the conduct may not rise to the level of a threat of violence.
The law defines “harassment” as:
A knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.
In addition, “course of conduct” is defined as the following:
A pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email.
What Proof is Required by Employers to Obtain a Temporary Restraining Order?
Employers must provide evidence that supports a claim of harassment or threats. Reasonable proof that an employee has suffered unlawful violence, or a credible threat of violence by the complained of individual, and that great or irreparable harm would result to an employee. Clear and convincing evidence of all of the following:
(i) That an employee has suffered harassment by the complained of individual;
(ii) That great or irreparable harm would result to an employee;
(iii) That the course of conduct at issue served no legitimate purpose; and
(iv) That the issuance of the order isn’t prohibited by § 527.8(c).
In addition, the new law specifically prohibits a court from issuing a workplace violence TRO if the order would prohibit speech or activities protected by the federal National Labor Relations Act or specified provisions of law governing the communications of exclusive representatives of public employees.
What Language is Required in the TRO?
The Judicial Council form for temporary orders issued pursuant to § 527.8(q)(3) of the Code of Civil Procedure must have a statement in substantially the following form:
If you have been personally served with this temporary restraining order and notice of hearing, but you do not appear at the hearing either in person or by a lawyer, and a restraining order that is the same as this restraining order except for the expiration date is issued at the hearing, a copy of the order will be served on you by mail at the following address: ____.
If that address is not correct or you wish to verify that the temporary restraining order was converted to a restraining order at the hearing without substantive change and to find out the duration of that order, contact the clerk of the court.
In addition to serving the complained of individual, the law stipulates that information on a temporary restraining order or order after hearing relating to workplace violence issued by a court pursuant to § 527.8 must be transmitted to the Department of Justice. Employers must either:
- deliver a copy of an order by the close of the business day on the order was made, to each law enforcement agency having jurisdiction over the residence of the petitioner and to any additional law enforcement agencies within the court’s discretion as are requested by the petitioner; or
- the court must transmit, within one business day, to law enforcement personnel all information required under § 6380(b) of the Family Code as to an order issued under § 527.8.
Can the Complaining Employee Remain Anonymous?
Yes. In addition, the bill require an employer seeking a temporary restraining order to give the employee whose protection is sought the chance to remain anonymous in the order before the filing of the petition. And while an employee can seek a restraining order on behalf of him- or herself or family members, only employers may request a workplace violence restraining order. A court may issue a workplace violence TRO against anyone who has been violent or threatened violence against one or more employees at a workplace.
Takeaway
Employers should consider updating their employment policies and handbooks to make certain all employees know about and understand the new protections against harassment. If an employer receives a harassment complaint, employers should also consider if a workplace violence temporary restraining order is an appropriate remedy to respond.