Introduction
Consider the following scenarios: A customer repeatedly enters your company’s workplace, berates your employees, uses profanity, and then leaves. (Let’s call her “Cruella.”) Or perhaps a customer consistently comes in and asks your employees out on dates, tells them about his sexual prowess, won’t take no for an answer, and refuses to leave the premises when asked. (Let’s call him “Ken.”) This conduct hasn’t yet involved stalking, assault, battery, violence or threats of violence, but it is still alarming, annoying, and harassing to your employees, causing them distress and impeding their work.
Even though California requires employers to take proactive steps to protect employees from harassing behavior, prior to Jan. 1, 2025, you may have been out of luck; unless and until the behavior escalated to stalking, assault, threats of violence or actual violence, you might lack a sufficient legal basis to restrain Cruella and Ken from entering your workplace.
Fortunately, a new law provides an additional, independent basis for obtaining a Temporary Restraining Order (TRO) (and after a hearing, ultimately a more durable restraining order), to protect your workforce from “harassing” conduct before it escalates to violence and causes potentially irreparable harm.
The Legal Framework of Workplace Harassment
The new law is codified under California Code of Civil Procedure § 527.8. Harassment, as defined in the revised law, is 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.” Importantly, the behavior must be such that it would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the victim.
Prior to this legislative change, employers could seek a restraining order based on two specific grounds of workplace violence:
- The person “assaulted, battered, or stalked the employee.”
- The person “made a credible threat of violence against the employee by making knowing and willful statements or engaging in a 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.”
The new law introduces a significant update by allowing employers to obtain a restraining order based solely on the occurrence of harassment as defined in § 527.8(b)(4). This means that employers no longer need to prove that Cruella or Ken assaulted, battered, or stalked an employee or made a credible threat of violence. The focus is now on the harassing behavior itself, which simplifies the process of obtaining protection for employees.
Implications for Employers
This legislative update significantly reduces the burden on employers for obtaining a restraining order to protect employees and customers from unwanted conduct. Here are key points to consider:
Proactive Protection
Employers can now take more proactive steps to protect their workforce. By being able to secure restraining orders based on harassment alone, employers can shield their employees from behaviors that may not yet involve physical violence or threats but are nonetheless detrimental to their well-being.
Streamlined Legal Process
The new law simplifies the legal process for obtaining restraining orders. Employers no longer need to navigate the complexities of proving assault, battery, stalking, or credible threats of violence. Instead, they can focus on demonstrating the harassing conduct and its impact on the employee, which can expedite the issuance of protective orders.
Enhanced Workplace Safety
By addressing harassment more effectively, employers can contribute to a safer and more supportive work environment. Employees who feel protected and valued are likely to experience improved morale, productivity, and overall job satisfaction.
Steps Employers Should Take
To leverage the benefits of this new law, employers should consider the following steps:
- Train management and staff to recognize and report third-party harassment to the appropriate company representative. This can help create a culture of awareness and responsiveness.
- Maintain thorough documentation of any reported incidents of harassment by third parties and attempts to get them to stop.
- Engage with legal counsel to guide you through the process of obtaining restraining orders when necessary.
Conclusion
The new California law marks a significant advancement in protecting employees from workplace harassment by third parties, and provides employers another tool to take preventative steps to protect employees from unwanted behavior from third parties.
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