By: Martin J. Mayer, General Counsel California Peace Officers’ Association
Legal issues regarding potential and/or actual incidents of workplace violence is, unfortunately, something which must be of concern to all employers, whether or not they have already been confronted with such incidents. This is an area of the law which imposes duties and responsibilities on employers in both the private and public sectors.
Current Laws Regarding Workplace Violence (WPV)
California Code of Civil Procedure sec. 527.8 states: (a) Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.
(b) For the purposes of this section:
(1) “Unlawful violence” is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.
(2) “Credible threat of violence” is a knowing and willful statement or 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, and that serves no legitimate purpose.
(3) “Course of conduct” is 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, fax, or computer e-mail.
Additionally, California Labor Code sec. 6400 et seq. states: (a) Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.
Sec. 6401 states: Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.
Section 6401.7 provides that “every employer shall establish, implement, and maintain an effective injury prevention program… and shall include, but not be limited to, the following elements….the employer’s methods and procedures for correcting unsafe or unhealthy conditions and work practices in a timely manner…”
Section 6402 provides that “no employer shall require or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”
While section 6400 et seq. usually applies to occupational injuries and/or illnesses, the California Court of Appeal, in the case of City of Palo Alto v. Service Employees International Union (SEIU), 77 Cal. App. 4th 327 (1999) held that these Labor Code sections, combined with CCP 527.8, “express an explicit public policy requiring employers to take reasonable steps to provide a safe and secure workplace. Such responsibility appears to include theduty to adequately address potential workplace violence.” (Emphasis added.)
City of Palo Alto v. SEIU
In City of Palo Alto, a maintenance employee of the city threatened to shoot another employee. The city obtained an injunction pursuant to CCP 527.8 that required the employee to stay at least 100 yards away from the workplace, the threatened employee, and the threatened employee’s family and residence. Additionally, the city terminated the employee, without complying with termination procedures required by the controlling MOU.
An arbitrator reinstated the employee and the City petitioned the trial court to vacate the award. The trial court denied the petition and upheld the employee’s reinstatement. On appeal, the court of appeal reversed, finding that that the reinstatement order impermissibly required disobedience to the court ordered injunction.
It is accepted public policy that employers must provide employees with a safe workplace. The court, in City of Palo Alto stated that, “CalOSHA (California Occupational Safety and Health Act) considers risks of workplace violence to be a workplace safety issue, which must be addressed in an employee’s injury prevention program.” (Emphasis added.)
Conclusion
As stated above, the issue of potential and/or actual WPV must be addressed by all employers, both public and private sector. A review of the case law since City of Palo Alto’spublication provides no guidance on exactly how an employer “adequately addresses” potential workplace violence. This case appears to be the extent of the guidance employers will receive, for now, from courts on this issue. Subsequent decisions have merely affirmed the duty employers have to “adequately address” workplace violence.
Although CCP 527.8 does not require the employer to seek an injunction, and Labor Code sections 6400 et seq. are purposefully broad in their description of the duties imposed upon employers to ensure employee safety, there is little doubt that an employer must take swift affirmative action when it becomes aware of an alleged or actual threat of WPV.
It is likely that as long as the employer acts reasonably under the circumstances to “adequately address” any workplace threats of violence, it will fulfill its duty under the law. An internal personnel investigation by an agency would initially meet those obligations. Obviously, policies and procedures defining WPV, which address the duties and obligations of employees and supervisors when confronted with potential WPV, must be in place and made known to all involved.
Martin J. Mayer is a name partner with the public sector law firm of JONES & MAYER, located in Fullerton and Roseville. Mr. Mayer has served as general counsel for the California Peace Officers’ Association for over 25 years.