IF YOU ARE IN DANGER, CONTACT THE POLICE IMMEDIATELY – THEY CAN OBTAIN AN EMERGENCY PROTECTIVE ORDER 24 HOURS A DAY.
You are eligible to request a workplace violence restraining order if:
- You are an employer; and
- You ask for a restraining order to protect an employee who has suffered stalking, serious harassment, violence, or a credible (real) threat of violence at the workplace.
- An employee cannot request a workplace violence restraining order. Employees can file requests for a civil harassment restraining order (or other types of appropriate restraining orders).
This page only explains how to file a workplace violence restraining order in California. We also provide information on how to defend a restraining order file a civil harassment restraining order, a domestic violence restraining order and an elder abuse restraining order.
Fill Out the Forms
You need to fill out, sign, and file the following documents:
- Form WV-100 → this form provides the judge with the details of your particular circumstances, and what you are asking the court to do.
- Form CLETS-001 → this form provides law enforcement with information about the person to be restrained.
- Items 1, 2 and 3 on Form WV-109 → this form will tell both you and the party you are seeking to restrain when to come to court for the hearing.
- Form WV-110 → this form requests that a temporary restraining order is granted until the hearing date.
- Form MC-031 → this form is used for any statements of witnesses that will support your side of the story.
Again, note that if you are an employee or an employer who needs a restraining order to protect yourself and not an employee, the proper course of action is to request a civil harassment restraining order. Filing a request for the wrong kind of order can cause your restraining order to be dismissed and force you to file the motion again and start from the beginning. Further, if the court does not inform you of the mistake when the temporary restraining order is filed, the result can be an entire month of time wasted without the correct type of motion being filed. It is always advisable to hire an experienced restraining order attorney if you are considering requesting protection. If you are unsure about what kind of restraining order to file, an attorney can assist you with that determination and file the correct type of request.
Unlike other types of restraining orders, workplace violence restraining orders are not requested by individuals. Instead, they are requested by an entity, such as a corporation, a partnership, a non-profit organization, a governmental or state agency, or other type of legitimate organization where employees work. An attorney for the entity may appear on its behalf without the need for an actual officer or other responsible individual. While only having an attorney present at the hearing can present evidentiary issues, the declarations and evidence contained within the documents that have been filed are often sufficient to sustain the burden of proof.
File the Documents
File the documents with the court. You will receive a hearing date and the judge will review Form WV-110 and sign it if a temporary restraining order is granted. The judge may also make changes to the parameters of the temporary restraining order.
Serve the Documents
Have the person from whom protection is sought personally served. The person being served must be given a copy of the documents you filed and BLANK copies of:
- Form WV-120.
- Form WV-250 → the person you are seeking to restrain must be served by the deadline the judge writes on documents (item 6; pg 2 Form WV-109).
- You then must file Form WV-200 with the court.
Response & Hearing
The person who you are seeking to restrain may file a response. The response will give you an indication of what evidence the respondent will likely rely on in the hearing and will include witness statements or descriptions of evidence that you can consider how to respond to.
While you cannot know exactly what the witnesses will testify to and certainly cannot know exactly what they will testify to on cross examination, you will have some idea after reading their response. The response may also indicate the presence of legal or procedural problems with your case that the respondent will attempt to use to have the restraining order request denied. If the procedural problem alleged is that the wrong type of restraining order was requested, you should consult with a qualified lawyer to determine what the next steps should be. That being said, an allegation of a procedural defect with your restraining order request is just that: an allegation. It is not a judge’s decision into the validity of your request and if you have a counter-argument to a procedural objection, that information may help the judge in his or her determination.
Sometimes, the respondent will fail to file a response to the paperwork at all and other times he or she may elect not to attend the hearing. There is no requirement that a respondent take any action in response to a restraining order. However, a respondent’s failure to act in response to restraining order request can never hurt a petitioner’s case and can often help. At the hearing, if the restraining order is granted, file and serve Form WV-130 after it is signed by the judge. If the judge decides in favor of the petitioner, the matter can be appealed, but only for judicial error (an error in a determination of a legal issue, not a determination regarding the weight of the evidence or who is telling the truth). If not appeal is possible, the only legitimate course of action is to simply wait until additional conduct occurs.
A restraining order cannot be filed a second time after being denied absent new conduct by the respondent that would lead to the issuance of a restraining order. If a petitioner files a restraining order alleging the same conduct as was alleged in a previous restraining order request that was denied, the course of action is simple: the respondent should simply make the judge or commissioner aware of the prior case, provide the pleadings from the previous restraining order to the judicial officer, and request that the current restraining order case be denied. This principle also applies to civil harassment hearings, elder abuse hearings, and domestic violence restraining order requests.
Many courts request or insist that the parties attend mediation prior to their restraining order hearing. Mediation is an informal process whether both sides discuss the case with an independent individual who attempts to resolve the dispute. The mediator will listen to both sides and give his or her opinion on a proposes settlement, if possible. Neither side is required to accept the recommendation of the mediator and is always permitted to proceed to the actual restraining order hearing, with evidence being heard in the form of testimony and / or documents.
Who is an Employee and Employer?
When a judge is considering who, for the purposes of a workplace violence restraining order request, is an employer and who is an employee, he or she considers the following rules:
An employer is any person who is engaged in any by or in a business or enterprise in California that, “has one or more persons in service under any appointment, contract of hire, or apprenticeship, express or implied, oral or written, irrespective of whether the person is the owner of the business or is operating on a concessionaire or other basis.” An employer is also a state agency or the state of California itself, any municipality, or, “district, and a private, public, or quasi-public corporation, or any public agency thereof or therein.”
“An ‘[e]mployee’ also includes the members of boards of directors of private, public, and quasi-public corporations and elected and appointed public officers.. an ’employee’ also includes a volunteer or independent contractor who performs services for the employer at the employer’s work site.”
An employee also includes every person, “including aliens and minors, rendering actual service in any business for an employer, whether gratuitously or for wages or pay, whether the wages or pay are measured by the standard of time, piece, task, commission, or other method of calculation, and whether the service is rendered on a commission, concessionaire, or other basis.”
These classifications of employer and employee determine who can file a workplace violence restraining order and who that restraining order request can attempt to protect.
How to Fight a Workplace Violence Restraining Order
If someone is trying to obtain a Workplace Violence Restraining Order against you, they need to serve you with the following forms:
- Form WV-100 – this form has all the details of the restraining order and what is being alleged against you. Read this form carefully because it tells you what you are and are not allowed to do.
- Form WV-109 – this form tells you the date, time, and place of the court hearing.
- A blank copy of Form WV-120.
You need to read the forms that the other party filed with the court and served on you to find out exactly what they are alleging. Then fill out the Form WV-120 with your response. You need to respond with provable facts that dispute what is being alleged against you. Then file the form with the court and mail it to the other party.
Attach any documents that help with your case to the hearing. If there are any witnesses, get their statements in writing or bring them to court with you. If you have any photographs, a police report or any other evidence, make sure to attach them to your response and to bring it to the hearing.
When defending a workplace violence restraining order, it is always best to contest the evidence brought by the petitioner in a methodical and respectful way. Simply accusing the petitioner or the petitioner’s witnesses of lying or otherwise misrepresenting facts will not help. The judge will want any evidence or arguments made in defense of the respondent to be polite and respectful while advocating the appropriate position. It must be shown why the petitioner’s evidence is untrue if the facts as alleged would justify a workplace violence restraining order.
In other situations, where the evidence, even if all allegations are assumed to be true, would not be enough to justify the issuing of a restraining order, the best course of action is simply to allow the evidence to be heard and to rely on the lack of proof or lack of conduct justifying an order. Basically, if the facts clearly fall on the respondent’s side, presenting evidence as “overkill” or out of spite can backfire, creating avenues for the petitioner to win where none previously existed. After all evidence is completed, the judge will decide whether or not the restraining order should be granted against you.
For practical reasons, a workplace violence restraining order can be difficult to defend without an attorney. First, if the temporary workplace violence restraining order is granted, the respondent could have trouble talking to witnesses or collecting evidence himself or herself if the terms of the temporary restraining order prohibit such conduct.
The temporary restraining order can and often does prohibit the former employee from having contact with certain individuals and will almost certainly contain a provision prohibiting the respondent from being physically present at the job site, where evidence or witnesses may be located. This is why hiring an attorney, who is not bound by the terms of the order, can be beneficial. Further, a private investigator working with a restraining order attorney can assist in the collection of evidence and can also conduct witness interviews. This type of evidence gathering can often mean the difference between a restraining order being granted or denied.
Workplace Violence Restraining Order Conditions
The conditions a court imposes on a workplace violence restraining order are similar to those imposed in a elder abuse restraining order, a domestic violence restraining order and a civil harassment restraining order. Most often, the judge, if he or she grants the restraining order, will issue a “no contact order.” This type of order means that the restricted person (here, the respondent / employee) must stay away from the protected person and / or place (here, the place of business and the employees of the business named in the order). In the case of an employee being restrained against another employee, this obviously means that the restrained employee cannot return to work if he or she works at the same location as the protected employee. The protected employee should be free from any concern that the restrained employee will return.
This type of no contact order cannot be subverted by using telephone, facsimile, text message, or any other type of electronic communication; they are all prohibited. Further a workplace violence restraining order where a no contact order has been issued prohibits the respondent, the restrained person, from using third parties (any other person acting at the direction or on behalf of the petitioner) to contact the petitioner or any protected person or place.