Report Title:

Employment

 

Description:

Creates rules of proceedings for cases involving workplace violence prevention.

 

THE SENATE

S.B. NO.

1318

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO EMPLOYMENT.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to create a simple and efficient mechanism for employers and employees to obtain judicial relief for the protection of workplace violence similar to existing mechanisms available to individual citizens under harassment and domestic abuse laws.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

WORKPLACE VIOLENCE PROCEEDINGS

   -1 Definitions. For the purposes of this chapter:

"Course of conduct" is a pattern of conduct composed of a series of two or more acts over a period of time, however long or short, evidencing or indicating a continuity of purpose or evidencing or indicating a propensity for violence.

"Employee" means any person suffered or permitted to work in the employment of an employer, including any volunteer or independent contractor who performs services for an employer, and the employee's immediate family and household member.

"Employer" means any individual, partnership, association, joint-stock company, trust, estate, corporation, or other entity having one or more persons in its employment.

"Employment" means any service performed by an individual for another person under any work or service relationship, contract of hire, or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into.

"Household member" means any person residing with an employee or a person employed by an employer.

"Immediate family" means a spouse, child, parent, sibling, grandchild, grandparent, or reciprocal beneficiary of an employee or a person employed by an employer.

"Petitioner" means any employer or employee who seeks relief under this chapter.

"Property damage" means intentional or knowing damage to the property of another that is made without the property owner's express consent.

"Psychological abuse" means an intentional or knowing course of conduct directed at an employee that alarms, disturbs, or bothers the employee.

"Respondent" means any individual against whom relief is sought under this chapter.

"Threat of violence" is any verbal or written statement or course of conduct that would place a reasonable person in fear for one's personal safety or the safety of the immediate family or household members or co-employees or the safety and integrity of property.

"Violence" means any physical harm, bodily injury, assault, battery, psychological abuse, or property damage, as well as any verbal or written threat of physical harm, bodily injury, assault, battery or property damage, regardless of whether such threat of physical harm, bodily injury, assault, battery, or property damage is actually committed or consummated.

"Workplace" means any site, premises, location or place where any employer conducts business operations or activities, regardless of the employer's ownership or tenancy status, and regardless of the employer's right to exclusive use or non-exclusive, operation or control of the site, premises, location or place.

   -2 Proceedings to restrain or enjoin workplace violence. (a) Any proceeding under this chapter may be brought in the circuit court in which the respondent resides. The proceeding may be initiated as either a special proceeding, without the filing of a complaint, or as a regular civil proceeding.

(b) Any employer, whose employee has suffered violence or a threat of violence from any individual, including but not limited to a coworker, that can be construed to be carried out at the workplace, or to have been carried out at the workplace, or that may be carried out at the workplace in the future, may seek an ex parte temporary restraining order or a preliminary injunction or a permanent injunction on behalf of the employer or one or more of its employees prohibiting and enjoining further violence or threats of violence by the individual who has made the threats or who has engaged in the violence.

(c) Any employee who has suffered violence or a threat of violence from any individual, including but not limited to a co-worker, that:

(1) Can be construed to:

(A) Be carried out at the workplace; or

(B) Have been carried out at the workplace; or

(2) May be carried out at the workplace in the future, may seek an ex parte temporary restraining order or a preliminary injunction or a permanent injunction on one's behalf, or one's immediate family, or one's household members, prohibiting and enjoining further violence or threats of violence by the individual who has made the threats or who has engaged in the violence.

(d) A request for relief under this chapter shall be in writing and allege that violence or a threat of violence has occurred, may have occurred, or may occur in the future unless restrained, and shall be accompanied by one or more affidavits made under oath or one or more declarations made under penalty of perjury stating the specific facts and circumstances under which relief is sought.

(e) Upon request for relief under this chapter, the court may enter a temporary restraining order against the respondent without a hearing upon a determination that:

(1) There is good cause to believe that violence or a threat of violence has or may have occurred;

(2) Violence or threat of violence may be imminent or may occur in the future;

(3) Irreparable harm may result to the employer or employee if the request for relief is denied; or

(4) Providing notice to the respondent might trigger the very violence or threat of violence sought to be restrained.

The court may issue an ex parte temporary restraining order either orally or in writing, provided that an oral order shall be reduced to writing by the court as expeditiously as practicable following issuance of the oral order.

   -3 Acts of violence and threats of violence to be restrained or enjoined. (a) Any temporary restraining order, preliminary injunction, or permanent injunction issued under this chapter shall enjoin the respondent from performing any of the following acts:

(1) Engaging in any violence;

(2) Making any threat of violence;

(3) Contacting or threatening the petitioning employee or any person employed by the employer;

(4) Engaging in any physical contact with the petitioning employee or any person employed by the employer;

(5) Entering or visiting the residence of the petitioning employee or any person employed by the employer;

(6) Entering or visiting the petitioning employee's place of employment;

(7) Entering or visiting the employer's place of business;

(8) Possessing, controlling, or using any firearm or ammunition while the restraining or injunctive order is in effect;

(9) Approaching to within one hundred feet of the petitioning employee or any person employed by the employer;

(10) Contacting the petitioning employee or any person employed by the employer by any means including, but not limited to, telephonic, written, or electronic contacts;

(11) Any other restriction, limitation or order that, in the discretion of the presiding judge, is necessary or desirable under the circumstances.

(b) The court may also order:

(1) Reimbursement of the petitioner's reasonable medical expenses, including reasonable expenses for mental health counseling;

(2) Reimbursement of the petitioner's reasonable attorneys' fees and costs; or

(3) Any other appropriate relief necessary to fulfill this chapter's purposes of preventing and ameliorating the effects of workplace violence and threats of workplace violence.

(c) Any temporary restraining order issued under this chapter shall also affirmatively direct the respondent pursuant to section 134-7(f) to immediately and affirmatively surrender all firearms, ammunition, ammunition loading, packing, or manufacturing devices in one's possession, custody, or control to the appropriate county police department for safekeeping until further court order.

(d) Consistent with the Fourth Amendment of the United States Constitution and with article I, section 7, of the state constitution, if the court has probable cause to believe that the violence or threat of violence sought to be restrained under this chapter involves the use of a firearm or the threatened use of a firearm, any temporary restraining order or preliminary or permanent injunction issued under this chapter may contain an affirmative directive to the appropriate county police department mandating that the county police department shall immediately search the respondent's premises and property (including, but not limited to, the respondent's current residence and all motor vehicles registered in the respondent's name or to which respondent has access), for the purposes of locating and seizing any and all firearms, ammunition, ammunition loading, packing, or manufacturing devices found during any such search, and to take any and all firearms, ammunition, ammunition loading, packing, or manufacturing devices located during such search into custody until further order of the court. The county police department may dismantle and render inoperable any ammunition loading, packing, or manufacturing device discovered during the search that is too large, bulky, or heavy to be taken in whole into custody, transport, or storage. The removed part may be taken into custody and storage. A temporary restraining order or preliminary or permanent injunction containing such a directive must be based on probable cause and shall be deemed to be a search warrant issued upon probable cause under chapter 803. The county police department conducting any search and seizure under this chapter, following the search and seizure, shall immediately provide the petitioner and petitioner's legal counsel with a complete written inventory list of any and all firearms and any and all other items and things seized and taken into custody during the search and seizure and file a return of service of the order, with the inventory list as an exhibit thereto, with the issuing court. If no firearms or other items and things are seized during any search under this chapter, the county police department conducting the search shall immediately so inform the petitioner and petitioner's legal counsel.

   -4 Duration of temporary restraining order. A temporary restraining order granted under this chapter shall remain in effect for a period not to exceed ninety days from the date the temporary restraining order was granted provided, however, that either upon request of the petitioner or upon sua sponte decision of the court, the court may extend the temporary restraining order for periods of similar duration from time to time.

   -5 Hearing on request for injunctive relief. (a) Prior to the expiration date of any temporary restraining order issued under this chapter, the court shall hold a hearing on any request for preliminary or permanent injunctive relief. The respondent may file a response that explains, excuses, justifies, or denies the alleged violence or threats of violence. At the hearing, the judge shall receive any testimony that is relevant and indicates a propensity for violence by the respondent. If the judge finds by a preponderance of the evidence that the respondent engaged in violence or made a threat of violence, that future violence is possible or that future threats of violence are possible, or that the respondent has a propensity for violence, a preliminary or permanent injunction shall issue prohibiting further violence or threats of violence containing, at a minimum, those restrictive provisions and affirmative directives described in section -3.

(b) An employee or employer's use, attempted use, or introduction into evidence of a respondent's arrest and court record in connection with any proceeding authorized by this chapter shall not constitute a violation of any provision in chapter 378 or the rules adopted under chapter 378.

   -6 Duration of injunction. A preliminary or permanent injunction issued pursuant to this chapter shall have a duration of not more than five years. The petitioner may apply for periodic renewals of the preliminary or permanent injunction at any time before expiration of the existing preliminary or permanent injunction by filing a motion with the court.

   -7 Service of restraining orders and injunctions. The petitioner may transmit any temporary restraining order, preliminary or permanent injunction, or other order or warrant to the county police department in the circuit in which the temporary restraining order, preliminary or permanent injunction, or warrant order was issued. The receiving county police department shall immediately effect personal service of the temporary restraining order, preliminary or permanent injunction, or warrant order upon the respondent.

   -8 Restraining orders and injunctions; law enforcement agencies. If the petitioner elects not to transmit any temporary restraining order, preliminary or permanent injunction, or other warrant or order to the county police department, the petitioner may request that any temporary restraining order, preliminary or permanent injunction, or other order issued under this chapter shall be forwarded by the clerk of court to the appropriate county police department. The request shall be honored within twenty-four hours of its receipt. Each county police department shall make available to other law enforcement officers in the same county, through a system for verification, information as to the existence of any temporary restraining order, preliminary or permanent injunction, or other order issued under this chapter.

   -9 Violation of restraining order or injunction. Any violation of a temporary restraining order, preliminary or permanent injunction, or other order issued pursuant to this chapter shall be punishable as criminal contempt under section 710-1077. In addition, any violation of the prohibition on the possession, control, or use of any firearm or ammunition contained in any restraining order or preliminary or permanent injunction issued pursuant to this chapter shall be punishable as an offense under section 134-7.

   -10 Effect on other laws. (a) Nothing in this chapter shall be construed as creating, expanding, diminishing, altering, or modifying the duty, if any, of an employer to provide a safe workplace for employees and other persons. Nothing in this chapter shall be construed as creating a duty or other obligation in an employer to invoke or utilize the provisions of this chapter in any given circumstance and the failure to invoke or utilize the provisions of this chapter shall not form the basis for any claim or liability against an employer. Nothing in this chapter shall be construed as 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.

(b) There shall be no civil liability for any employer or employee who initiates a proceeding under this chapter or who commits acts or makes statements in connection with any proceeding under this chapter or in connection with the investigation of any alleged threat of violence or act of violence in the workplace.

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

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________