Report Title:

Workplace Violence

Description:

Establishes procedures to prevent workplace violence.

HOUSE OF REPRESENTATIVES

H.B. NO.

385

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE PREVENTION OF WORKPLACE VIOLENCE.

 

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

SECTION 1. The legislature finds that workplace violence:

(1) Is growing at an alarming rate throughout Hawaii and the United States;

(2) Results in approximately one and a half million assaults each year in the United States;

(3) Results in approximately one thousand deaths each year in the United States;

(4) Is the second leading cause of occupational fatalities in the United States; and

(5) Is the leading cause of occupational fatalities for women in the United States.

Recent events graphically and tragically demonstrate that the State of Hawaii is no longer immune from workplace violence. On November 2, 1999, the State of Hawaii suffered the worst workplace mass murder in its history. On that day, seven innocent men were gunned down and murdered at work by a coworker. These seven men--Jason Balatico, Ford Kanehira, Ronald Kataoka, Melvin Lee, Peter Mark, Ronald Kawamae, and John Sakamoto--were hard-working and long-time Xerox employees. These seven men were also husbands, fathers, and sons who left behind wives, children, parents, family, friends, and coworkers.

The legislature desires to protect the people of the State from the type of violence suffered by these men and the pain endured by their wives, children, parents, family, friends, and coworkers.

The legislature further finds that although employers in Hawaii are committed to maintaining safe working environments through the prevention of workplace violence, they currently lack efficient and effective tools to obtain judicial relief for the prevention of workplace violence.

The purpose of this Act is to provide a simple and efficient mechanism for employers and employees to obtain judicial relief for the prevention of workplace violence.

The legislature intends that this Act not be used to deter legitimate activities by employees or restrict lawful expressions of free speech.

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

"CHAPTER

PREVENTION OF WORKPLACE VIOLENCE

§ -1 Definitions. As used in this chapter unless the context clearly requires otherwise:

"Course of conduct" means 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 or in the employment of an employer. This term includes any volunteer or independent contractor who performs services for an employer.

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

(1) Any employment agency, any professional employer organization, any federal agency, the State, any state agency, any county within the State, any district within the State, or any private, public, or quasi-public corporation thereof or therein; and

(2) The officers, directors, trustees, agents, and legal counsel of any of the above-described legal entities.

"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.

"Family or household member" means any person residing with an employee and the employee's spouse, child, parent, sibling, grandchild, grandparent, or reciprocal beneficiary.

"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 person against whom relief is sought under this chapter.

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

"Violence" means any physical harm, bodily injury, assault, battery, psychological abuse, property damage, or threat of violence.

"Workplace" means any site, premises, location, or place where any employer conducts business operations or activities, regardless of the employer's:

(1) Ownership or tenancy status;

(2) Right to exclusive or nonexclusive use; or

(3) Operation or control of the site, premises, location or place.

§ -2 Proceeding to restrain or enjoin workplace violence. (a) Any proceeding under this chapter shall 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 action.

(b) Any employer who has either suffered violence from any person, including a coworker, or whose employee has suffered such violence, that can be construed as:

(1) Being carried out at the workplace;

(2) Having been carried out at the workplace; or

(3) A threat to be carried out at the workplace in the future;

may seek an ex parte temporary restraining order or a preliminary or permanent injunction, on behalf of the employer or one or more of its employees, prohibiting and enjoining further violence by the person who made the threats or who engaged in the violence.

(c) Any employee who suffered violence or a threat of violence from any person, including a coworker, that can be construed as:

(1) Being carried out at the workplace;

(2) Having been carried out at the workplace; or

(3) A threat to be carried out at the workplace in the future;

may seek an ex parte temporary restraining order or a preliminary or permanent injunction, on the employee's own behalf or on behalf of the employee's family or household members, prohibiting and enjoining further violence by the respondent.

(d) A request for relief under this chapter shall:

(1) Be in writing;

(2) Allege that violence or a threat of violence has occurred or may occur in the future unless restrained; and

(3) 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 shall enter a temporary restraining order against the respondent without a hearing upon a determination that:

(1) There is probable cause to believe that violence has occurred, may be imminent, or may occur in the future;

(2) Irreparable harm may result to the employer, the employee, or the employee's family or household members if the request for relief is denied; and

(3) 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 to be restrained or enjoined. (a) Any temporary restraining order or preliminary or permanent injunction issued under this chapter shall enjoin the respondent from:

(1) Engaging in any violence;

(2) Making any threat of violence;

(3) Contacting or threatening the petitioning employee, the employee's family or household members, or any other employee of the employer;

(4) Engaging in any physical contact with the petitioning employee, the employee's family or household members, or any other employee of the employer;

(5) Entering or visiting the residence of the petitioning employee, the employee's family or household members, or any other employee of the employer;

(6) Entering or visiting the petitioning employee's workplace;

(7) Entering or visiting the employer's workplace;

(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, the employee's family or household members, or any other employee of the employer;

(10) Contacting the petitioning employee, the employee's family or household members, or any other employee of the employer by any means including telephonic, written, or electronic contacts; and

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

(b) In addition to ordering the relief sought by the petitioner, 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; and

(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.

§ -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 that upon the request of the petitioner, the court may extend the temporary restraining order for similar periods of time until the request for injunctive relief can be heard.

§ -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 court shall receive any testimony that is relevant and that may indicate a propensity for violence by the respondent. If the court finds by a preponderance of the evidence that:

(1) The respondent engaged in violence;

(2) Future violence is possible; or

(3) That 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's 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 chapter 378 or its administrative rules.

§ -6 Duration of injunction. A preliminary 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 injunction at any time before expiration of the existing preliminary 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 order or warrant was issued. The receiving county police department shall immediately effect personal service of the temporary restraining order, preliminary or permanent injunction, or order or warrant upon the respondent.

If the petitioner elects not to transmit any temporary restraining order, preliminary or permanent injunction, or other order or warrant to the county police department, petitioner may request that any temporary restraining order, preliminary or permanent injunction, or other order or warrant issued under this chapter be forwarded by the clerk of court to the appropriate county police department and any such request by petitioner shall be carried out by the clerk of the court within twenty-four hours of the request. 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 or warrant issued under this chapter.

§ -8 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.

§ -9 Effect on other laws. (a) Nothing in this chapter shall be construed as:

(1) Creating, expanding, diminishing, altering, or modifying the duty, if any, of an employer to provide a safe workplace for employees and other persons;

(2) Creating a duty or other obligation on an employer to invoke or use the provisions of this chapter in any given circumstance, and the failure to invoke or use the provisions of this chapter shall not form the basis for any claim or liability against an employer; and

(3) 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) No civil liability shall attach or be imposed upon any employer or employee for:

(1) Initiating a proceeding under this chapter;

(2) The commission of acts or the making of statements in connection with any proceeding under this chapter; or

(3) Acts or statements made in connection with the investigation of any alleged threat of violence or act of violence in the workplace to the extent the acts or statements are made in support of or in furtherance of the initiation of a proceeding under this chapter. Nothing in this paragraph shall affect the liability of any employer or employee for acts or statements not made in connection with an investigation in support of or in furtherance of the initiation of a proceeding under this chapter or not made in connection with the actual initiation of proceedings under this chapter.

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

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________