What Wisconsin Employers Should Know About Employee Restraining Orders
When an employee obtains a restraining order against a third party or coworker, the implications may spill into the workplace. This article explains what role employers play in handling and enforcing restraining orders.
Restraining Order Basics
A restraining order is a document signed by the court that prevents the wrongdoer from contacting the victim and may include other restrictions, as well. There are several types of restraining orders, but the two most common types that employers will encounter are harassment and domestic abuse restraining orders.
A harassment restraining order may be issued if someone is: (1) striking, shoving, kicking or otherwise subjecting the victim to physical contact; (2) engaging in child abuse or sexual assault; (3) stalking; or (4) engaging in a course of conduct or repeatedly committing acts which harass or intimidate the victim and which serve no legitimate purpose. A domestic abuse restraining order may be issued if the parties are related, have a child in common, or currently or formerly dating or living together, and if someone is: (1) intentionally threatening or inflicting physical pain or injury; (2) impairing another’s physical condition; (3) damaging personal property; (4) stalking; or (5) engaging in unwanted sexual contact. There must be proof of imminent danger of physical harm in order for a restraining order to be issued.
Restraining orders are temporary and expire within 14 days. Within that time, there will be a court hearing, where the judge will decide whether to issue an injunction. An injunction extends the restraining order up to four years. If the judge denies the injunction, then the restraining order expires at that time as well. Any reference in this article to “restraining orders” includes injunctions.
The restraining order outlines a list of specific actions that are prohibited. Typically, they prevent the wrongdoer from contacting the victim in person, by phone, in writing, or through other electronic means. This includes indirect contact communicated through a third party, such as a friend or relative. Only indirect communication through an attorney or police officer is permitted. Restraining orders also prohibits contact at the victim’s home, work, school, or any other public place. There may be a specific distance the wrongdoer has to maintain away from the victim (like 100 feet), but only if the victim specifically requests it and the request is reasonable. Distance requirements are less common in Wisconsin than in other states.
Restraining orders and injunctions dictate the behavior of the wrongdoer. They do not dictate the behavior of the victim, co-workers, or employers. Although employers are not legally required to enforce restraining orders, employers often play a critical role in supporting employees and maintaining a safe work environment. This may necessitate enforcing, or at least accommodating, a restraining order.
There are many accommodations that will help to protect the safety of an employee who is the victim of harassment or domestic abuse. For example, the employee’s job duties could be modified so that the employee is less exposed to the general public. An employee with high visibility, such as a receptionist, may need to be relocated to an interior office space. An employee’s direct phone number may need to be deleted from the company’s website or public directories and receptionists should be instructed to screen calls to that employee before transferring the caller through. Employers can verify that employee entrances to the building and parking areas are secure. Another accommodation may involve adjusting the employee’s work schedule to ensure the employee is not at the office alone, or coordinating for co-workers to escort the victimized employee to and from the employee’s vehicle. Employers can further assist the employee in documenting unwanted behavior and preserving evidence, such as phone logs, emails, visitor check-in sheets, video surveillance, and mail.
The employer’s role is more complicated when one employee obtains a restraining order against another employee. Again, while employers are not legally required to enforce or carry out the terms of a restraining order, it will benefit the workplace and productivity for employers to make reasonable accommodations that will help employees succeed. At a minimum, employers should consider the feasibility of separating the two employees’ work locations and schedules. Unless the restraining order contains a specific exception for employment, the wrongdoer will be unable to come into contact with the victim co-worker even at work. Therefore, if it is not possible to separate the two employees, that may have the unintended consequence of forcing the wrongdoer to quit.
Employers should also consider the impact of the restraining order on the rest of the staff, and whether it creates an uncomfortable atmosphere or concerns about the safety of other co-workers. Employers may need to determine whether the abusive activity occurred at work or whether office resources were used to aid in the activity. Additionally, employers also must address whether the activity violates an employee handbook, code of conduct, or some other company policy. If those policies do not yet exist, employers may want to consider adopting domestic violence, sexual harassment, stalking, harassment and other policies containing explicit provisions of what is expected of employees and the consequences of violations.
The extent an employer needs to be involved depends on the circumstances. Some states allow employers to petition for restraining orders on behalf of employees, but Wisconsin does not. Physical violence occurring at the workplace requires a higher and more immediate level of response than other types of abuse. Although employers are not tasked with enforcement, employers may report any violation to law enforcement officers. Violations of restraining orders result in immediate arrest.
Restraining orders reflect the culmination of abuse, after it has gotten to the point where the victim is in imminent danger and the court is involved. Take the issue seriously, treat the victimized employee with sensitivity, and make accommodations wherever possible to protect the safety of your workforce.
This article, slightly modified to note recent updates, was featured in the December 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.