Workplace protective orders: Less-than-ideal protection for victims

This article was revised by the author on 8/12/14 to include reference to The Illinois Stalking No Contact Order Act.

 

The Workplace Violence Prevention Act (WVPA), which took effect on January 1, 2014, was an initiative of the Illinois Chamber of Commerce that passed unanimously in both chambers of the Illinois General Assembly and was signed into law by Governor Quinn in August 2013.1 The WVPA may help victims of violence in some circumstances, but it is far from ideal. Unlike other protections currently available to victims, it diverts attention away from the victim of violence.

The act provides that “An employer may seek an order of protection to prohibit further violence or threats of violence by a person if: (1) the employee has suffered unlawful violence or credible threat of violence from the person; and (2) the unlawful violence has been carried out at the employee’s place of work or the credible threat of violence can reasonably be constructed to be carried out at the employee’s place of work by the person.”2 An employer may seek a protective order by filing an affidavit showing that “an act of violence occurred at the employer’s place of business or that there was a credible threat of violence and there was opportunity to prevent it.”3

Victims of domestic violence or stalking already have some civil remedies available to them. Protective orders are available under the Illinois Domestic Violence Act of 1986 (DVA), which protects victims of domestic violence who are abused by other members of their household. Its remedies are wide-ranging, including orders concerning possession of a shared residence or personal property, stay away orders, orders to obtain counselling, orders concerning care and visitation of minor children, injunctive relief, prohibitions on accessing records, and prohibition of firearm possession.4

The Illinois Stalking No Contact Order Act (SNCOA) covers victims of stalking, which is defined as a “course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety or the safety of a third person.”5 A “course of conduct” is “two or more acts in which a respondent… follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other contact, or interferes with or damages a person’s property or pet.”6 A victim of stalking under SNCOA may obtain some remedies apart from the no contact order itself, including prohibitions on possessing firearms.7 For relief under SNCOA, a victim petitioner must prove by a preponderance of the evidence that the stalker engaged in a course of conduct (multiple acts) that amounted to stalking.8

Even given remedies already available to victims, there may be some value for the victim in the WVPA. In an ideal situation, your employer can be your intermediary in a time when you feel vulnerable. She can navigate the process on your behalf at the company’s expense. The image of the employer as a champion for his employees is appealing. Employers also have a responsibility to take reasonable measures to protect other employees, customers, and others in the workplace from threats of violence; however, this act takes the focus off of the victim of violence. It may also be confusing, embarrassing, or even potentially dangerous for victims.

Abuse is about power. Obtaining a protective order is one way a victim of abuse can proactively reclaim power and control over his or her situation. This act, in some situations, gives more power to the victim’s employer than to the victim. Under the WVPA, the victim is passive: the power belongs to his employer. In some cases, the employer even has more power to act than the victim does under DVA or SNCOA. For example, if a victim receives a single threat she feels is credible from a stranger or someone outside of her household, she can ask her employer to obtain a protective order on her behalf. If she wants to obtain a No Contact Order under the SNCOA, she has to have enough evidence to show a “course of conduct,” i.e. at least two acts that amount to stalking. If she wants a protective order under DVA, the threat would have to come from certain people, such as members of her household. A threat from someone outside of her household would not be covered under DVA, and for that threat to be covered under SNCOA, it would have to be a part of a course of conduct. All her employer must show under WPVA is a single credible threat of violence “that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.”9 In some ways, an employer has a lower burden of proof than does the victim herself seeking her own order.

Under the WVPA, an employer may seek a protective order on behalf of an employee who does not want one. There is no language in the statute that requires the employee/victim’s cooperation. If the employer reasonably fears for the safety of his employee (or his employee’s family) and the employee does not fear for his (or his family’s) safety and desires to maintain his and his family’s privacy, who wins? There is no requirement in the act that the victim actually desires a protective order or is subjectively afraid, only that the employer is objectively afraid for that employee. The employee may have reasons he does not want a protective order, such as fear of retaliation or even simple fear of embarrassment. Although workplace violence is a very real concern, an employer’s pursuit of a protective order on behalf of an employee could result in an embarrassing or potentially dangerous situation for that employee. Because domestic violence is inherently sensitive and personal, it may even open employers to tort liability in some circumstances.10

WVPA gives employers a tool to deter violence in the workplace, especially where the victim is unwilling or unable to act. Although this act has been praised for offering greater protection and options for victims of violence, it does little to empower those victims. As far as victims who are willing to obtain their own remedies are concerned, the act is somewhat redundant save the case of a single credible threat from someone not covered under DVA. In that case, there is more protection for a victim who happens to be employed. ■

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Amanda Hall is licensed to practice in Illinois and Indiana. She currently resides and practices in Evansville, Indiana and can be reached at amhall.jd@gmail.com.

 

1. Susan R. Heylman, Ill: Employers May Seek Restraining Order Against Workplace Violence, Society for Human Resource Management, (January 27, 2014) available at <http://www.shrm.org/legalissues/stateandlocalresources/pages/ill-employe.... See also, State of Illinois, 98th General Assembly, House of Representatives Transcription Debate, April 19, 2013 at 67-68.

2. Workplace Violence Prevention Act, 820 Ill. Comp. Stat. 275/15 (2014).

3. State of Illinois, 98th General Assembly, House of Representatives Transcription Debate, April 19, 2013 at 67-68.

4. Illinois Domestic Violence Act of 1986, 750 Ill. Comp. Stat. 60/214 (2014).

5. Stalking No Contact Order Act, 740 ILCS 21/10 (2014).

6. Ibid.

7. 740 Ill. Comp. Stat. 21/80.

8. 740 Ill. Comp. Stat. 21/30.

9. 820 Ill. Comp. Stat. 275/10.

10. Under the language of the Act, the threatened employee’s name would appear on the employer’s affidavit whether or not the employee wished to be involved and whether or not he actually felt threatened. Further, when an employer reveals private, sensitive facts about an employee, that employer could be liable in tort. (Miller v. Motorola, 560 N.E.2d 900, 202 Ill.App.3d 976, 148 Ill. Dec. 303 (Ill. App. 1 Dist., 1990). See also Julie Galassi Domestic Violence as a Workplace Issue, (2014) <http://www.hrbklaw.com/domesticViolenceWorkplace.shtml>. If a threat of violence is carried out and someone is injured, did the employer breach his duty to maintain a safe work environment? If the employer obtains a protective order and the employee sues for invasion of privacy, is the employer liable in tort for publication of private facts? Concerns about employer liability are beyond this scope of this opinion piece.