Protection Order Guide
Your employee may, at some time, obtain a protection order to protect himself or herself from violence or one of your employees may be subject to a protection order for perpetrating violence. What does this mean to you as an employer?
I. What is the connection between protection orders and your workplace?
Workplace safety has been a concern for workers, the government, unions, law enforcement, and others for many decades. Workers should be able to earn a living free from hazards, threats, and other dangers arising from violent conduct. Beyond the traditional occupation-based threats to safety, employees experience very real threats to their safety from personal relationships or their status as victims of domestic violence, stalking or sexual assault, including sexual harassment that occurs in the workplace. What can you do to assist those employees? What should you do?
It is absolutely within your best interest as an employer to promote a safe and secure workplace for employees. Safety and security at work encourages productive employees. And that is your concern.
- The Centers for Disease Control and Prevention estimates that the annual cost of lost productivity due to domestic violence equals $727.8 million, with more than 7.9 million paid workdays lost each year.1
- Women stalked by an intimate partner averaged the largest number of days lost from paid work (10.1).2
- Women raped lost an average 8.1 days from paid work.3
- Victims of intimate partner physical assault lost 7.2 days on average per victimization.4
Inevitably, an employee's concerns about personal violence or about violence and harassment may impact work productivity. But there are bigger concerns than the bottom line. There are a host of considerations that you as an employer have when it comes to one of your employees being victimized at home or at work, by an intimate partner, by an acquaintance, or by a stranger. The CDC report, Surveillance for Violent Deaths - National Violent Death Reporting System, 16 States (2007), found that 2.1% of domestic violence homicides take place at work in a commercial or retail setting. In the United States, it is estimated that ignoring problems of sexual harassment can cost the average company up to $6.7 million a year in low productivity, low morale, and employee turnover and absenteeism, not including litigation or other legal costs. Sexual violence in the workplace results in similar losses of productivity, absenteeism, and morale, in addition to higher healthcare costs for employers and employees alike.
In 2004, Shennel McKendall was murdered outside her workplace in Chapel Hill, North Carolina. Neither the campus police nor her workplace at the hospital knew of her troubles. She had not sought extra protection at work. She had a protection order, but no one at work knew about it.5
Petitioner: A petitioner starts a civil or private (non-criminal) action by going to court and filing a request or petition. In this case, the petitioner is likely the victim of violence or stalking (but sometimes a perpetrator will initiate a petition and claim to be the victim). In some jurisdictions, such as in the State of California, the petitioner may also be the employer.
Respondent: A respondent "responds" to the petition, and in this case is the alleged perpetrator of violence or stalking. A respondent (called "defendant" in some jurisdictions, but that term is usually reserved for criminal actions) has a specific amount of time to answer the allegations of violence or stalking listed in the petition. The response can range from "I agree to stay away from this person" to "the violence never happened and I'm going to disagree with this petition and all allegations in it."
Injunction: An injunction is an order from a court directing one or more parties to refrain from committing certain acts, or directing them to do certain acts.
Protection order: A protection order is a form of injunction in which a civil or criminal court instructs a party to do or to stop doing something or else face civil or criminal penalties. In the present context, a victim of violence (known as the petitioner) requests that the court tell the alleged perpetrator (known as the respondent or defendant) to stop harassing, stalking, contacting, abusing, etc., the petitioner.
Ex parte: This means that only one party is present before the court. In seeking a protection order, initially only the petitioner is present, but the court may still order a temporary order, provided the respondent is given notice and the opportunity to appear in court and tell his or her side of the story.
Civil versus criminal proceeding: In a civil case, the petitioner generally determines whether the action will continue, and at any time can drop the action by filing a motion to withdraw. The state, tribe, or in some cases, the U.S. Attorney's Office, initiate criminal cases after someone has been arrested by the police and charged with a crime. The prosecutor determines whether or not to prosecute the defendant. Thus, in contrast to a civil action, the state, tribe, or the U.S. Attorney's Office are in charge of criminal cases, and victims of crimes are witnesses rather than parties to a case.
Contempt: A party or person before the court (e.g., as a witness) can be held in contempt for failure to follow the court's order or injunction. There are two kinds of contempt of court: civil and criminal. Civil contempt generally refers to a party's failure to perform an action that a court has ordered, such as pay child support, or to refrain from doing something the court has forbidden, like contacting another person. The damaged party (e.g., petitioner) can ask the court to punish the party who is causing the damage. For civil contempt, the court's goal is to make the petitioner whole, as if the harm had not been done. A contempt case ends when the offending party complies with the court's order.
Criminal contempt generally addresses actions or inactions in the court, such as a party's disruptive behavior or refusal to testify. But in some jurisdictions, the failure to comply with a protection order is criminal contempt and can result in a jail sentence. In criminal contempt, the court's motivation is to punish the offending party for his or her actions or inactions.
III. Protection Order Basics
How much time away from work will my employee need to get a protection order?
While the protection order process has been streamlined to make it as easy as possible for someone who has been victimized to get help from the court, the procedure is far from simple. In many cases, the petitioner will need several trips to the court over the course of several weeks or even months. To obtain and enforce an order, a petitioner must complete the following steps (depending on his or her specific circumstances and the laws in the jurisdiction where the person is requesting the order):
- Complete the forms, file the initial petition and then wait to see a judge. This can take all day in some cases.
- Return to court for a hearing after a respondent has been given notice of the requested order.
- If a respondent cannot be reached with notice of the proceeding, the court might need to reschedule the hearing, sometimes more than once, requiring a petitioner's return to court.
- If a respondent violates an order, the petitioner may have to return to court to file a motion for contempt or testify in a criminal proceeding if the violation was a crime under the jurisdiction's law. A petitioner might need to return more than once to enforce other requirements of an order, such as payment of child support.
- If an order is about to expire, petitioner might need to ask for an extension of the protective provisions when the violence has not stopped or the petitioner still fears the respondent.
An employee will require time away from work for each trip to court to obtain or enforce a protection order. Courts are typically open only during normal business hours, and the amount of time away from work will depend on the facts of the particular case as well as the court's workload.
How may an order of protection impact the workplace?
This depends on the protection sought by the individual and the protections available under state, federal, local, and/or tribal law. A petition for a protection order generally includes a "stay-away" provision, prohibiting the respondent from coming within a certain number of feet of the victim. A civil protection order may also include a list of places where the respondent is prohibited from entering, under the logic that these are places where the petitioner frequents and the respondent does not have a necessity to visit. Examples include:
- the petitioner's home (if the respondent and the petitioner shared a home the order may require that the respondent vacate the home);
- petitioner's workplace;
- anywhere the petitioner might frequent on a regular basis.
In most jurisdictions, the petitioner may seek temporary custody of children, and if temporary custody is ordered, the order may also include stay away provisions that apply to the children, including prohibiting the respondent from coming to the child's school or after school care program. In most jurisdictions, the courts will specify a certain distance the respondent must remain from the prohibited places, e.g., "respondent is prohibited from coming within 500 feet of the petitioner's workplace located at 123 Main Street."
Additional relief provisions can also include:
- exclusive use of the parties' home (e.g., the offending party must leave the residence immediately; in some cases, law enforcement will evict the respondent)
- custody, visitation, possible safety provisions when parents exchange children at the beginning or end of visits, or independent supervision of a parent's visitation with children
- child support
- spousal maintenance (a.k.a. "alimony")
- bill payments (e.g., utilities)
- wage garnishment
- rental or mortgage payments
- forfeiture of guns or other weapons, etc.
My employee does not want to seek a protection order. Should I request one on his or her behalf?
This is a difficult question. Some jurisdictions permit an employer to petition for a general restraining order against a person, such as a disgruntled former employee or someone who causes disruptions or harasses employees at the workplace. However, some jurisdictions, including Arizona, Arkansas, and California6, permit an employer to petition for a protection order on behalf of someone experiencing violence whether or not the employee requests an order.
While this tool might appear to enhance workplace safety under certain circumstances, it is vitally important to keep the victim/employee involved in all decisions regarding a protection order on his or her behalf. Moving ahead without regard to a victim's wishes in this context could pose a serious safety risk for him or her and potentially other employees. Before embarking on this legal option, it is strongly encouraged that you have a conversation with the victim, determine his or her wishes and concerns, consider safety risks and possible solutions in getting a protection order, and refer the victim to an expert to continue safety planning. No decision should ever be made to obtain a workplace order of protection without involving the victim. In North Carolina and Nevada, for example, the law requires an employer to notify or consult with the employee-victim prior to petitioning the court for a protection order on the employee's behalf.
Why might it be dangerous for my employee after he or she receives a protection order, or if I obtain one on his or her behalf?
A victim of domestic, sexual, or dating violence and stalking is always at risk. However, the victim's separation from an abuser (if the victim was in a relationship with the abuser) or a victim's initiative to hold a perpetrator accountable for the violence, may greatly increase the risk of retaliation or additional violence against a victim. Consider:
- Over 70% of the women injured in domestic violence cases are injured after separation.7
- Estrangement, in addition to a past history of violence, is a leading predictor for lethality in intimate partner relationships.8
- A recent study found that the biggest risk factor for ongoing violence and protection order violations is the presence of stalking behaviors.9 Stalkers often utilize the workplace to monitor and harass their victims.
IV. My employee has obtained a protection order. What can I do to help? What are my responsibilities?
You have a vital role to play if an employee informs you that he or she has obtained a protection order due to domestic, sexual, dating violence, or stalking. If your employee chooses to share this information, your response and action are critical to enhancing your employee's safety and security:
- Express Concern
- Ask how you can help
- Discuss options that may assist the employee, such as time off or a reasonable accommodation in the workplace
- Respect your employee's personal choices
Do not penalize or judge a victim of domestic violence, dating violence, stalking or sexual assault. Your support can substantially impact your employee's life and work.
Every case is unique, and every employee will face different circumstances and needs. Remember to involve the victim/survivor in any decisions you make or actions you take on his or her behalf. Also, consider the following:
Talk with your employee and find out if the protection order terms and conditions affect his or her job duties in any way, or if the violence, stalking or sexual assault necessitates a temporary or permanent revision of job duties. For example if your place of employment is a public or retail establishment, and the employee is a greeter, receptionist, or someone who works on the floor of a retail establishment, consider a temporary reassignment of job duties to increase his or her safety. If the employee works at a desk, consider providing him or her with a new phone extension, or placing all calls into a voicemail system. Never give out an employee's home address, even to other colleagues.
Safety and security
Protect your employee's privacy. Keep your employee's information confidential, unless the employee knowingly permits disclosure. Your employee may need accommodations to enhance his or her safety while at work. For example, you might arrange for an escort to walk your employee to the parking garage at night, if he or she feels at risk. Other options to consider with the employee include:
- Changes to direct deposits
- Schedule changes, such as fluctuating work hours
With the input of the petitioner employee, you can assist in saving or archiving emails, voicemails, text messages, etc., that relate to contact by an alleged abuser. If a respondent violates a protection order on workplace property, you can help document the violation with the police or the courts. If you notice bruises or other forms of abuse, document them in a confidential manner and separate the information from the employee's employment file.
In New York state, Susan Still's employer dutifully jotted down on her calendar each indication of abuse she saw - bruises, calling in sick and showing up next with an injury, and harassing phone calls. That evidence helped convict Still's abuser and substantiated a 36-year sentence, the longest sentence ever given for a crime of domestic violence in New York.
Employers should encourage employees to speak with professionals who are trained in the dynamic process of safety planning. It is not expected that you as an employer can or should conduct safety planning; safety planning is an ongoing process, not a one-time event. The employee, in conjunction with an advocate or expert, should consider every aspect of his or her day to assess safety concerns. Through the safety planning process, an employee may identify ways that the employer can help to make the employee's life safer, such as changes to schedule or other accommodations.
Many companies have restrictions on computer use for personal matters, but it may be a safety risk for a victim of violence to use a personal computer at home to assist with safety planning. Abusers often download spyware without the victim's knowledge. Or, a victim of violence may not have the economic means to afford a computer. Consider permitting the victim to utilize company equipment, either during or off work time, to assist in safety planning.
Referral and Resources
Ensure that your human resources department, or the designated staff person identified in your Employer Policy on Domestic Violence, Sexual Violence, Dating Violence and Stalking, maintains a list of local and national resources to assist victims.
V. My employee has obtained a protection order against another employee. What can I do to help? What are my responsibilities?10
This is a complex issue and it is important that your Employer Policy on Domestic Violence, Sexual Violence, Dating Violence and Stalking include a provision on how to respond to perpetrators of violence in the workplace. Each situation will require an individualized response and you should consult with your attorney and consider:
- Is it feasible and safe to relocate the respondent to a new location that would not intersect with the victim?
- Is there information indicating that the respondent has used company time, materials or resources to abuse, harass, or stalk the petitioner?
- Has the respondent, through his or her use of violence, violated any other company policy, such as a company Sexual Harassment Policy?
- Is the respondent's work product suffering?
- How are the victim and other employees impacted by the respondent's presence in the workplace?
In 2012, the University of Vermont, the Vermont Council on Domestic Violence, and Spectrum Youth & Family Services examined men enrolled in batterer intervention programs in Vermont and found that 80% said their own job performance was negatively affected by their perpetration of domestic violence, while 19% caused or almost caused an accident at work.
One particularly difficult scenario arises if the respondent's work is stellar, and the petitioner's performance is suffering. In these circumstances, please consider:
- Economic abuse and employment sabotage are major forms of controlling behavior and tactics that abusers use.
- The victim may temporarily experience a range of post-trauma symptoms.
- Assisting the petitioner/employee to feel safe at work, through the measures suggested in this Guide, may improve the employee's performance.
- Consider the workplace culture you would like to create and sustain-one that is free of violence.
VI. My employee has had a protection order issued against him or her. What are my responsibilities?
As an employer, it's unlikely you will know that an employee has a protection order against him or her unless the petitioner on the order informs you directly. If the petitioner does contact you, it may mean that a violation took place using company property or materials and the petitioner wants you to be aware of it. If that is the case, investigate the claims as you would any other claim of employee misconduct, follow your policies and procedures, and review the information in Section V, above.
Information For Employees
If you have obtained a protection order or injunction against another person, or are experiencing violence in your life:
- Talk with a domestic or sexual violence advocate/counselor. An advocate can help you sort things out and take measures to plan for your immediate and ongoing safety. You can obtain a list of referrals by talking with _________ (designated employee in HR or otherwise).
- Inform our designated contact about the order or the violence. _____________ (designated staff person to serve as contact regarding violence). Otherwise, tell a trusted supervisor or colleague.
- Consider obtaining a protection order if you have not done so and if you believe that it will improve your safety. Discuss this with the Domestic or Sexual Violence Advocate.
- Provide a copy of the protection order to ________ (designated contact) or to your supervisor. Let them know what they can do to help you increase your safety at work.
- To the extent possible, we will keep all communications about the violence.
- Keep a copy of the protection order with you at all times. If you drive, keep a copy in your car as well.
- Discuss with us what changes to your schedule, work location, or other matters might help increase your safety.
- Ask us about leave and accommodations to address matters related to the violence.
- Save all voicemails, emails, texts, or other contacts from a respondent that might be relevant in obtaining or enforcing your protection order or in other legal proceedings.
- Evaluate your whole day for safety risks, starting with your commute to work and including your commute home.
- Continue to Safety plan and re-evaluate your safety and risks on a regular basis, in consultation with your professional domestic or sexual violence advocate. You may also wish to contact your state or tribal coalition against domestic violence by visiting http://www.ovw.usdoj.gov/statedomestic.htm and http://www.ovw.usdoj.gov/tribal_coalitions.htm
- Know your rights. A reference guide can be found at http://www.legalmomentum.org/assets/pdfs/referenceguide.pdf More specific information about what your rights are in your specific jurisdiction can be obtained by contacting your state/tribal coalition or a local domestic violence organization. Consult an attorney to determine all of your options.
- Court assistance with other matters. Through a protection order, a judge may be able to require your abuser to turn over documents you need as well as order economic support and custody.
- U.S. Dept. of Health and Human Services, National Center for Injury Prevention and Control. March, 2003. Costs of Intimate Partner Violence Against Women in the United States. Atlanta, GA: Centers for Disease Control and Prevention.
- Julia Lewis, "Estrange Couple Dead in Apparent Murder- Sucide on UNC Property," November 29, 2004. Available at www.wral.com/news/local/story/114166"Sexual Harassment in the Fortune 500", Working Woman (Dec. 19, 1988).
- See State Law Guide: Workplace Restraining Orders at www.legalmomentum.org
- Stark & Flitcraft (1988); Fox & Zawitz (1999); Statistics Canada (2001); Websdale (2003).
- Campbell, J. C., et al. Risk Factors for Femicide in Abusive Relationships: Results from a Multi-site Case Control Study, American Journal of Public Health, 93, 1089-1097.
- TK Logan, Ph.D., et al. The Kentucky Civil Protective Order Study: A Rural and Urban Multiple Perspective Study of Protective Order Violation Consequences, Responses, & Cost. National Institute of Justice (September 2009).
- If the employees are members of a union, the employer's options may be impacted, for example, if the respondent/member has seniority. See "Union Responses: Making a Difference for Members" for additional information. For more on the effect of perpetrators in the workplace, see Schmidt, M.C. & Barnett, A. Effects of Domestic Violence on the Workplace: A Vermont survey of male offenders enrolled in batterer intervention programs (January 2012).