Legal Measures for Protecting Employees from Workplace Violence

April 24, 2018 - Denny P. Major

Workplace violence is high on every HR professional’s list of worst nightmares regardless of the source – an employee, former employee, angry customer, or random third party. 

Of course, there are a host of security measures employers can undertake in an effort to prevent or mitigate violent incidents on their premises. While there is no substitute for good security measures, we are occasionally asked about what legal steps an employer can take where it is concerned that a particular person may engage in violence or inappropriate behavior on the premises – for example, a disgruntled former employee, a customer who is obsessed with an employee, or an angry ex-spouse of an employee. Unlike some jurisdictions, South Carolina does not have workplace violence restraining orders that allow an employer to obtain a restraining order on behalf of an employee that needs protection. However, depending on the circumstances, there are some legal options an employer can take to help protect its employees.

One measure is to put the person on trespass notice. This could be enough to deter a person from your premises. While this measure is easy and cost effective, one significant limitation is that the person could go near the property without violating the trespass notice. What if the person the employer is concerned about is driving by the employer’s premises several times a day or parking his car just on the other side of the property line and the employer is concerned he may use a gun when an employee walks out to their car?

A restraining order, on the other hand, can potentially prohibit a person from going within a specified distance from the employer’s premises. In South Carolina, a restraining order can be issued against a person who is engaged in “harassment” or “stalking” or a permanent restraining order can be issued against a person convicted of a crime. However, because these are crimes against the person, the restraining order must be sought by the victim of the harassment or stalking.

While an employer lacks standing to pursue these restraining orders, employers can offer assistance to employees in pursuing a restraining order by, for example, working with them to hire effective legal counsel. A major deterrent for employees is paying for effective legal counsel to assist them in obtaining an effective restraining order that adequately protects their interests. Where there has not been a criminal conviction, a restraining order for stalking or harassing is the only option, which requires a proper showing of “stalking” and “harassment” as those terms are defined in the statute. Initially, an emergency restraining order can be obtained without notice to the stalker/harasser, but a hearing with notice to the alleged stalker/harasser must be held within 15 days. A restraining order issued after that hearing cannot be for more than one year, although it can be extended for good cause shown. Effective legal counsel can make a big difference in navigating the procedural hurdles of obtaining a restraining order, ensuring that the proper showing is made, and ensuring that the scope of the restraining order protects the employee’s interests. The employee’s interest includes preventing the stalker, harasser, or criminal from coming to or near the place where the employee works. Such a prohibition, of course, is also in the best interest of other employees as well as the employer.

At the end of the day, a restraining order is still only a piece of paper and doesn’t always prevent an incident from occurring, but it can make a difference. Acting quickly to obtain a restraining order where the facts warrant it gives the police the option of arresting someone who is lurking around the premises. Moreover, even where it doesn’t make a difference, assisting an employee with obtaining a restraining order has the collateral benefit of showing all employees that the employer has their back and cares about their safety.

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Boyd B. Nicholson, Jr., Managing Director, Haynsworth Sinkler Boyd, P.A., ONE North Main, 2nd Floor, Greenville, SC 29601