Restraining Orders: Tools to Protect Your Employees

1. Restraining Orders:Tools to Protect Your Employees By: Andrew M. Hicks Warrick & Boyn, LLP 121 W. Franklin St, Ste 400 Elkhart, IN 46516 T: (574) 294-7491 E: ahicks@warrickandboyn.com

2. Disclaimer • Alternate Titles/Flashiness • Names Changed to Protect the Innocent • No Specific Legal Advice (Protective Orders are highly fact sensitive) • What my portion of the seminar is not about . . .

3. Protective Orders • What is a protective order? • What are the benefits?

4. “In our view, the purpose of the WVRA, CPOA, and the relevant criminal laws, is to prohibit actions and behavior that cross the lines of civility and safety in the workplace, at home, and in the community.” Torres v. Indiana Family and Social Services Administration, 905 N.E.2d 24, 30 (Ind. Ct. App. 2009)

5. Protective Orders • Domestic Protective Orders • Workplace Violence Restraining Orders • No Trespass Orders • (Also potentially relevant is injunctive relief in a labor dispute) • "Other"

6. Domestic Protective Orders A person [or parent or guardian on behalf of a child] who is or has been a victim of domestic or family violence may file a petition for an order for protection against a: (1) family or household member who commits an act of domestic or family violence; or (2) personwho has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the petitioner.

7. Domestic Protective Orders • Who may file: • A person or a person with legal responsibility for a child on behalf of the child • who is or has been a victim of domestic or family violence

8. Domestic Protective Orders • Who against: • A family or household member who commits an act of domestic or family violence; or • Any person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4.

9. Domestic Protective Orders • What is stalking? • Ind. Code 35-45-10-5(a): A person who stalks another person commits stalking, a Class D felony. • Also . . . “Stalking” is defined in relevant part as “a knowing or intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.” Ind. Code 35–45–10–1.

10. Domestic Protective Orders • Not “Proactive” • Limited in Applicability to Non-Family Members

11. Workplace Violence Restraining Orders An employer may seek a temporary restraining order or injunction on behalf of an employee to prohibit further violence or threats of violence by a person if: (1) the employee has suffered unlawful violence or a 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 construed to be carried out at the employee's place of work by the person. Ind. Code 34-26-6-6

12. Workplace Violence Restraining Orders • “Unlawful Violence” means battery (knowingly or intentionally touching another person in a rude, insolent, or angry manner) or stalking. • “Credible Threat of Violence” means a knowing and willful statement or course of conduct 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.

13. Workplace Violence Restraining Orders “Course of Conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, indicating a continuity of purpose, that includes the following: (1) Following or stalking an employee to or from the employee's place of work. (2) Entering the employee's place of work. (3) Following an employee during the employee's hours of employment. (4) Making telephone calls to an employee during the employee's hours of employment. (5) Sending correspondence to an employee by means such as public or private mail, interoffice mail, fax, or electronic mail.

14. Workplace Violence Restraining Orders • No Filing Fee • A TRO requires proof of “great or irreparable harm” has been or will be suffered by the employee. • Requires a hearing in 15 days. • Standard of proof is “clear and convincing evidence” • Effective for three years

15. Protective Orders • Must use State Forms: http://www.in.gov/judiciary/center/2645.htm • Especially: http://www.in.gov/judiciary/center/files/center-bb-po-form-po-0104.pdf

16. Protective Orders Documentation and Building your case: • Witness statements • Affidavits • Subpoenas • Records • Security Footage • Recording

17. Protective Order Hearings • Work with your counsel. • Hearing Procedure • Considerations for the employee/victim • Violating a protective order is, at a minimum, a Class A Misdemeanor.

18. No Trespass Orders • What is Trespass? • Local Police Department Form

19. Other Types of Relief

20. THE END • Questions? • Andrew M. Hicks, Warrick & Boyn, LLP • ahicks@warrickandboyn.com • 574-294-7491 • http://www.linkedin.com/pub/andrew-hicks/50/3b7/932