Preventing Violence In The Workplace: Few Evidentiary Hurdles

On December 5, 2011, in Kaiser Foundation Hospitals v. Wilson, the California Court of Appeal upheld a trial court's decision to grant a permanent injunction pursuant to Code of Civil Procedure section 527.8––the provision governing injunctions designed to prevent workplace violence against employees. In affirming the trial court's ruling, the Court of Appeal held that the trial court properly considered hearsay evidence when determining that credible threats of violence supported the injunction.

Background

Defendant Jeff Wilson is the spouse of former Kaiser employee Diane Younge-Barnes. In April 2010, Younge-Barnes's employment with Kaiser was terminated. In May 2010, Wilson and Younge-Barnes were at a Kaiser facility for the birth of their granddaughter. When told that Younge-Barnes could not be in the nurses' area, Wilson threatened two Kaiser employees.

Specifically, the two Kaiser employees signed declarations testifying that Wilson said he was going to put [them] down." Three days later, Wilson and Younge-Barnes again returned to the Kaiser facility. This time, when Younge-Barnes was told to leave the nurses' area, Wilson, according to the employees' declarations, stated he was "going to flip his lid" and "do something that he would regret."

The two Kaiser employees further stated in their declarations that Wilson was detained by police after making threats that he was going to "kill someone." And, a day later, according to the two employees, Younge-Barnes told a therapist that Wilson threatened to shoot a Kaiser employee.

On July 2, 2010, Kaiser filed petitions seeking injunctions prohibiting Wilson from committing acts of violence or threatening violence against the two Kaiser employees pursuant to section 527.8 of the Code of Civil Procedure.
At the hearing for the permanent injunction before the trial court, the Kaiser employees testified they did not actually witness what was described in their declarations, and significant amounts of the information on the record was actually heard secondhand from other sources. Despite the fact that the evidence presented by the employees clearly was hearsay, the trial court granted Kaiser's petitions and ordered Wilson to stay away from and have no contact with Kaiser for three years.

The Appeal

Wilson appealed the ruling, arguing that the employee declarations should not have been considered because they were not admissible. Wilson argued that all of the usual rules of evidence applied at a hearing, including Evidence Code section 1200, which made the declarants' testimony inadmissible hearsay.

Code of Civil Procedure 527.8(e) governs the procedure whereby an employer may seek and obtain a restraining order or injunction against violence. Under section 527.8(e), an employer must file "an affidavit that, to the satisfaction of the court, shows reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by defendant, and that great or irreparable harm would result to an employee." Within 15 days of the filing of a petition, a hearing is held to determine whether an injunction should issue. During the hearing, the judge "shall receive any testimony that is relevant" and is free to make an independent inquiry if he or she sees fit. The judge must find by "clear and convincing" evidence that the defendant engaged in unlawful violence or made a credible threat of violence for the injunction to issue.

The Court of Appeal first acknowledged that there was no relevant legal authority governing the extent to which the rules of evidence apply to hearings held pursuant to section 527.8(f). A plain reading of 527.8––which clearly states that the trial court "shall receive any testimony that is relevant"––suggested, however, that the Legislature intended the trial court to consider all evidence, including hearsay evidence. Moreover, after considering the language in Evidence Code section 1200, which provides that hearsay generally is inadmissible "[e]xcept as provided by law," the court concluded that the evidence admitted at the hearing need only be relevant to be considered.

Moreover, the court analogized the unique context of a hearing on a petition to obtain a workplace violence injunction to the civil harassment procedures delineated in Code of Civil Procedure section 527.6. There, the applicable legal authority supported allowing all relevant evidence, particularly affidavits or declarations, which necessarily contain a form of hearsay evidence. Finally, the court reasoned that because the hearing was before a judge, and not a jury, the judge, well aware of the unreliability of hearsay evidence, could assign such testimony the appropriate weight. Accordingly, the court found that the trial court did not err in considering hearsay evidence.

What Kaiser v. Wilson Means for Employers

Code of Civil Procedure section 527.8 is a useful mechanism for employers, particularly in light of an employers' duty to maintain a safe work environment and the potential liability stemming from a failure to do so. Whether an employer moves for a restraining order against a disruptive or violent customer, a disgruntled former employee, or a spouse of an employee, it frequently must act quickly to ensure the safety of employees, often filing a petition immediately after the threatening behavior takes place. With this ruling, the Court of Appeal confirmed that although the evidence presented must meet the "clear and convincing" threshold, such evidence need not contain first-hand accounts of violent or threatening behavior. This ruling will help to ensure employee safety by allowing employers to obtain declarations from managers or supervisory personnel who were told about threats but did not witness them firsthand, which may be particularly important where the threatened employee is unwilling or reluctant to come forward.

By: Fred Sanderson and Anthony Musante

Fred Sanderson is a partner in the firm's Sacramento office and Anthony Musante is an associate in the firm's Sacramento office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Fred Sanderson at asanderson@seyfarth.com or Anthony Musante at amusante@seyfarth.com.