Restraining Orders: Tools to Protect Your Employees

By: Andrew M. HicksWarrick & Boyn, LLP121 W. Franklin St, Ste 400Elkhart, IN 46516T: (574) 294-7491E: ahicks@warrickandboyn.com

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 . . .

What is a protective order?

What are the benefits?

“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)

Domestic Protective Orders

Workplace Violence Restraining Orders

No Trespass Orders

(Also potentially relevant is injunctive relief in a labor dispute)

"Other"

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) person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the petitioner.

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

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.

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.

Not “Proactive” Limited in Applicability to Non-Family

Members

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

“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.

“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.

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

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

Documentation and Building your case:-Witness statements-Affidavits-Subpoenas-Records-Security Footage-Recording

Work with your counsel. Hearing Procedure Considerations for the employee/victim

Violating a protective order is, at a minimum, a Class A Misdemeanor.

What is Trespass?

Local Police Department Form

Questions?

Andrew M. Hicks, Warrick & Boyn, LLP ahicks@warrickandboyn.com 574-294-7491 http://www.linkedin.com/pub/andrew-hicks/

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