The Employer's TRO: An Investigator's Viewpoint
June 22, 2007
By Kent Perkins
As an employer, one of your most important missions is to ensure the safest possible work place.
Almost all employers are at some time faced with decisions regarding how to handle potentially violent employees, or those who may threaten an employee (such as a disgruntled ex-boyfriend or spouse.) The subject is large in scope, and there are countless possible scenarios and just as many options, ranging from doing nothing (usually the worst choice) to dialing “9-1-1” and calling in the gendarmes in full force.
Psychologists may sometimes advise against seeking a Temporary Restraining Order (“TRO”) on the basis that it could enrage the recipient, and make matters worse. In some cases, that may be correct. However, in all cases, the way a TRO is presented to the respondent makes a big difference in the way it’s perceived…but more on that in just a minute.
After several decades of handling exigent and potentially dangerous situations for clients across America, I’ve found it’s practical and important to consider your geographical circumstances. In some areas, law enforcement handles situations much differently than in others, so “calling the cops” may mean very different things in various areas.
Take Los Angeles, for instance:
If you dial “9-1-1” in Los Angeles, you may wait two or three minutes to speak with a live operator, while an outgoing recording explains that all the 9-1-1 operators are “currently busy with other callers.” The message repeats in Spanish, Japanese, and maybe a few other languages. Then a live operator says, “What’s your emergency?” You’d better be ready to make it sound like a life threatening disaster if you want a patrol car to respond. But you decide to just tell the facts, like this: “Well, we have an employee who’s been talking a lot today about ‘getting even with his boss,’ and he’s not acting quite right today, and we know he likes guns because he talks about going to the firing range and practicing, and, well, a few people are telling us they are beginning to be afraid to work with him.” You’ll probably get a response like this: “If he hurts someone, call us back.” (Then you’ll hear ‘click,’ pause, and another recording… “If you’d like to make a call, please hang up and dial again. If you need help, please call your operator.”) That can be very frustrating.
Many metropolitan regions are similar to Los Angeles; the police generally don’t want to be bothered by your concerns and suspicions regardingpotential violence. All they want to know is whether any laws have been violated, and whether the perpetrator is still there. Believe it or not, they may even literally instruct you to wait until someone gets hurt.
In areas such as these, a TRO generally makes much more sense. With a TRO in hand, signed by a Judge, served and enforceable, you will have the full protection of the police with a great deal of assurance that an appropriate police response will take place if a violation of your court order occurs. In other words, a TRO gives the police something important to which they will respond. It’s a felony to violate a judge’s order in such cases. The police will rapidly respond and affect an arrest if the subject of a TRO fails to heed the court’s demands.
Contrarily, in areas where the police are very proactive and will help you before a crime occurs, the need for a TRO may be greatly reduced.
There are some key factors in handling potentially violent people; keep in mind that potentially violent people are usually responding to their environment in a way they feel is absolutely justified by the circumstances. Whether the people’s thoughts leading to those conclusions are based upon fact or are purely delusional is almost immaterial; they feel trapped, violated, oppressed, cheated, insulted, disrespected, belittled, mistreated or abused in some way. To help diffuse potentially violent people, it’s important to let them express these thoughts to someone who will carefully listen. It’s also important to try to impress upon them that the company takes their feelings seriously, that their well being is important to the company, and that the company’s duty to provide a safe workplace sometimes means taking action in court for the safety and security of everyone.
All TRO respondents need to know that TRO’s are never considered part of anyone’s “criminal record,” and that if they disagree with the terms and conditions of the orders, they have the option to go to court and to perhaps convince the judge there’s no need to make the TRO’s permanent injunctions.
One must fully explain to the recipients that, if they wish to obey the orders and if they understand why we (the outside security consultants) felt a TRO was necessary, they have no obligation to go into court. In such cases, the recipient may simply not appear at the hearing.
Recipients of TROs need to know that if they choose to not go to the hearings, the police will not come after them for failure to appear, and that the orders will probably become permanent injunctions in their absence, valid for a three year period during which they must obey the order.
An important factor in diffusing these situations is conveying to the potentially violent person that an outside security consulting firm has been employed to assess the matter. It is this outside agency, not the company or any one individual, which recommended that the TRO was appropriate. I often tell such recipients that we are obligated to “err on the side of safety” and that, while we really don’t think the person intends to harm anyone, it could have been considered professionally negligent for us to have recommended otherwise. This can go a long way in making the process more palatable and will aid in keeping the respondent from getting angrier.
None of the above is adequately explained to the recipient in the paperwork from the court, so simply having anyone travel to a respondent’s house, knock on the door, and hand out the paperwork is an inadequate and possibly even dangerous way of handling the TRO service. Bearing this in mind, it’s important to choose the right person to serve your TRO; choose someone not only capable of handing out paperwork, but someone who will actively take important measures to psychologically diffuse the situation.
When an employee has been sent home for making potentially violent comments, or threatening someone at work, you must decide whether extra protection for your staff is necessary. There are too many potential scenarios to analyze here in this newsletter article, but there are a few generalities we feel are important enough to mention:
- Get legal advice. Your labor and employment attorney probably has the ability to advise you on these matters better than anyone else, and will keep in mind your employees’ safety as well as all your potential liabilities and vulnerabilities. Many such lawyers have been to court on violence matters numerous times. They know how to obtain your TRO; in many cases, the same day it’s needed. Most importantly, all your discussions about handling the matter will be held under the Attorney Client Privilege to be possibly protected from future “third party” discovery, in the unlikely event of litigation arising from your actions or omissions.
- Even if the antagonist in your potentially violent situation engaged in inappropriate and unwarranted behavior, do everything you can to respect the potentially violent person’s feelings, and carefully listen to his or her side of the issues. People who have committed violent atrocities at work have later told psychiatric and law enforcement professionals that they thought nobody at work cared about them or offered to listen to their complaints. Often the potential for violence was seething and growing more and more out of control over a long period of time. Therefore, the safest work place is one in which all employees have access to a compassionate ear in management who will objectively listen to and discuss concerns of any kind, with any employee, at any time.
- If the situation requires extra security, you should usually choose plain clothed rather than uniformed guards (more appropriately referred to as executive protection professionals), in an effort to keep the situation “low key.” It’s easy for perpetrators to side step uniformed guards, who provide truly disturbed individuals not only targets but almost invitations to respond. Unarmed, uniformed guards provide only the appearance of extra protection. On the other hand, plain clothed, armed private security personnel provide real layers of protection without escalating the workplace into a mini-paramilitary battle zone.
- When having someone served with a TRO, use a professional who’ll not only hand the respondent the court’s paperwork, but who’ll take the time to be proactive in listening, assessing, and diffusing the potentially violent situation.
It is our sincere desire that you never have to make critical decisions about potentially dangerous people threatening your work place; but if you do, we hope this article will help you respond in the safest possible manner.
About the Author:
Kent Perkins is managing partner and senior executive investigator with the corporate investigation firm Diversified Risk Management, Inc. He is on the advisory board of California State University, and teaches one class per semester on the subject of Investigations for Corporate Human Resources Professionals and has over 30 years of experience in conducting corporate investigations.
Diversified Risk Management, Inc. provides a broad range of specialized risk management and investigation services which control losses and minimize exposure of litigation and liability to employers. The nationwide firm assists corporations, non-profit organizations and law firms in recognizing and responding to risks through a comprehensive and integrated suite of professional services. You can learn more about the firm by visiting www.DRMInc.us, calling 800.810.9508, or by email.