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Labor and Employment LawThe newsletter of the ISBA’s Section on Labor & Employment Law

January 2014, vol. 51, no. 6

Workplace Violence Protection Act in context

Illinois Public Act 098-0430 creates the Workplace Violence Prevention Act which became effective January 1, 2014. In short, this Act extends to employers the right to petition the court for an order of protection similar in most ways to the order of protection provided in Article 3 of the Illinois Domestic Violence Act of 1986. The Act explains in simple terms when an employer may attain such an order of protection and how law enforcement is required to respond.

The Workplace Violence Prevent Act (WVPA) is in some ways an extension of legislation which has been in effect in Illinois and under federal law for a number of years. The Illinois Workers’ Compensation Act, of course, addresses recovery for victims of workplace violence, including medical expenses, lost income and permanent loss. While this might place a financial burden upon the employer, either directly or indirectly, the system doesn’t directly address the prevention of workplace violence.

In 1970, the federal government passed the Occupational Safety and Health Act (OSHA). That Act included the provision that each employer shall furnish to each of his employees employment at a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees. 29 U.S.C.A. §654. In September of 2011, OSHA issued a directive on enforcement procedures for investigating or inspecting incidents of workplace violence. The directive established uniform procedures for field staff responding to incidents and complaints of workplace violence, including conducting inspections in industries considered vulnerable to workplace violence, such as healthcare and social service settings, and late night retail establishments. The directive stated that OSHA recognized workplace violence as a serious occupational hazard, ranking among the top four causes of death in workplaces during the preceding 15 years. Again, the OSHA approach is reactive, providing fines and other penalties for employers who violate the provisions of the Act.

In 2005, the Illinois State Legislature passed the Health Care Workplace Violence Prevention Act. This Act was designed to force employers to proactively address the potential for violence in their workplaces. A pilot project was set up whereby certain employers would initiate workplace violence plans beginning in July 2007. These plans would include violence prevention training, as well as an effort to record the types of workplace violence occurring in health care facilities.

By July 1, 2008, every health care workplace was required to adopt and implement a plan to reasonably prevent employees from violence. The Act included specific instructions to employers regarding the contents of this workplace violence plan. The Illinois Departments of Labor, Human Services and Public Health were charged with assisting employers in developing and implementing these plans.

The WVPA is a radical departure from the past efforts of both the state and federal government. This Act effectively broadens the scope of the Illinois Domestic Violence Act of 1986 and was adopted to remedy society’s failure to protect battered women. The express purpose of the Domestic Violence Act was stated in the Act itself (750 ILCS 60/102). To begin with, the legislature acknowledged a historical “widespread failure to appropriately protect and assist victims and condemned the legal system that had ineffectively dealt with family violence in the past.

The enforcement system under the Domestic Violence Act established that petitions for orders of protection must be treated as an expedited proceeding before the court. The Act expressly directed courts to err on the side of victim protection and admonished law enforcement officers to provide immediate, effective assistance, protect victims and use all reasonable means to prevent further abuse.

The Domestic Violence Act provided a limited scope regarding the relationship between the victim and the abuser which would allow the victim to petition for an order of protection. The petition may be filed only by a person who has been abused by a family or household member or any person on behalf of a minor child or an adult who has been abused by a family or household member and who because of age, health, disability, or inaccessibility, cannot file the petition or by any person on behalf of a high-risk adult with disabilities who has been abused. 750 ILCS 60/201(a). “Abuse” is defined as physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. 750 ILCS 60/103(1). Persons protected by the Act are only: Any person abused by a family or household member; any high-risk adult with disabilities who is abused; or any minor child or dependent adult in the care of such person; and any person residing or employed at a private home or public shelter housing an abused family or household member.

The Workplace Violence Prevention Act expands the circle of potential protection under orders of protection to almost any employed person in society. Under Section 15 of the Act, the employer may seek an order of protection to prohibit further violence or threats of violence by a person if the employee has suffered unlawful violence or a credible threat of violence from the person and the unlawful violence has been carried out at the employee’s place of work or the credible threat of violence can reasonably be constructed to be carried out at the employee’s place of work by the person.

If the court grants the order of protection filed by the employer, the police are subject to a heightened duty of response. Law enforcement officers and their employers can be liable for a willful and wanton failure to abide by the heightened requirements contained in the Illinois Domestic Violence Act. See Moore v. Green, 219 Ill. 2d 470 (2006). The facts in Moore v. Green reveal a blatant disregard for the order of protection by the police. The point here is that there can be only so many “first priority” duties for a police officer or police department to address at a time. It would seem that the Workplace Violence Prevention Act has a potential for diluting the effectiveness of the Illinois Domestic Violence Act.

The employer can be anticipated to be at least somewhat removed from the potential for violence in the life of any of its employees. So by the employer preparing and filing the petition, much if not all of the information provided in the petition to support the granting of an order of protection will be at least secondhand on the part of the employer. (The Act only applies to employers having at least five employees during any work week.)

There are no reported cases in Illinois where an individual has been sanctioned for petitioning the court for an order of protection without adequate basis or in bad faith. Nevertheless, employers are required to file sworn statements regarding “reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence.” It is worthy of noting that Section 25 of the WVPA states, “Nothing in this Act, however, waives, reduces, or diminishes any other remedy available to an employer under any other mechanism.” This section seems to instruct employers that if the abuser is a fellow employee, perhaps discipline or termination would be appropriate. If the abuser is not a co-employee, providing a no trespass warning to the abuser would be a viable option. ■


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