HOUSE OF REPRESENTATIVES	H.B. NO.	2200
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to public safety.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The purpose of this Act is to allow employers to obtain temporary restraining orders and injunctions to protect against harassment of employees or invitees at the employer's premises and worksites.

     SECTION 2.  Section 604-10.5, Hawaii Revised Statutes, is amended to read as follows:

     "§604-10.5  Power to enjoin and temporarily restrain harassment.  (a)  For the purposes of this section:

     "Course of conduct" means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose.

     "Employee" means an individual who is required or directed to perform labor or other services or to go to work or be at any place of employment at any time for compensation or any volunteer, other noncompensated person, or independent contractor who performs services for an employer at the employer's premises or worksite.

     "Employer" means a sole proprietor or any type of business organization; agency or instrumentality of the United States, the State, or any of its political subdivisions; trust or estate whether domestic or foreign, for-profit or not-for-profit; debtor in possession or receiver or trustee in bankruptcy; or the legal representative of any person, for whom labor or services are performed regularly by one or more employees.

     "Harassment" means:

     (1)  Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or

     (2)  An intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual and serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.

     "Invitee" means an individual who enters an employer's premises or worksite as a result of an express or implied invitation of the employer for their mutual gain or benefit.

     (b)  The district courts shall have the power to enjoin, prohibit, or temporarily restrain harassment.

     (c)  Any person who has been subjected to harassment may petition the district court of the district in which the petitioner resides for a temporary restraining order and an injunction from further harassment.

     (d)  Any employer whose employee or invitee has been subjected to harassment at the employer's premises or worksite, or harassment that can reasonably be foreseen to recur at a premises or worksite, may petition the district court of the district in which the premises or worksite is situated for a temporary restraining order and an injunction from further harassment at the premises or worksite; provided that no injunction shall be issued in derogation of chapter 380.

     To the extent feasible, the employer shall consult the employee or invitee who was subject to the harassment prior to petitioning for a temporary restraining order and an injunction from further harassment; provided that an employee who is a subject of harassment and who is unwilling to participate in this process shall not face disciplinary action from the employer based on the employee's level of participation or cooperation with the process; provided further that an employee organization that represents employees of the employer shall be allowed to intervene in a proceeding under this section.

     [(d)] (e)  A petition for relief from harassment shall be in writing and shall allege that a past act or acts of harassment may have occurred or that [threats of harassment make it probable that] an act or acts of harassment may be imminent[;], and shall be accompanied by an affidavit made under oath or statement made under penalty of perjury stating the specific facts and circumstances for which relief is sought.

     (f)  A petition by an employer shall specify that acts or threats of harassment, or both, were or are likely to be carried out at the employer's premises or worksite.

     [(e)] (g)  Upon petition to a district court under this section, the court may allow a petition, complaint, motion, or other document to be filed identifying the petitioner as "jane doe" or "john doe"; provided that the court finds that the "jane doe" or "john doe" filing is reasonably necessary to protect the privacy of the petitioner and will not unduly prejudice the prosecution or the defense of the action.

     In considering a petition requesting a "jane doe" or "john doe" filing, the court shall weigh the petitioner's interest in privacy against the public interest in disclosure.

     The court, only after finding clear and convincing evidence that would make public inspection inconsistent with the purpose of this section, may seal from the public all documents or portions of documents, including all subsequently filed documents, that would identify the petitioner or contain sufficient information from which the petitioner's identity could be discerned or inferred.  Access to identifying information may be permitted to law enforcement or other authorized authority, in the course of conducting official business, to effectuate service, enforcement, or prosecution, or as ordered by the courts.

     [(f)] (h)  Upon petition to a district court under this section, the court may temporarily restrain the person or persons named in the petition from harassing the petitioner or the person who is the subject of threats or harassment upon a determination that there is probable cause to believe that a past act or acts of harassment have occurred or that [a threat or threats] an act or acts of harassment may be imminent.  The court may issue an ex parte temporary restraining order either in writing or orally; provided that oral orders shall be reduced to writing by the close of the next court day following oral issuance.

     [(g)] (i)  A temporary restraining order that is granted under this section shall remain in effect at the discretion of the court for a period not to exceed ninety days from the date the order is granted.  A hearing on the petition to enjoin harassment shall be held within fifteen days after the temporary restraining order is granted.  If service of the temporary restraining order has not been effected before the date of the hearing on the petition to enjoin, the court may set a new date for the hearing; provided that the new date shall not exceed ninety days from the date the temporary restraining order was granted.

     The parties named in the petition may file or give oral responses explaining, excusing, justifying, or denying the alleged act or acts of harassment.  The court shall receive all evidence that is relevant at the hearing and may make independent inquiry.  If the respondent is a current employee of the petitioner, the court shall receive evidence concerning the employer's decision to retain, terminate, or otherwise discipline the respondent.

     If the court finds by clear and convincing evidence that [harassment]:

     (1)  Harassment as defined in paragraph (1) of that definition exists, it may enjoin for no more than three years further harassment of the petitioner[,] or [that harassment] the person who is the subject of threats or harassment; or

     (2)  Harassment as defined in paragraph (2) of that definition exists, it shall enjoin for no more than three years further harassment of the petitioner[;] or the person who is the subject of threats or harassment; provided that this paragraph shall not prohibit the court from issuing other injunctions against the named parties even if the time to which the injunction applies exceeds a total of three years.

     Any order issued under this section shall be served upon the respondent.  For the purposes of this section, "served" [shall mean] means actual personal service, service by certified mail, or proof that the respondent was present at the hearing at which the court orally issued the injunction.

     Where service of a restraining order or injunction has been made or where the respondent is deemed to have received notice of a restraining order or injunction [order], any knowing or intentional violation of the restraining order or injunction [order] shall subject the respondent to the provisions in subsection [(i).] (k).

     Any order issued shall be transmitted to the chief of police of the county in which the order is issued by way of regular mail, facsimile transmission, or other similar means of transmission.

     [(h)] (j)  The court may grant the prevailing party in an action brought under this section costs and fees, including reasonable attorney's fees.

     [(i)] (k)  A knowing or intentional violation of a restraining order or injunction issued pursuant to this section is a misdemeanor.  The court shall sentence a violator to appropriate counseling and shall sentence a person convicted under this section as follows:

     (1)  For a violation of an injunction or restraining order that occurs after a conviction for a violation of the same injunction or restraining order, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours; and

     (2)  For any subsequent violation that occurs after a second conviction for violation of the same injunction or restraining order, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days.

     The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1) and (2), upon appropriate conditions, such as that the defendant remain alcohol- and drug-free, conviction-free, or complete court-ordered assessments or counseling.  The court may suspend the mandatory sentences under paragraphs (1) and (2) where the violation of the injunction or restraining order does not involve violence or the threat of violence.  Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor offense.

     [(j)] (l)  Nothing in this section shall be construed to prohibit constitutionally protected activity.

     (m)  Nothing in this section shall be construed as:

     (1)  Creating, expanding, diminishing, altering, or modifying the duty, if any, of an employer to provide a safe workplace for employees;

     (2)  Limiting any other rights or remedies available to an employer or employee under existing law, including but not limited to the seeking of injunctive relief through methods other than the procedures set forth in this section;

     (3)  Affecting or in any way limiting the exclusivity provision in chapter 386; or

     (4)  Limiting the rights of employees to organize pursuant to article XIII, sections 1 and 2, of the state constitution or sections 377-4 and 380-2.

     (n)  No civil liability shall attach or be imposed upon any employer for:

     (1)  Initiating a proceeding under this section; or

     (2)  Conducting an investigation of any alleged act or threat of violence or harassment in the workplace for purposes of determining the feasibility of or initiating a proceeding under this section.

     (o)  An employer or an employer's agent who acts in accordance with this section shall be presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, shall be immune from civil liability for actions taken under this chapter.  No employer or agent of an employer who fails to use the procedures authorized by this section shall be liable for negligence nor shall evidence of a failure to use those procedures be admissible as evidence of negligence.

     (p)  No civil liability shall attach or be imposed upon any employee or witness for:

     (1)  Participating in an employer's investigation for purposes of initiating a proceeding under this section; provided that this immunity shall not apply to an action taken with malicious intent or any statement made with knowledge of its falsity; or

     (2)  Presenting statements or evidence in a judicial proceeding under this section."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect on July 1, 2018.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Public Safety; Workplace Violence; Restraining Orders

 

Description:

Allows an employer to seek a temporary restraining order and injunction against further harassment of an employee or invitee who may be harassed at the employer's premises or worksite.

 

 

 

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