HB2028.DOC

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

Hawaii workplace violence prevention act

§ -1 Short title. This chapter shall be known as the Hawaii Workplace Violence Prevention Act.

§ -2 Findings and Purpose. The legislature finds that workplace violence is a problem growing at an alarming rate throughout the State of Hawaii and the United States. Workplace violence results in over five hundred deaths each year in the United States, making it the second leading cause of occupational fatalities in the country. Meanwhile, it is the leading cause of occupational fatalities for women.

Events experienced in our community have graphically and tragically demonstrated that the State of Hawaii is not immune to the problem of workplace violence. Accordingly, the legislature finds that new laws are necessary to protect the people of the State of Hawaii in the workforce who are vulnerable to such violence and their spouses, children, parents, family, friends, and co-workers who are equally impacted when workplace violence results in tragedy. The legislature finds that employers who are committed to maintaining safe working environments currently lack efficient and effective tools to obtain judicial relief for the prevention of workplace violence.

Accordingly, the purpose of this Act is to provide a simple and efficient mechanism for employers and employees to obtain judicial relief for the prevention and control of workplace violence.

§ -3 Definitions. As used in this chapter:

"Course of conduct" is an intentional or knowing pattern of conduct composed of a series of two or more acts over a period of time, regardless of how long or short, evidencing a continuity of purpose, or a general propensity for violence; following or stalking an employee; entering an employee’s workplace; entering an employer’s place of business; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee or employer by any means, including the use of telephonic communication devices, the public or private mails, interoffice mail, intra-office mail, fax, computer e‑mail, or telephonic text.

"Employee" means any person working for an employer, including any volunteer or independent contractor who performs services for an employer. The term “employee” shall include the immediate family and household members of the employee.

"Employer" means any person or entity, including the State or any of its political subdivisions, and any agent of such person or entity, having one or more employees. The term "employer" shall include any employment agency. The term "employer" shall also include the officers, directors, trustees, agents and legal counsel of any such person or entity.

"Employment" means any service performed by an individual for another person or entity under any work or service relationship, contract of hire, or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into.

"Employment agency" means any person or entity engaged in the business of providing employment information, procuring employment for applicants, or providing employees for placement with employers upon request.

"Household member" means any person residing with an employee.

"Immediate family" means a spouse, domestic partner, person joined in civil union, child, parent, sibling, grandchild, grandparent, or reciprocal beneficiary with or of an employee.

"Petitioner" means any employer or employee who seeks relief pursuant to this chapter.

"Property damage" means the intentional or knowing damage of the property of another that is made without the express consent of the property owner.

"Psychological abuse" means conduct directed at an employee that alarms, disturbs, or bothers the employee.

"Respondent" means any individual against whom relief is sought pursuant to this chapter.

"Threat of violence" is any verbal or written statement or course of conduct that would cause a reasonable person to fear for that person's safety or the safety of another, or the safety and integrity of that person's property or the property of another.

"Violence" means any physical harm, bodily injury, assault, battery, psychological abuse, or property damage, or the verbal or written threat of physical harm, bodily injury, assault, battery or property damage.

"Workplace" means any site, premises, location, or place where an employer conducts business operations or activities, regardless of the employer’s ownership or tenancy status, and regardless of the employer’s right to exclusive use or non-exclusive use, operation or control of the site, premises, location or place.

§ -4 Power to enjoin or temporarily restrain workplace violence. (a) The circuit courts shall have the power to enjoin, prohibit, or temporarily restrain workplace violence or the threat of workplace violence by special proceeding, initiated without the filing of a complaint, or as a regular proceeding initiated by the filing of a complaint.

(b) Any employer, whose employee has been subjected to violence or the threat of violence by another, including a co-worker, that can be construed to have been carried out at the workplace or to be carried out at the workplace, or that may be carried out at the workplace in the future, may petition for an ex parte temporary restraining order, a preliminary injunction, or a permanent injunction in the circuit court in the circuit in which the petitioner maintains the employer's principal place of business on behalf of the employer, or one or more of the employer's employees, prohibiting and enjoining further violence or threats of violence from the individual who has engaged in the violence or who has made the threats of violence.

(c) Any employee who has been subjected to violence or the threat of violence by another, including a co-worker, that can be construed to have been carried out at the workplace or to be carried out at the workplace, or that may be carried out at the workplace in the future, may petition for an ex parte temporary restraining order, a preliminary injunction, or a permanent injunction from the circuit court of the circuit in which the employee resides on behalf of the employee, or the employee's immediate family or household members, prohibiting and enjoining further violence or threats of violence from the individual who has engaged in the violence or has made the threats of violence.

§ -5 Petition for relief. (a) A petition for relief under this chapter shall be in writing, and shall allege that a past act or acts of violence may have occurred or that a threat or threats of violence have occurred, may have occurred, or may occur in the future unless restrained. The petition for relief shall be accompanied by one or more affidavits made under oath, or one or more statements made under penalty of perjury, stating the specific facts and circumstances for which relief is sought; provided that the Hawaii rules of evidence regarding hearsay evidence shall not apply to the affidavit or statement of any person acting or appearing as a representative of an employer in any action under this chapter.

(b) Upon a petition for relief to a circuit court under this chapter, the court may enter a temporary restraining order against the respondent without a hearing upon a determination that there is good cause to believe that:

(1) Violence or a threat of violence has or may have occurred;

(2) Violence or a threat of violence may be imminent or may occur in the future;

(3) Irreparable harm may result to the employer or employee if the request for relief is denied; or

(4) Providing notice to the respondent might trigger the very violence or threat of violence sought to be restrained.

(c) The court may issue an ex parte temporary restraining order either orally or in writing; provided that an oral order shall be reduced to writing by the court as expeditiously as practicable following issuance of the oral order.

(d) For the purposes of this chapter, there shall be a presumption that violence or the threat of violence shall constitute irreparable harm, and that the prevention and restraint of violence and the threat of violence shall be in the public interest.

§ -6 Acts of violence and threats of violence to be enjoined or temporarily restrained. (a) Any temporary restraining order, preliminary injunction, or permanent injunction issued pursuant to this chapter shall enjoin the respondent from performing any of the following acts:

(1) Engaging in any violence;

(2) Making any threat of violence;

(3) Contacting or threatening a petitioning employer or an employee on whose behalf the employer petitioned for relief, petitioning employee or an immediate family or household member on whose behalf the employee petitioned for relief, or an affiant or declarant, by any means including telephonic, written, or electronic contacts;

(4) Engaging in any physical contact with a petitioning employer or an employee on whose behalf the employer petitioned for relief, or a petitioning employee or an immediate family or household member on whose behalf the employee petitioned for relief;

(5) Entering or visiting the residence of a petitioning employer or an employee on whose behalf the employer petitioned for relief, or a petitioning employee or an immediate family or household member on whose behalf the employee petitioned for relief;

(6) Entering or visiting the place of business of a petitioning employer or the place of employment of an employee on whose behalf the employer petitioned for relief, or a petitioning employee or an immediate family or household member on whose behalf the employee petitioned for relief;

(7) Entering or visiting the employer’s place of business;

(8) Possessing, controlling, or using any firearm or ammunition while the temporary restraining order, preliminary injunction, or permanent injunction is in effect;

(9) Coming within one hundred feet of a petitioning employer or an employee on whose behalf the employer petitioned for relief, or a petitioning employee or an immediate family or household member on whose behalf the employee petitioned for relief, or an affiant or declarant; or

(10) Any other restriction, limitation, or order that, in the reasonable discretion of the court, is necessary under the circumstances to prevent workplace violence or the threat of workplace violence from occurring or reoccurring.

(b) The court may order that the respondent reimburse:

(1) The petitioner’s related and reasonable medical expenses, including reasonable expenses for mental health counseling;

(2) The petitioner’s reasonable legal fees and costs; or

(3) Any other items that are appropriate and necessary to fulfill the purposes of this chapter.

(c) Any temporary restraining order issued pursuant to this chapter shall order that the respondent immediately and affirmatively surrender all firearms, ammunition, or ammunition loading, packing, or manufacturing devices, in the respondent's possession, custody, or control to the appropriate county police department for safekeeping until further court order is issued, pursuant to section 134-7(f).

(d) Consistent with the rights afforded by the Fourth Amendment of the United States Constitution and article I, section 7 of the Hawaii State Constitution, if the court has probable cause to believe that the violence or threat of violence sought to be restrained pursuant to this chapter involves the use of a firearm, any temporary restraining order, preliminary injunction, or permanent injunction issued pursuant to this chapter may direct the department of public safety or the appropriate county police department to immediately search the respondent’s premises and property, including the respondent’s current residence and all motor vehicles registered in the respondent’s name or to which respondent has access, for the purposes of locating and seizing any and all firearms, ammunition, or ammunition loading, packing, or manufacturing devices, found during such a search, and to confiscate any firearms, ammunition, or ammunition loading, packing, or manufacturing devices located during such search until further order of the court.

(e) In the case that any ammunition loading, packing, or manufacturing device located during such search may not conveniently be taken into custody, transported, and stored, due to its size, law enforcement officers shall remove such parts of the device necessary to render such device inoperable and shall take the removed parts into custody until further order of the court.

(f) A temporary restraining order, preliminary injunction, or permanent injunction issued in accordance with subsection (c) and (d) shall be based on probable cause and shall have the same force and effect as a search warrant issued pursuant to part III of chapter 803. The law enforcement department conducting any search and seizure pursuant to subsection (d) shall provide the petitioner or petitioner’s legal counsel with a complete written inventory list of any and all firearms or other items seized immediately following the search and seizure, and file a return of service of the order with the inventory list attached as an exhibit and the authorizing court order.

§ -7 Duration of temporary restraining order. A temporary restraining order granted pursuant to this chapter shall remain in effect at the discretion of the court, for a period of time not to exceed ninety days from the date the temporary restraining order was granted; provided that either upon the motion of the petitioner or sua sponte decision of the court, the temporary restraining order may be extended periodically for reasonable periods of similar duration.

§ -8 Hearing on request for injunctive relief. (a) Prior to the expiration date of any temporary restraining order issued or extended pursuant to section -7, the court shall hear any related petitions for preliminary or permanent injunctive relief. Upon such motion, the respondent may respond to allegations of violence or threats of violence. At the hearing, the judge shall receive any testimony that is relevant and reaches the propensity for violence of the respondent; provided that a petitioner’s use of evidence pertaining to a respondent’s arrest and court record in connection with any proceeding authorized by this chapter shall not constitute a violation of chapter 378 or any related administrative rules.

(b) If the judge finds by a preponderance of the evidence that the respondent engaged in violence or made a threat of violence, that future violence or that future threats of violence are possible, or that respondent has a propensity for violence, the court shall grant a preliminary injunction or permanent injunction.

§ -9 Duration of injunction. A preliminary injunction or permanent injunction issued pursuant to this chapter shall have a duration of not more than five years; provided that the petitioner may apply for periodic renewals of the preliminary injunction or permanent injunction at any time before expiration of the existing preliminary injunction or permanent injunction by filing a motion with the court.

§ -10 Service of restraining orders and injunctions. (a) Upon the request of the petitioner, the court may order the department of public safety or the appropriate county police department to serve the temporary restraining order, preliminary injunction, or permanent injunction and related documents upon the respondent.

(b) In the case that the petitioner elects not to request that the department of public safety or the appropriate county police department serve the temporary restraining order, preliminary order, or permanent injunction and other related documents, the petitioner may request that the order be forwarded by the clerk of court to the department of public safety or the appropriate police department, and any such request by petitioner shall be effectuated by the clerk of the court within twenty-four hours of the request. The department of public safety and each appropriate county police department shall make available to other law enforcement officers, through a system for verification, information as to the existence of any temporary restraining order, preliminary injunction, or permanent injunction, or other order issued pursuant to this chapter.

§ -11 Violation of restraining order or injunction. (a) Any violation of a temporary restraining order, preliminary injunction, permanent injunction, or other related order issued pursuant to this chapter shall be punishable as criminal contempt as it is defined under section 710-1077.

(b) Any violation of a temporary restraining order, preliminary, permanent injunction, or other related order issued pursuant to this chapter prohibiting the possession, control, use of any firearm or ammunition shall be punishable as an offense under section 134-7.

§ -12 Effect on other laws. (a) Nothing in this chapter shall be construed as creating, expanding, diminishing, altering, or modifying the duty, if any, of an employer to provide a safe workplace for employees and other persons, or to invoke or use the provisions of this chapter in any given circumstance. The failure to invoke or use the provisions of this chapter shall not form the basis for any claim or liability against an employer.

(b) Nothing in this chapter shall be construed as limiting any other rights or remedies available to an employer or employee under existing law, including the seeking of injunctive relief through methods other than the procedures set forth in this chapter; provided that no other state law shall limit the ability of an employer or employee from seeking relief pursuant to this chapter.

(c) There shall be no civil liability for any employer or employee who initiates a proceeding pursuant to this chapter or who commits acts or makes statements in connection with any proceeding pursuant to this chapter or in connection with the investigation of any alleged act of violence or threat of violence in the workplace."

SECTION 2. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

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. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2028
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII