January 2014

By: Anthony J. Caruso, Esq.

An employer has an ex-employee who performed services for the company. This individual is now threatening the company and or its workers with potential violence or harm. What can an Illinois Employer do? There may now be help for the employer.

On January 1, 2014, the Illinois Workplace Violence Prevention Act became law. Under this new law, companies/employers can limit the access of potentially violent individuals in their workplace.

What Individuals can be Denied Access to the Workplace?

• A person employed or permitted to work or perform a service for remuneration;

• A member of a board of directors for any organization;

• An elected or appointed public officer; and

• A volunteer, independent contractor, agency worker or any other person who performs services for an employer at the employer’s place of work.

What Must the Employer Prove to Get an Order of Protection?

I. Unlawful Violence:
An employee has suffered unlawful violence (any act of violence, harassment, or staling as defined by the laws of the State of Illinois);

OR

Credible Threat of Violence:
A credible threat of violence from the person (a 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);

AND

II. Employee’s Place of Work:
The unlawful violence has been carried out of 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

III. Irreparable Harm:
An employee may obtain an Order of Protection under the Illinois Domestic Violence Act, if the employer:

• Files an affidavit that shows, to the satisfaction of the court, reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence by the defendant;

AND

• Demonstrates that great or irreparable harm has been suffered, or will be suffered, or is likely to be suffered by the employee.

Is Employer Actually Required to Get an Order of Protection?

The employer may have a duty of care under the General Duty Clause of OSHA or under VESSA (the Illinois Victims Economic Safety Security Act) to prevent violence in the workplace. Also, the employer may have a common law duty to prevent violence in the workplace. A negligent failure to act (when the employer had knowledge of potential violence) may hold the employer liable for injuries incurred by the employee or co-workers.

In short, time will tell as to how often employers will use this new tool in Illinois to prevent violence in the workplace. The effort and legal expense in securing an Order of Protection may deter some employers. Also, employers may encourage the affected employee to secure on their own time and legal expense an Order of Protection (if the threat is clearly personal rather than business related).

If you have any questions or concerns about this topic or any other questions related to employment, please call attorney Anthony J. Caruso of Wessels Sherman’s St. Charles, Illinois office at (630) 377-1554 or e-mail ancaruso@wesselssherman.com.