ILNews

Workplace threat injunction deemed invalid

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

An employee’s reported threat to blow his boss’s head off resulted in an injunction barring him from the workplace, but the Indiana Court of Appeals reversed recently in a case that highlighted conflicting statutes aimed at preventing violence on the job.

A 2002 statute, the Workplace Violence Restraining Order Act, was used to secure an injunction against an employee who was accused of communicating a threat against his supervisor to someone in the company’s human resources employee assistance program.

But in reversing, the appeals panel found that a Depression-era statute enacted in response to employer-sponsored violence against striking workers prevents injunctions under the 2002 law if the threat arises from a labor dispute.

dau-schmidt Dau-Schmidt

“The problem here was (the company) didn’t proceed under the right statute,” said Indiana University Maurer School of Law professor Kenneth Dau-Schmidt, a nationally recognized authority in labor law.

The 1930s-era law, the Anti-Injunction Act, I.C. 22-6-1, requires a greater level of scrutiny before a court may order someone barred from a workplace. Parties must be allowed a hearing, for instance, and a court must make findings of fact before an injunction can be issued under this Act. A bond against wrongful injunction also may be required.

Under the 2002 statute, I.C. 34-26-6, a court may issue a temporary restraining order in response to workplace violence or the credible threat of workplace violence and may follow up by issuing an injunction after a hearing, as was done in this case.

Laurie Martin, a partner and employment attorney at Hoover Hull LLP in Indianapolis, said “there are still a lot of situations that aren’t implicated at all by the opinion, where the Workplace Violence Restraining Order Act might apply.”

Gerald Lutkus, an attorney at Barnes & Thornburg LLP in South Bend, said under federal law, the National Labor Relations Board has carved out exceptions for certain types of speech that lose the protection of law. “Threats are one of those,” he said.

Neither Martin nor Lutkus were involved in this case.

Threats of violence were one of the things the Workplace Violence Restraining Order Act was designed to deal with, Lutkus contends. “That’s the dilemma the decision presents.”

Different times

Dau-Schmidt said the AIA stemmed from an era when labor unions or workers often didn’t get an opportunity to respond to an employer’s request for injunctions, or when companies persuaded courts they had no means to serve notice on crowds of picketing laborers.

The result was workers who violated injunctions – often unknowingly – could be jailed. Some companies “hired Pinkertons to beat these people up,” Dau-Schmidt said.

Statutes in Indiana and virtually all other states were patterned after the federal Norris-LaGuardia Act of 1932 that limited the ability of courts to issue injunctions against workers. Yet the AIA, also known as Indiana’s “little Norris-LaGuardia Act” expressly allows for injunctions for violence or threats of violence, Dau-Schmidt said.

“They wrote the ‘little Norris-LaGuardia Act’ very broadly to cover almost every conceivable situation” arising from workplace disputes, he said. “It’s pretty demanding language, because the system was being abused.”

The Court of Appeals on July 11 decided A.H. v. C.E.G. on behalf of G.S., 49A05-1310-PO-525, reversing the injunction issued by Marion Superior Judge Gary L. Miller. The appeals court in a footnote observed that A.H. requested, and the motions panel granted, his request to prohibit public access to filings, so initials were used to protect the privacy of parties.

Attorneys who represented parties on both sides of the dispute declined to comment about the case due to the court’s order.

martin Martin

C.E.G. is Citizens Energy Group. Spokeswoman Sarah Holsapple said the company does not plan to seek an appeal of the Court of Appeals ruling to the Indiana Supreme Court.

What’s a labor dispute?

The case turned on a determination of whether the injunction was issued as a result of a labor dispute, which the court noted is expressly prohibited by the Workplace Violence Restraining Order Act. “Therefore, if the instant case involves or grows out of a labor dispute as defined by the AIA, we must conclude that the trial court did not have jurisdiction to grant relief pursuant to the WVROA,” Judge Terry Crone wrote for the panel.

The appeals court held that this was a labor dispute because it met the criteria under the AIA of a dispute between an employer and employee or between two or more employees.

According to the case record, A.H. sustained an unspecified injury at work. Later the same day, his supervisor called to ask him about working the next day, a Saturday. The supervisor said he thought A.H. was loud and disrespectful, though A.H. said he would work at 6 a.m. but not 4 a.m.

As conflicts between the worker and supervisor escalated, A.H. complained he was being unfairly treated in comparison to other workers. He also sought a second opinion on his injury from a physician other than the company doctor his supervisor suggested, Crone wrote.

A.H. spoke to a therapist in the company’s employee assistance program who relayed to the supervisor that he was talking about blowing the supervisor’s head off. A.H., though, testified that he told the therapist he had a dream that he shot his boss.

Attorneys representing Citizens Energy Group argued the WVROA provides a remedy and that the AIA was meant to apply to organized labor activities – a position the appeals panel rejected.

“C.E.G. cites no cases that limit the application of the AIA in the manner it advances,” Crone wrote. “We conclude that a ‘labor dispute’ for purpose of the AIA is not confined to situations involving a union.”

Law’s limits

Martin said employers should be thinking from a policy perspective about internal procedures to provide remedies such as suspensions when threats arise, but the WVROA still can be a useful tool, particularly when an employee is threatened by someone who isn’t a co-worker.

“It gets tricky then in this co-worker to co-worker context,” Martin said. “There is prior authority out there that the statute does apply if the dispute is found to be purely personal in nature.

“It is just a fact-intensive inquiry when it gets into the inquiry of what arises out of a labor dispute,” she said.

Martin said the panel in A.H. differed from some prior appellate panel rulings.

“One difference I think between some other panels’ opinions and this one is whether the focus of the inquiry should be on the conduct that led to the threat … or the threat itself,” she said.

But Martin said the court made clear the plain meaning of the Anti-Injunction Act and other statutes traditionally viewed as those applicable to organized labor. “They can and do apply in non-union workplaces,” she said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hello everyone am precious from the united state of America am here to testify in the name of this great man who has brought back happiness into my family after my lover Chris left me for 3years for another woman,i really loved Chris because he was my first love i tried everything within my power to get Chris back to my life but people i met just kept on scamming me and lying to me,Then normally on Saturdays i do go out to make my hair and get some stuff,Then i had people discussing at the saloon if they do listen to there radio well,That there is a program (how i got back my ex)And started talking much about Dr EDDY how this man has helped lots of people in bringing back there lover,So immediately i went close to those ladies i met at the saloon and i explained things to them they said i should try and contact Dr EDDY that he has been the talk of the town and people are really contacting him for help immediately we searched on the internet and read great things about Dr EDDY i now got all Dr EDDY contact instantly at the saloon i gave Dr EDDY a call and i shared my problem with him he just told me not to worry that i should just be happy,He just told me to send him some few details which i did,And then he got back to me that everything would be okay within 36hours i was so happy then Dr EDDY did his work and he did not fail me,My lover Chris came to me in tears and apologized to me for leaving me in deep pain for good 3years,So he decided to prove that he will never leave me for any reason he made me had access to his account and made me his next of kin on all his will,Now the most perfect thing is that he can't spend a minute without seeing me or calling me,Am so grateful to Dr EDDY for bringing back the happiness which i lack for years,Please contact Dr EDDY for help he is a trustworthy man in email is dreddyspiritualtemple@gmail.com or you can call him or whatsapp him with this number...+23408160830324 (1)If you want your ex back. (2) if you always have bad dreams. (3)You want to be promoted in your office. (4)You want women/men to run after you. (5)If you want a child. (6)[You want to be rich. (7)You want to tie your husband/wife to be yours forever. (8)If you need financial assistance. (9)If you want to stop your Divorce. 10)Help bringing people out of prison. (11)Marriage Spells (12)Miracle Spells (13)Beauty Spells (14)PROPHECY CHARM (15)Attraction Spells (16)Evil Eye Spells. (17)Kissing Spell (18)Remove Sickness Spells. (19)ELECTION WINNING SPELLS. (20)SUCCESS IN EXAMS SPELLS. (21) Charm to get who to love you. CONTACT:dreddyspiritualtemple@gmail.com

  2. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  3. MELISA EVA VALUE INVESTMENT Greetings to you from Melisa Eva Value Investment. We offer Business and Personal loans, it is quick and easy and hence can be availed without any hassle. We do not ask for any collateral or guarantors while approving these loans and hence these loans require minimum documentation. We offer great and competitive interest rates of 2% which do not weigh you down too much. These loans have a comfortable pay-back period. Apply today by contacting us on E-mail: melisaeva9@gmail.com WE DO NOT ASK FOR AN UPFRONT FEE. BEWARE OF SCAMMERS AND ONLINE FRAUD.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

ADVERTISEMENT