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ConAgra and Baird Holm Tally a Win for Nebraska Employers and Workplace Safety

on Tuesday, 17 June 2014 in Labor & Employment Law Update: Sarah M. Huyck, Editor

In May of 2014, in the case of ConAgra v. Zimmerman, the Nebraska Supreme Court reversed a lower court’s ruling, holding that ConAgra was entitled to a one-year permanent injunction against Zimmerman, the estranged husband of an employee, to prevent future harm to its property and its employees. The decision is a victory for all Nebraska employers and their right to protect their business property and employees from violence.

In this case, ConAgra’s evidence showed that in the early morning hours of November 10, 2012, a white male drove onto ConAgra’s property and fired a gun five times at two men washing windows on one of ConAgra’s buildings and drove away. On November 13, 2012, police arrested Zimmerman. The two window washers positively identified Zimmerman as the shooter.

On behalf of ConAgra, Baird Holm attorneys immediately served a bar and ban letter on Zimmerman and sought a temporary restraining order, preliminary injunction, and one-year permanent injunction from the state district court against Zimmerman in an effort to protect ConAgra’s property, employees, and customers. ConAgra sought to restrain and enjoin Zimmerman from intruding upon any of ConAgra’s properties for a full year.

Relying on a 1908 case for the proposition that a single trespass was insufficient to impose injunctive relief, the district court denied ConAgra the requested relief. The court opined that because Zimmerman had only trespassed once, it could not impose injunctive relief under the law.

ConAgra appealed to the Nebraska Supreme Court which noted that the issue was “whether ConAgra met its burden in establishing that Zimmerman is likely to trespass again and that the existing remedies at law are inadequate to remedy such a trespass.” Reversing the lower court, the Nebraska Supreme Court reasoned that “the uncontroverted facts sufficiently demonstrate that Zimmerman will again trespass in flagrant violation of criminal law upon ConAgra’s property. Therefore, justice requires a one-year permanent injunction.”

The Court noted that while prosecution of criminal offenses is normally a complete remedy, injunctions may be appropriate where continuing, flagrant violations occur. Here, the evidence showed that Zimmerman had previously harassed his wife, had pending stalking charges, and was out on bond for the criminal charges related to the shooting at issue and therefore could trespass again. Accordingly, the Court held that an injunction should have been ordered. The Court stated, “Through his deplorable actions, Zimmerman has demonstrated that he is willing to flagrantly violate the criminal laws of this state in order to trespass upon ConAgra’s property. … we do not feel comfortable standing by idly when justice calls for action.”

A lengthy dissent characterized the majority’s opinion as a departure from more than 100 years of law. The dissent argued that a bar and ban letter and the criminal process was sufficient to protect ConAgra, and that corporations should not have status as victims’ employers to gain such protection under the injunction statutes.

In reality, however, it has been found that bar and ban letters are not as effective as injunctions, and the criminal process does not always have sufficient avenues for protecting the business entity affected by such violence. While bar and ban letters can be effective, one more intrusion must occur after the letter is served before criminal measures kick in. An injunction, on the other hand, restrains the individual from making even one more intrusion and is issued by a judge, which has more force and effect upon such individuals.

Accordingly, ConAgra’s decision to pursue this appeal and gain a victory for employers must be applauded as this decision clarifies the remedies an employer may have to protect its premises, employees, and visitors. Employers are not left helpless without a means of protecting themselves.

While the decision to seek an injunction is a fact-specific inquiry, an injunction can be an effective tool used in conjunction with help from local authorities, bar and ban letters, criminal prosecution, and other security measures. As in this case, Baird Holm has a “rapid response” team which can assist you in taking appropriate measures to protect your workplace from violent individuals.

Heidi A. Guttau-Fox

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500

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