Workplace Safety Obligations at the Edge of the First Amendment

As employers look to strengthen workplace safety programs in 2026, it is increasingly important to reassess when and how to use Workplace Protection Orders (WPOs) to address threatening or escalating behavior. Recent legal developments—including the U.S. Supreme Court’s decision in Counterman v. Colorado—introduce new constitutional considerations to this essential workforce protection tool.

With workplace violence rising and regulators sharpening their focus, WPOs allow employers to intervene before conduct escalates, restrict access to worksites, prevent unwanted contact and support employee well‑being. A recent survey of over 1,000 full-time U.S. employees found that 30% of employees witnessed violence against coworkers within the past five years—up from 25% in 2024—while 15% directly experienced violence themselves, an increase from 12% the previous year.

WPOs are also uniquely effective in addressing threats from third parties—former employees, customers, domestic partners, vendors or other non‑employees—over whom employers lack disciplinary authority but could still trigger duties under the Occupational Safety and Health Administration’s (OSHA) general duty clause, Title VII, state workplace safety standards and common law obligations. By taking proactive steps, employers can reduce exposure to hostile work environment allegations and demonstrate compliance with workplace‑safety obligations.

At the same time, because WPOs often intersect with expressive activity—verbal aggression, labor relations disputes or online communications—employers should be mindful that First Amendment considerations may apply. This alert outlines what employers need to know about today’s WPO landscape, how states differ in authorization and protection, and practical steps to reduce constitutional risk while protecting employee safety.

How Workplace Protection Orders Work

Who May File: In many states, employers may petition directly for protective relief. California offers one of the most comprehensive frameworks, allowing Workplace Violence Restraining Orders based on violence, threats or—as of Jan. 1, 2025—harassment alone. Cal. Code Civ. Proc. Section 527.8.

Nevada follows a similar model, permitting employer‑initiated WPOs and providing additional procedural protections. NRS 33.200, et seq.

Colorado, by contrast, lacks a dedicated WPO statute. Employers instead rely on civil protection orders under C.R.S. §  13‑14‑104.5, which can bar contact or workplace access.

What a WPO Can Do: Depending on the jurisdiction, courts can order an individual to:

• Stay away from one or more worksites
• Cease all contact with specified employees
• Avoid certain communications or online behavior
• Comply with enforcement measures, including arrest for violations

WPOs can extend protection to affected employees’ families, nearby facilities or other business locations.

Immunity Considerations: Employers in Nevada benefit from good‑faith immunity when seeking a WPO, reducing civil liability exposure for filing a petition or submitting supporting information. Under NRS 33.340(1), an employer is immune from civil liability for “[s]eeking a temporary or extended order for protection against harassment in the workplace, if the employer acts in good faith in seeking the order” or for failing to seek such an order. In addition, NRS 33.340(2) provides that an “action taken or a statement made by an employer pursuant to NRS 33.200 to 33.360 … [(a)] shall not be deemed an admission by the employer of any fact.” These protections do not apply to bad‑faith conduct (e.g., knowingly false statements, retaliatory motives or petitions filed with malice), so employers should ensure allegations are truthful, well‑documented and supported by credible evidence.

California and Colorado do not provide WPO‑specific immunity, but both jurisdictions extend broad litigation‑privilege protection to statements made in pleadings, declarations and in‑court filings, which generally bars any civil liability based on the content of those filings, even if the content is false and/or malicious.

Constitutional Backdrop: The Counterman Standard

In Counterman v. Colorado (2023), the Supreme Court clarified when threatening speech loses First Amendment protection. 600 U.S. 66 (2023). Although Counterman arose from a criminal prosecution, the court framed the issue as a matter of First Amendment doctrine rather than one based on criminal procedure. As Justice Barrett’s dissent emphasized, the majority’s rule presumptively applies in civil contexts as well. Per Counterman, courts must consider the speaker’s subjective mental state, not just how a reasonable person would perceive the communication. Under that standard, a threat is constitutionally actionable only if the speaker subjectively acted with at least recklessness—meaning a conscious disregard of the risk that their statements would be viewed as threatening.

Against that backdrop, courts evaluating protective‑order regimes must also account for the procedural posture of these cases, many of which exhibit quasi‑criminal characteristics. See NRS 33.100; C.R.S. § 18‑6‑803.5; Cal. Penal Code § 273.6 (Nevada, Colorado and California each treat violations of WPOs as a misdemeanor).

For employers, this means WPO petitions to combat speech-based harassment that are supported solely by an employee’s fear or discomfort may not suffice. Instead, evidence of the wrongdoer’s subjective mental state surrounding his or her threat is what matters. Courts evaluating orders that affect expressive activity will look for evidence that the respondent knew of—or consciously disregarded a substantial risk of—the threatening nature of their speech.

The Prior Restraint Trap

WPOs that expressly or inadvertently restrict future expression are effectively prior restraints—court orders that prevent speech before it occurs. The Supreme Court has long held that “prior restraints on speech … are the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). As a result, courts view such orders with intense skepticism and they rarely survive First Amendment scrutiny.

The requirements for such orders to withstand First Amendment scrutiny are similar in California, Colorado and Nevada. As the Nevada Supreme Court said, prior restraints may survive only if:

1. The interest protected is of the highest order,
2. The order is narrowly drawn, and
3. No less restrictive alternatives exist.

Las Vegas Review‑Journal v. Eighth Judicial District Court, 412 P.3d 23 (2018); see Hurvitz v. Hoefflin, 84 Cal.App.4th 1232 (2000); see People v. Bryant, 94 P.3d 624 (2004).

For employers, this means overbroad, speech‑focused restrictions are risky, and an order aimed at “harassing” or “abusive” speech may not withstand scrutiny unless the applicant has offered evidence to meet the “conscious disregard”/recklessness standard.

Practical Steps for Employers When Combating Speech-Based Harassment

1. Ground the Petition in Conduct, Not Expression. Courts are more comfortable restricting access, proximity, following and repeated unwanted contact because it affects conduct that is generally non-expressive. For example, requests prohibiting parking lot ambushes or repeated in‑person appearances are more defensible than bans on “critical online posts” or “angry emails.” When conduct and speech overlap, emphasize the pattern of unwanted contact, not the content.

2. Build a Record Supporting Recklessness. Document behavioral escalation, context, prior warnings and any evidence that the individual knew—or consciously disregarded a substantial risk—that their speech would be perceived as threatening. For example, a vendor who was instructed by building management to avoid restricted areas but continued returning to those spaces after confrontational encounters with staff shows escalating behavior and awareness of its impact. Likewise, a contractor who bypassed required security check‑ins and approached employees directly—despite being told to use designated access points—demonstrates disregard for clear instructions and the likelihood that such speech would alarm workers. Evidence of recklessness may also include a third party who, after being warned by facility security that their aggressive complaints were causing concern, sent follow‑up messages implying future retaliation, indicating they understood or consciously ignored the risk that their statements would be perceived as threatening.

3. Avoid Ex Parte Orders Unless Necessary. When a petition seeks immediate relief without notice (an ex parte order), courts are more likely to view it as a potential prior restraint. Use this option only where facts clearly show imminent harm—for example, credible threats of immediate violence, evidence the individual has acquired weapons or expressed intent to use them, escalating stalking behavior, or explicit statements of intent to harm specific employees. Courts expect employers to demonstrate that waiting for a noticed hearing would expose employees to an unreasonable risk of serious physical harm.

4. Be Cautious in Labor Settings. Many statutes expressly exclude union activity from WPO coverage. Make sure petitions distinguish protected, concerted activity from actionable threats.

5. Tailor Requests Narrowly. Focus on safety: workplace access, distance requirements and specific no contact terms. Broad prohibitions on speech are more vulnerable to challenge.

Key Takeaways

• Employers have tools to protect their workforce, but Counterman raises the bar for speech‑based relief.
• California’s 2025 harassment expansion significantly broadens when employers may act—but does not provide statutory immunity for doing so.
• Colorado’s lack of a dedicated WPO statute requires more careful navigation of general protection‑order processes.
• Overbreadth remains the greatest First Amendment risk—narrow, conduct‑based orders are safer.

As workplace‑safety expectations continue to evolve, organizations should review their policies and response strategies to ensure they remain proactive, effective and constitutionally sound. If you have questions about Workplace Protection Orders or how these developments affect your organization, please contact your Brownstein team.

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This document is intended to provide you with general information regarding workplace protection orders. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.