Employment lawyer shares concerns, tips for HR on state's new legislation
With SB-553 signed into law, nearly all California employers will be required to formulate Workplace Violence Prevention Plans, train employees on workplace violence and begin logging violent incidents in detail by July next year.
Governor Gavin Newsom signed the bill – SB 553 – on Sept. 30, superseding a similar standard the California Division of Occupational Safety and Health (Cal/OSHA) had been working on since 2017; now, Cal/OSHA’s Standards Board will be required to codify the SB 553 guidelines into its workplace violence standards and begin enforcing them by July 1, 2024.
The law is a signifier of a more employee-friendly Cal/OSHA, but there are several gray areas for HR to be aware of, said Ogletree Deakins shareholder Karen Tynan.
“I think there are some businesses that do have a greater propensity for workplace violence, and I think it makes sense. But for many businesses, their risk is infinitesimal,” said Tynan. “And this was just such a broad brush across everybody, from small manufacturers to bigger retail stores. I think that's one of the issues with this law, is it's such a broad brush.”
Historically Cal/OSHA tended to stay out of workplace violence incidents, Tynan explained. But starting with the Half Moon Bay mass shooting in January of this year, Cal/OSHA has more actively investigated instances of workplace violence.
“Cal/OSHA did issue citations [at Halfmoon Bay] for not having a workplace violence plan … so we see that there's been a big pivot in Cal/OSHA, and more interest in protecting workers from workplace violence, and going out and investigating, even before this law was passed,” she said.
However, opponents of the law have stated that it places too many limits on businesses by applying a “one-size-fits-all” approach; in response to the bill’s proposal, Rob Moutri, California Chamber of Commerce’s policy advocate, said California's public and private employers should be “very concerned” about the law since it adheres to standards already applied to the health care industry, which has high incidence of workplace violence.
“Cal/OSHA staff specifically rejected using the hospital standard for all industries, and have spent years working on a general industry draft that makes sense for all of California’s workplaces,” he said. “Sadly, SB-553 ignored those years of work and applies the hospital standard—with a few additional provisions—to even the smallest employer in the state.”
HR should focus their resources on training and communicating the new requirements of the law to management and employees, Tynan said, as the law stipulates an “interactive” component to training.
“You can't simply buy a video and tell people to watch it by themselves, or give people written materials,” she said. “The interactive part of the training is going to be critical for HR people to address and have effective methodology on.”
This includes an HR representative knowledgeable of the organization’s strategy to deliver information and respond to questions, she added – so employees can “robustly understand the workplace violence plan.”
The new law requires all California employees with one or more employee to “establish, implement, and maintain … a workplace violence prevention plan” and “record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation.”
Because of a requirement that employees be able to access and view the log, there is a weak spot there for possible litigation, Tynan said.
“The way the law is written, with requiring it to be provided to employees or their labor representatives, I think there's a rub right there,” she said. “For people in human resources, they're going to have to probably redact and protect particular information in that process, to make sure they're respecting the privacy that employees expect.”
Tynan recommends involving legal counsel every step of the way in recording incidents of violence, to ensure privacy concerns are addressed.
Terminology such as “threat of violence” and “workplace violence” are also vague, leaving the law open for interpretation, said Tynan.
The law defines “workplace violence” as: “The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury. […] An incident involving a threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.”
Because of the stipulation that “sustaining injury” is not a requirement for an act being potentially violent, HR will have to be analytical of cases involving verbal altercations or social media threats, she said.
“I think that many company cultures are going to be incorporated in this … maybe construction companies that allow a little more profane talk at work are going to handle things differently than a customer service-oriented business.”
The law makes few exceptions. They include California Department of Corrections, law enforcement agencies, remote workers who are in locations of their choosing and out of control of the employer, and health care companies already covered by Cal/OSHA’s established health care standards.
Notably, also exempted are locations with fewer than 10 employees working at one time, where there is no access from the public.
“The hopes that people had when the bill was in the legislature, that there would be some carve-outs for either particular industries or smaller employers – there's not an exception that a lot of people are going to fall under,” Tynan said.
She also added that other state and federal lawmakers will likely follow suit, as California is often the trendsetter in employment and other legislation.
