The compliance pitfalls of the Workplace Violence Prevention Law

In the wake of shootings in Half Moon Bay, Monterey Park, and the Valley Transportation Authority railyard, workplace violence prevention became a top priority for the California Legislature this past legislative session. On Sept. 30, 2023, Gov. Newsom signed Senate Bill 553 – the Workplace Violence Prevention Law. This first of its kind legislation requires virtually every California employer to establish, implement, and maintain an effective workplace violence prevention plan with 12 required elements. These elements include the following: to investigate every incident of workplace violence, create and maintain violent incident logs and investigation reports, engage in workplace violence specific hazard identification, evaluation, and correction, conduct annual employee and supervisor training, and abide by additional recordkeeping requirements by July 1, 2024.

While these requirements may seem straightforward, compliance pitfalls await employers who fail to delve into them deeply. Moreover, mandated responses to workplace violence incidents may expose employers to legal claims in other areas of the law, including those related to discrimination, privacy, and common law. Below are key aspects of Senate Bill 553 that every employer should have on their radar.

Workplace violence law not limited to physical injuries or physical workplaces

The new law expands the meaning of workplace violence into areas not historically regulated by employers. Workplace violence is no longer limited to physical injuries, but also includes situations that result in “psychological trauma” or “stress.” In addition, the law defines a threat of violence as including “texts, electronic messages, social media messages, or other online posts, or any behavioral or physical conduct, that conveys an intent, or that is reasonably perceived to convey an intent, to cause physical harm or to place someone in fear of physical harm...” This may require employers to monitor and mitigate concerns outside the traditional workplace. When developing plans, employers should consider and prepare for how they will investigate and respond to these unique situations.

Plans cannot be one-size fits all

While employers may be tempted to draft generic plans, blanket policies will not be compliant with the requirement that plans be “specific to the hazards and corrective measures for each work area and operation.” (emphasis added). Each plan will have to evaluate and account for the potential unique hazards of each area and operation within the workplace (e.g. parking lots, areas with public access, etc.)

In addition, while the 12 required elements seem simple, they will need in-depth evaluation and development. Importantly, plans must be effective. It is not enough to have written procedures; they must work in practice. This will require employers to assess whether the plan’s procedures achieve their stated purpose and revise them if they fall short.

Employee training must be annual and interactive

Training is required annually, and additional training must be provided when a new or previously unrecognized workplace hazard has been identified and when changes are made to the plan. Training must include an opportunity for “interactive questions and answers with a person knowledgeable about the plan.” What is considered “interactive” is still unclear. While existing guidance on California sexual harassment prevention training allows for questions to be answered within two business days, there is no guidance on whether Cal/OSHA, the state agency with authority to enforce this law, will allow for the same timeframe or will require a shortened compliance window.

Intersections with other laws

Employers will not be able to develop and implement their workplace violence prevention plans in a vacuum. As noted above, this endeavor raises intricate legal considerations encompassing Cal/OSHA, employment law, workers’ compensation law, and common law, to name a few.

Anti-discrimination laws

Uniform application of workplace policies to all employees, regardless of protected characteristics, is paramount. Senate Bill 553’s expansive definition of workplace violence, encompassing threats likely to cause psychological trauma or stress, leaves interpretation to the employer. Preconceived notions about who might commit acts of violence or who is vulnerable must be set aside when assessing incidents and ensuing disciplinary actions. For example, employers should ask themselves if they are treating alleged violent statements from a man differently than those from a woman, and whether the discipline is similar for the gravity of the incidents. Ensuring consistent evaluation is crucial to avoid potential discrimination claims. On the other hand, workplace violence incidents motivated by a protected characteristic of the victim may give rise to discrimination and harassment claims from the victim.

Employee privacy

Employee privacy is also a critical concern in the aftermath of workplace violence incidents. While employers often adopt a rigorous approach in their investigations, privacy laws remain applicable, especially concerning the collection and use of public or criminal records, surveillance, and searches. Employers must balance their investigative duties with employees’ right to be free from unreasonable invasions of privacy. Investigations can unearth sensitive and private information on the victim and alleged perpetrator. Senate Bill 553 explicitly excludes medical information from workplace violence incident records, but employers must establish safeguards for other sensitive information collected during investigations.

Workers’ compensation

Injuries resulting from workplace violence incidents are generally covered by Workers’ Compensation, which provides benefits to injured employees without regard to fault. Notably, the exclusive remedy rule does not apply if an employee’s injury or death results from a willful physical assault by the employer, which may include actions by a supervisor. In such cases, injured employees can pursue claims in civil court against their employer.

Employers must also be wary of lawsuits from third parties for claims such as negligent hiring, supervising, or retaining an unfit employee or premises liability.

The task of implementing workplace violence prevention plans is arduous, and employers should collaborate closely with their human resources, legal, and safety teams to navigate this complex legal landscape. Furthermore, given the level of evaluation that must be done, employers should not wait to develop their programs.