California has enacted the first general industry workplace violence prevention safety requirements in the United States.
On September 30, 2023, California enacted SB 553, which will be applicable to nearly all California employers, with few exceptions. SB 553 requires covered employers to develop and create a workplace violence prevention plan as part of their Injury and Illness Prevention Plans.
What are the Definitions of “Employer” and “Employee”?
“Employer” and “employee” mean persons defined in section 350 of the Labor Code.
“Employer” also includes a federal agency, the state, a state agency, a city, county, or district, and a private, public, or quasi-public corporation, or any public agency thereof or therein.
“Employee” also includes the members of boards of directors of private, public, and quasi-public corporations and elected and appointed public officers. For purposes of this section only, “employee” also includes a volunteer or independent contractor who performs services for the employer at the employer’s worksite.
What Must Employers Do?
Covered employers must “establish, implement, and maintain an effective workplace violence prevention plan.” The requirements for these plan must include the following elements:
- Identification of the person or persons responsible for implementing the program;
- The employer’s system for identifying and evaluating workplace hazards, including scheduled periodic inspections to identify unsafe conditions and work practices;
- The employer’s methods and procedures for correcting unsafe or unhealthy conditions and work practices in a timely manner;
- An occupational health and safety training program designed to instruct employees in general safe and healthy work practices and to provide specific instruction with respect to hazards specific to each employee’s job assignment;
- The employer’s system for communicating with employees on occupational health and safety matters, including provisions designed to encourage employees to inform the employer of hazards at the worksite without fear of reprisal;
- The employer’s system for ensuring that employees comply with safe and healthy work practices, which may include disciplinary action; and
- A workplace violence prevention plan conforming to the requirements of § 6401.9.
In addition, an effective workplace violence prevention plan must provide initial training about the plan when first established and annual training. Further, employers must also keep various records specified in the new law, including:
- Records of workplace violence hazard identification, evaluation, and correction;
- Training records;
- A violent incident log for every workplace violence incident; and
- Records of workplace violence incident investigations.
Employers must maintain these records for at least five years and be available to produce to Cal/OSHA upon request.
Changes to Laws on Restraining Orders
Under current California law, employers are authorized to seek restraining orders on behalf of one or more employees when the employees have been the victim of violence or a credible threat of violence has been made against them. However, SB 553 makes three substantive changes to California Code of Civil Procedure § 527.8.
Now, only an employer is authorized to seek a restraining order on behalf of its employees (which include volunteers and independent contractors performing services at the employer’s worksite). As of January 1, 2025, the law will be broadened to permit a collective bargaining representative to petition for a restraining order. To be eligible to petition for a restraining order, the collective bargaining representative must be the collective bargaining representative “in employment or labor matters at the employee’s workplace” for the employee for whom the restraining order is being sought.
A person may bring a petition for a temporary restraining order and an order after hearing on behalf of an employee as their collective bargaining representative only if the person serves as a collective bargaining representative for that employee in employment or labor matters at the employee’s workplace.
Upon filing a petition under this section, the petitioner may obtain a temporary restraining order in accordance with § 527(a), if the petitioner also files a declaration that, to the satisfaction of the court, shows one of the following:
(A) Reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the respondent, and that great or irreparable harm would result to an employee.
(B) Clear and convincing evidence of all of the following:
(i) That an employee has suffered harassment by the respondent.
(ii) That great or irreparable harm would result to an employee.
(iii) That the course of conduct at issue served no legitimate purpose.
(iv) That the issuance of the order is not prohibited by constitutionally protected speech.
As to the last element of evidence above, a court may consider two specific laws in determining if the restraining order would prohibit speech or other activities that are constitutionally or are otherwise legally protected. These protections will now include speech or conduct protected under the National Labor Relations Act and Government Code §§ 3555 through 3559 (which generally provide certain rights to unions to communicate with employees they represent and other protected activities including employees being able to seek union leave, etc.).
The temporary restraining order may include any of the protective orders described in paragraph (7)(b), including enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the employee.
Finally, SB 553 provides that anyone seeking a restraining order must first provide the employee who has suffered unlawful violence or a credible threat of violence from any individual with the ability to remain anonymous. An employee’s request to not be named in the temporary restraining order won’t prohibit an employer or collective bargaining representative from seeking a temporary restraining order on behalf of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.
The new law takes effect on July 1, 2024.
Bottom Line
Covered employers must develop and implement a workplace violence prevention plan (as part of their Injury and Illness Prevention Plans) that satisfies the requirements of the new Labor Code § 6401.9 by July 1st of next year.