California has become the first state to require private industry businesses to develop a comprehensive workplace violence prevention plan.
Governor Gavin Newsom signed Senate Bill 553 into law on September 20, 2023. Employers must implement plans and comply with the law by July 1, 2024. Places of employment not open to the public and with less than 10 employees are exempt from compliance. Cal/OSHA inspectors will enforce the law.
California healthcare facilities and certain services have been covered by a workplace violence rule since 2017.
Employer responsibilities
A workplace violence prevention plan must by law include these requirements (this is not a comprehensive list):
- Designated individuals are responsible for implementing and maintaining the plan.
- Employees must be involved in developing, implementing and reviewing the plan.
- Develop and provide training covering the site’s plan.
- Identify and evaluate risk factors for workplace violence.
- Correct workplace violence hazards.
- Record information in a violent incident log about every incident, post-incident, response and related injuries.
- Employees must fully understand the definition of workplace violence to report incidents. Reporting is not mandatory. All reported incidents must be investigated by the employer.
- Employers are prohibited from requiring employees to confront active shooters or suspected shoplifters.
The fallout
Many large California businesses have robust workplace violence prevention plans in place. They must ensure that their plans align with the law’s new requirements. Some small businesses that regularly service the public, such as gas stations and convenience stores, say the new law will put them out of business.
”This bill should be called retail business killer SB 553,” said one convenience store operator in a report by Sacramento-based KCRA3. “Small businesses are no longer going to be small businesses” due to the law’s requirements, said another store owner in the same report.
Numerous business groups, such as the California Chamber of Commerce, call the workplace violence law overreaching. To date, Cal/OSHA has issued no compliance guidance or a model workplace violence program, though it is reportedly working on one.
“Employers say, ‘What am I to do?’,” says Helen Cleary, director of the Phylmar Regulatory Roundtable®, with large company members in utilities, energy, aerospace, apparel, pharmaceuticals, real estate and technology.
Three areas of the new law could prove problematic for employers: 1) the definition of workplace violence; 2) identifying risk factors; and 3) how to response to reported incidents.
Definitions
During their training, employees must understand the meaning of workplace violence to report incidents, if they choose to do so. Reporting is not mandatory. This may be difficult because workplace violence is described differently in various references throughout the law, such as:
- Any employee who has suffered unlawful violence or a credible threat of violence from any individual to be carried out or has been carried out may seek a temporary restraining order.
- Violent conduct is composed of following or stalking an employee to and from the workplace, entering the workplace, following an employee during business hours, making telephone calls to an employee, or sending correspondence to an employee by any means, including but not limited to public or private mails, interoffice mail, faxes or computer email.
- Credible threat of violence is a knowing and willful statement or course of conduct that would place a reasonable person in fear for their safety or the safety of their immediate family, and that serves no legitimate purpose.
- Any employee who has suffered harassment, unlawful violence, or a credible threat of violence from any individual and can be construed as to be carried out or has been carried out may seek a temporary restraining order.
- Threat of violence means any verbal or written statement including texts, electronic messages, social media messages, other online posts, or any behavioral or physical conduct that conveys an intent to cause physical harm or places someone in fear of physical harm.
- Specific examples of behavior that will be viewed as violence, including but not limited to physically threatening statements, gestures, and expressions.
Employees considering filing a workplace violence report on the employer’s violent incident log must decide if violent intent or threat of physical harm is behind gestures; expressions; behaviors; texts; social media posts; verbal or written statements; harassment; unlawful violence; a course of conduct that places a person to fear for their safety or the safety of their immediate family; stalking or following during business hours; and any behavioral or physical conduct that conveys an intent of physical harm.
“These situations can be so subjective,” says Helen Cleary. “Was there an actual intent to cause violent harm? Can verbal abuse such as intimidation, bullying, belittling and so on be an actual intent to dish out physical harm, or is it a bad joke? Is verbal abuse just the way an employee talks?”
Does belittling or intimidating an employee that leads to mental or emotional harm, anxiety or depression – or is it simply a manager’s style?
Definitions of workplace violence in the law focus on physical acts or behaviors so potentially threatening that in some cases can lead to restraining orders. Violence is equated to physical actions and physical harm much more mental or emotional harm.
Is an employee stressed out and anxious due to a manager’s demands a victim of violence? The primary focus of workplace violence prevention plans is on physical assaults and physical harm, not mental or emotional damage.
An employee who is well-liked in the workplace will be cut slack when it comes to intimidation, harassment, bullying, says Cleary. A factor in “cutting slack” could be that verbal abuse is a minor offense in the minds of many employees when compared to physical acts of violence or potential violence that could to lead to temporary restraining orders.
Identify risk factors
Employers must identify risk factors that could lead to violence. Some risks are obvious – working with the public; working in premises where alcohol is served; disgruntled former or current employees; working alone or in isolated areas; and handling or guarding money.
But violent incidents can be unpredictable, spontaneous and difficult to find the risks. How can domestic or personal life issues that spill over to the workplace be identified as a risk factor for violence when they are most often private and unknown to employees? Conflicts with coworkers are commonplace, mostly verbal, and infrequently escalate to physical assaults. Is it an over-generalization to identify everyday coworker conflicts as risks of physical violence? In conducting a workplace assessment of situations or actions that increase the risk of violence, identifying risk factors is a mix of objectivity and subjectivity. Workplaces manufacturing the same product could easily come up with different risk factors.
Reporting
Employers must investigate all incidents on the violence log but may miss a variety of incidents. Some employees will not want to take the time to write a detailed description of the incident, the circumstances, and the location. Others will not want to “rat” on a coworker, especially in workplaces with a small workforce where the perpetrator, although unnamed, will be known to many employees. An employee may consider actual incidents to be minor offenses not worthy of being reported – pulling hair, slapping, pushing and pulling, grabbing or spitting, a social media post, an animal bite, verbal abuse that may be a manager yelling about mistakes being made. Some employees will not want to be dragged into an investigation of an incident by giving their contact information in a report. Others may be concerned with prIvacy issues. Is their reporting crossing the line by exposing individuals known by many employees by stating the time and location of the incident; a classification of who committed the violence; and the type of incident. Especially in small business with small workforce employees will look at the report, put “two and two together” based on the amount of information required by law and have a good idea who the perpetrator is.
A lack of reporting will cause an inaccurate assessment of violent incidents and perhaps lead an employer to conclude his workplace is safe from violence.
Some problematic areas of the law may be cleaned up when Cal/OSHA issues guidance documents and a model program. And when Cal/OSHA proposes by December 31, 2025 and the state standards board adopts no later than December 25, 2026 standards that will include the requirements of the law and any additional requirements deemed necessary.
For the next few years, though, employers will develop and adopt workplace violence prevention programs based on how they interpret the law. A variety of interpretations could lead Cal/OSHA to issue many citations for incomplete plans or plans based on faulty readings of the law.
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