Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
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On September 30, 2023, California enacted the first general industry workplace violence prevention safety requirements in the United States that will be applicable to nearly all California employers, with very few exceptions. SB 428 and SB 553 also amend California Code of Civil Procedure section 527.8, which provides the ability to seek restraining orders to prevent workplace violence.
Workplace Violence Prevention Safety Requirements
Covered employers must develop and implement a workplace violence prevention plan (as part of their Injury and Illness Prevention Plans) that meets the requirements of the new Labor Code Section 6401.9 by the law’s July 1, 2024 effective date.
The substantive requirements are very similar to the workplace violence prevention standard that Cal/OSHA adopted in October 2016 (effective in April 2017) applicable exclusively to employers in the healthcare industry, which also was the first of its kind in the nation. Federal OSHA is currently pursuing steps for adopting a similar standard for healthcare and social assistance industries nationally. The new California law is the first to apply such requirements more broadly to include nearly all California employers.
What Does the New Law Require?
Covered employers1 must establish, implement, and maintain an effective workplace violence prevention plan. Requirements for such a plan include:
- Designating persons responsible for the plan.
- Effective procedures to obtain the active involvement of employees and authorized employee representatives in developing and implementing the plan.
- Methods the employer will use to coordinate the plan with employers, when applicable.
- Effective procedures for the employer to accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who makes such a report.
- Effective procedures to communicate with employees regarding workplace violence, including how to report a violent incident, threat or other workplace violence concern; effective means to alert employees to the presence of a workplace violence emergency; and how to obtain help from staff assigned to respond and/or law enforcement.
- Procedures to identify and evaluate workplace violence hazards, including scheduled periodic inspections, and to correct any identified hazards.
- Procedures for post-incident response and investigation.
- Procedures to review and revise the plan as needed, including with the active involvement of employees and authorized employee representatives.
- Initial training about the plan when first established and annual training.
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.
- Records of workplace violence incident investigation.
These records must be maintained for at least five years and produced to Cal/OSHA upon request.2
Who Makes Workplace Safety Regulations – Cal/OSHA or the Legislature?
The introduction, legislative development, and ultimate enactment of the bill leading to the new law, illustrates a rare example of the legislature stepping in to implement requirements directly that otherwise had been the subject of ongoing development with stakeholders through the Cal/OSHA regulatory process. Given this use of the legislative process, employers should monitor other subjects of potential safety regulation.
By contrast, in September 2014, California enacted a bill, SB1299, which required Cal/OSHA to promulgate standards mandating hospitals to adopt a workplace violence plan as part of the employer’s Injury and Illness Prevention Plan. Cal/OSHA then followed its required rulemaking process, including substantial participation of relevant industry stakeholders on all sides, and preparation of a required Standard Regulatory Impact Analysis (SRIA). It was in this manner that Cal/OSHA developed the substantive regulatory requirements for healthcare settings that it approved in October 2016, and which became law in April 2017.
SB 553 reflects a different sequence. It directly creates the substantive requirements, rather than directing Cal/OSHA to develop them. It then includes a provision directing Cal/OSHA to implement a regulation corresponding to the requirements already in force, to be adopted no later than December 31, 2026. The sponsor of SB 553, Senator Dave Cortese, explained that he was motivated by perceived frustrations that the Cal/OSHA process was simply taking too long, particularly after a 2021 mass shooting at a workplace in his district received national attention. Cal/OSHA began working on a general industry workplace violence prevention standard shortly after adopting the healthcare standard, resulting in successive rounds of significant progress before the COVID-19 pandemic resulted in an unprecedented commitment of the agency’s rulemaking (and other) resources to COVID-19 response.
A consequence of this unusual sequence that has yet to play out is how the agency will meet various requirements applicable to meeting its December 31, 2026 deadline, including how the SRIA will be prepared, given that the legislature has already established a substantive outcome for the regulatory requirements. A major purpose of the SRIA requirements under California’s Administrative Procedure Act is to ensure that proposed regulations are subjected to rigorous evaluation in regard to their potential impact on a regulated employer community, as balanced against the actual enhancement of workplace safety that is the agency’s mission. This issue will be among those for employers to continue to watch. Workplace violence prevention is not the only issue for which Cal/OSHA has been attempting to develop standards during the past few years. Similar calls for more immediate kinds of action have been expressed regarding other subject of potential regulation. This may develop into a larger concern for California employers, should it arise in other regulatory subject areas.
Amendments To CCP Section 527.8 – Workplace Violence Restraining Orders
Under existing 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. Effective January 1, 2025, four substantive changes to California Code of Civil Procedure section 527.8 will take effect.3
Currently, an employer is authorized to seek a restraining order to protect an employee only if the employee has suffered a “credible threat of violence.” As of January 1, 2025, the law will be expanded to permit a restraining order to be sought if an employee has suffered harassment, which in the past was only something the “harassed” individual could pursue on their own. “Harassment” for this purpose means “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” The course of conduct must also “be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”
An additional change is that while currently 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 expanded to allow 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.
The third restraining order change the new law makes is that it refers to two specific laws that a court may take into account 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 section 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 final change the new law brings is that anyone seeking a restraining order must first provide the employee for whom the restraining order is sought the ability to not be named. If an employee declines to be named, the law expressly provides that an employer or collective bargaining representative may still seek a restraining order on behalf of other employees.
Employers with operations in California should consult their labor and employment attorney regarding preparation for compliance with SB 553, including preparing their workplace violence policy, on or before the law’s July 1, 2024 effective date. Littler will continue to monitor safety regulatory rulemaking developments affecting California employers.
See Footnotes
1 The new law contains a few limited exceptions. It does not apply to employers already covered by California’s existing workplace violence prevention standard for healthcare, employees teleworking from a location of their own choice that is not under the employer’s control, places of employment where there are fewer than 10 employees working at the place at any given time and that are not accessible to the public, and a few other small exceptions (mostly in the public sector).
2 Throughout most of the legislative session, SB 553 contained a provision that would have required also producing all of these records to employees or their representatives within 15 calendar days of a request, but a last-minute amendment exempted the investigation reports from this requirement.
3 3 Both SB 553 and SB 428 were amended in the final stage of the legislative process to provide these changes. Due to timing of signatures on the two bills, SB 428, the bill sponsored by Senator Catherine Blakespear that had first proposed making TROs available for harassment, became the operative measure.
3 Both SB 553 and SB 428 were amended in the final stage of the legislative process to provide these changes. Due to timing of signatures on the two bills, SB 428, the bill sponsored by Senator Catherine Blakespear that had first proposed making TROs available for harassment, became the operative measure.
