Navigating California’s Workplace Violence Prevention Requirements and the New Rebuttable Presumption for Workplace Retaliation

By July 1, 2024, virtually all California employers will be required to establish a comprehensive Workplace Violence Prevention Plan (“WVPP”) in accordance with SB 553 and California Labor Code Section 6401.9. This plan is aimed at identifying and rectifying workplace hazards and will operate alongside employers’ existing Injury, Illness & Prevention Programs. California employers will have the flexibility to integrate the plan within their existing programs or maintain it as a separate document.

Under Labor Code 6401.9, “workplace violence” encompasses any violence or threat occurring in a place of employment.  This includes physical force against an employee leading to injury, psychological trauma, or stress. The law outlines four specific types of workplace violence: (1) violence by unauthorized individuals; (2) violence by customers or visitors; (3) violence by present or former employees or managers; and (4) violence by individuals with personal relationships to employees. Employers are required to report any serious employee injuries, illnesses, or deaths resulting from workplace violence to the California Division of Occupational Safety and Health.

The WVPP must be easily accessible to every employee and include crucial elements such as delineating roles and responsibilities to certain individuals for plan implementation, engaging employees in the process of creating the WVPP, establishing protocols for reporting and addressing violence, fostering open communication, and crafting emergency response strategies.  Additionally, employers must provide an initial training after plan implementation and an annual training on reporting hazards and incidents thereafter, as well as maintaining an ongoing Violent Incident Log and training records.

Although SB 553 lacks precise requirements for creating and implementing a WVPP, employers are tasked with formulating a plan tailored to the specific hazards present in their workplace. Employers with multi-employer facilities must devise plans that are specific to each facility, conduct regular site inspections, involve employees in the planning, and establish robust support mechanisms for employees in the aftermath of violent incidents. It is important to note that SB 553 and section 6401.9 do not apply to health care employers, remote employees who work at a place not under the control of the employer, and workplaces inaccessible to the public with fewer than 10 employees working on location at any given time. California employers that fail to comply with the requirements of this new law could face a penalty of up to $25,000 for “serious” violations, and $158,727 for “willful” violations.

As employers draft and implement their WVPPs, it is crucial to be aware of California’s recent enactment of SB 497, which creates a rebuttable presumption of retaliation for employees facing discipline or termination within 90 days of engaging in a protected activity. This presumption simplifies the process for employees to establish a prima facie case of retaliation, shifting the burden to the employer to provide a legitimate, nonretaliatory explanation for alleged retaliation under SB 497. Should the employer successfully do so, the burden then returns to the employee to demonstrate that, despite the non-retaliatory justification, the discipline was still retaliatory in nature. This means that, as employers draft and implement their WVPPs, they should be aware that SB 497 aligns with the broader goal of workplace safety and empowers employees to raise safety-related concerns without fear of reprisal.

With the July 1, 2024 deadline approaching, California employers should begin to take proactive steps to ensure compliance with Workplace Violence Prevention Plan requirements. If you have any questions or seek assistance in creating a WVPP, please contact one of Honigman’s Labor and Employment attorneys here.