Episode 241: Workplace Violence Prevention Standards: Correcting Misconceptions

Welcome to The Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello, listeners. Well, we are quickly approaching the 2-year anniversary of the effective date of California's general industry workplace violence prevention standards, and I think that makes it a real good time to check in and ensure that employers still have a strong understanding of what these ongoing legal requirements entail. Now, these standards have proven to be one of the more complex set of rules for employers in order to maintain compliance throughout the course of the year. And we're really here today to help employers stay on target and to share some of the early trends we are seeing in our interactions with employers as we're helping build their programs. So to discuss where we're at and what we are seeing, we welcome back CalChambers Employment Law Counsel Vanessa Green. Welcome back, Vanessa.

Thanks, Matt. Thanks for having me on here.

All right, now, Vanessa, we know you've taken the lead for Cal Chamber on assisting employers with developing their workplace violence prevention plans in accordance with this law. And so I really believe you're one of the best sources to discuss what the real-world situation looks like for employers. And the first thing that I think we notice is that employers may be underestimating the depth of this law. So can you provide a high-level overview of what the requirements are just to get us started?

Sure, so there's 3 main requirements. So first, employers have to have a plan, and it's a detailed written plan specific to their workplace violence hazards. They have to talk about mitigation of hazards, and there's other relevant procedures that go into the plan. And second, employers have to train employees on the details of their workplace violence prevention plan. So for example, on things like the employer's procedures for reporting and responding to workplace violence incidents, and then other information within their plan. And then third, they have to develop a specific protocol for responding to incidents, including investigation and completing a detailed log and doing some recordkeeping.

[Speaker] All right, so what you share there for me when we talk about the depth of this law really highlights that I think the first major hurdle for employers with compliance is that there's not a cookie-cutter approach to this, right?

That is correct. There is no cookie-cutter approach. This is really crucial to understand as this law focuses on specific circumstances of each employer's worksites, and it can even cover circumstances where there are differences between different areas of an employer's worksite or where employers have multiple worksites.

Okay, then. So let's drill down on kind of each of these parts of the law as you explain. And let's start with that plan. What are some common issues that you're finding with employers as you walk them through the development of their plan?

So I think one thing employers maybe are not understanding is how comprehensive these workplace violence prevention plans need to be. This, this isn't just a policy in an employee handbook like this is a comprehensive standalone plan, and there's 13 different detailed topics the plan has to cover. So for example, it needs to cover an employer's procedures for responding to workplace violence emergencies. How are employers going to alert employees in the event of an emergency, or evacuation procedures, or shelter-in-place plans, and things of that nature. It's also going to require employers to conduct an inspection of each worksite so that they can identify their workplace violence hazards and then explain if and how they're going to mitigate those hazards. And it requires employers to obtain their employee input and suggestions on identifying and evaluating and correcting workplace violence hazards and designing and implementing their training and reporting, investigating workplace violence incidents. So there is a lot involved here.

Yeah, I find that to be really interesting, especially about that employee input. A lot of us as employers go through creating plans and policies and, you know, not to be flippant, we just, we don't care what the employees have to say because we just need to design these plans in accordance with the law. So I find it really fascinating that the law itself says, no, go to your employees and get input for this plan. Now, because it's employee-specific in terms of that input, are there employers raising any questions with you about like multiple worksites or, you know, kind of how the plan construction works in that regard?

There are. So a common question I hear from employers with multiple worksites is them asking how can they build a compliant plan when they have these various locations that operate differently? And that's an understandable challenge because the law requires that the plan spell out specific things like how they're going to identify and correct their workplace violence hazards, and how employees should report incidents, threats, or concerns, but if you have several different work sites, then the answer to those questions can vary, right? And so the risks at one location might look different than those at another location, and the reporting process at one location might be different from another. So the bottom line is that you really need your plan to identify information particular to each of your work sites. And that might mean visiting every worksite location, looking at the specific hazards at each worksite, figuring out how you're going to address them, and then outlining all of those specific procedures for each worksite within your plan.

And that's very clearly a significant undertaking. But I think that also highlights the benefits of getting that employee input, right, Vanessa? We can rely on the employees who actually work at all these various sites to kind of help us form this worksite-specific plan, right?

Absolutely.

Okay. So, Vanessa, are you seeing any other kind of trending issues in plan development, this written plan that we have to have in place?

Yes. So another question I get from employers is they're asking what are their workplace violence-related obligations when their employees are working in either shared work environments with other employers or when their employees are going to perform work at other locations. So like, if employees go to customers' homes or they go to other businesses when they're working. And there's a few things that employers should be thinking about with these types of situations. So regarding shared work sites, employers really need to make sure that they're cooperating with the other employers at the work site, especially if there's any workplace violence hazards or incidents that arise. So for example, if there's a workplace violence incident involving both their employee and another company's employee, the employer should make sure and work with the other employer to investigate the incident properly, ensure that the incident log and documentation is completed, and really just work together to figure out how are we going to mitigate any future incidents going forward. And so best practice for employers in these situations is document your efforts to work with and cooperate with these other employers in these situations. Especially if you have the other employer who's being unresponsive or uncooperative. And then regarding employees who are like going to customers' homes or working at other locations outside of the employer's direct control, obviously the employer, they're not going to be able to go to each of those locations ahead of time and do some kind of inspection, right? Nor is there any requirement that they do this, but employers should, however, make sure that they're asking their employees for that feedback and input as to that work that they're doing at these offsite third-party locations. So, like you spoke to earlier, Matt, they really have to talk to their employees, get their employees' input. Do employees have concerns about these locations? Have they experienced any issues when they've been performing their job at these different locations? And then making sure we train employees to report issues right away. right? That way they'll let us know if there are any issues, we can quickly address them and make sure that we have a handle on those situations at those third-party locations.

Okay. So you did just actually mention training there at the very end, and I think it's a good point to move to training because that was really the second pillar of the basic tenets of this law. And I know we're hearing a lot of questions around the training component as well. So what's the first training issue you're seeing with employers and the training requirements?

So I get asked a lot by employers, how can we get this training done ASAP? Or we're behind on our training. Does Cal Chamber offer this training? Every time my response to that question is going to be, before we talk about training, have you created your workplace violence prevention plan? Because if the answer is no, then you need to do that first before you train your employees, because the training has to be based on your plan. Specific to your actual work sites and the job duties that your employees perform. So I think that's a misconception employers just don't understand. If they don't have a plan in place yet, they can't properly do the training because they don't have the content yet that they're supposed to train on. And I totally get that employers want to check the box on that training and get it done, but if you do the training before you've created your plan, you're really putting the cart before the horse, so to speak, and there's a high likelihood that your training isn't going to be compliant and that you're going to need to retrain once your plan is complete.

Yeah, and I think that's such a key point for me, Vanessa, because it highlights how different this mandatory workplace violence training is from another mandatory training that we're all familiar with, which is our harassment prevention training. You know, whereas harassment prevention training has the same rules and content requirements for all employers, this workplace violence prevention training is wholly dependent on each employer's unique plan. So in addition to that, are there any other, like, training questions that pop up for you when you're helping employers develop their plan?

Yes, there are. So the questions I get are employers really not knowing what the options are for training. So for example, who is qualified to conduct the training? Can they use a third party for the training? Can it be virtual or recorded, or does it have to be live and in person? So let's talk through these different questions. So first, yes, an individual may conduct the training. That could be somebody at your workplace, that could be a third party. They just have to be sufficiently familiar with your plan, enough to effectively discuss the plan and answer attendee questions. And then second, regarding the format, the format can be flexible. So you can conduct trainings in person, you could do a webinar format, you can do a computer on-demand course. The law doesn't specify a particular way. It's just that whatever format is used, employers need to make sure that the training is interactive and that employees have the ability to ask questions to whomever is responsible for overseeing the plan.

Okay. So I think that gives us a really good holistic view of the key sticking points for how we kind of develop the plan and get everything in place to help, again, mitigate against workplace violence. But of course, the law goes beyond just preparation, but also actually responding to incidents. And I think that's a little bit difficult for employers because you can just never plan for a workplace violence incident to be there. But you do have to plan to be ready to respond to the incident. So, Vanessa, can you really talk about what an employer should be ready to do if they have to respond to an incident?

Yeah. So when an employer receives a report or a threat of workplace violence, it's really important to take it seriously. An investigation is a key part of the response. Not only do we want to determine what happened, but we also really want to think about how do we mitigate recurring issues and then how do we reassure our employees that their health and safety is important to us. So after the workplace is secure and there's no longer an imminent threat, employers need to start the investigation process, right? We're going to need to interview the folks involved, get a complete report of the incident from any individuals who reported it and/or who witnessed it. And then employers also have to specifically document each workplace violence incident in what's called the Workplace Violence Incident Log. So this is going to include details of the incident. They're going to be identifying the type of violence that occurred, and they need to make sure and keep that documentation. Once the investigation is complete, the employer's job isn't done here. They need to review their entire workplace violence prevention plan and see if they need to make any updates to the plan consistent with the investigation results. So for example, was a hazard identified? Did they take steps to mitigate the hazard. If so, that needs to be updated in their plan, right? And then they're going to need to communicate those results to their employees by training them on any changes to the plan. I know this is a lot of information and things for employers to do to be compliant. We do have an upcoming webinar on this topic that's really going to focus on the real-world application of how we respond to workplace violence incidents that I think will be really beneficial for employers who have more questions about these requirements.

Okay, Vanessa, and I do want to go back to one thing and make something really clear here. So when you talk about conducting the investigation, then we've got the results in place. Now we need to go back and look at the plan. So if we see in our plan that maybe we didn't account for the specific hazard that arose that created the conditions for this workplace violence incident, that means we now need to identify that hazard in the plan and consider mitigating against that new hazard, right?

Right? Absolutely. That's correct.

Okay. Well, Vanessa, thank you so much for shining a light on some of these more hidden or misunderstood requirements with California's General Industry Workplace Violence Prevention Standards.

Always happy to join you, Matt. Thank you.

And thank you, listeners, for joining this discussion on the workplace. Please share and subscribe to Cal Chamber's podcast by visiting calchamber.com.