California's Workplace Violence Law, Part III: SB 553—From Legislation To Implementation (Podcast)

In this podcast, Sacramento shareholders and co-chairs of the Workplace Violence Prevention Practice Group, Karen Tynan and Robert Rodriguez, discuss the significant changes brought by SB 553, California's Workplace Violence Prevention Plan Law, and the implications of its draft regulations. They review specific requirements of the draft regulations and how those requirements may lead to increased costs and overlap with existing requirements such as those in the workers' compensation system. Robert and Karen emphasize the importance that California employers stay informed and prepare for these regulatory changes.

Transcript

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Announcer: Welcome to the Ogletree Deakins Podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Robert Rodriguez: Hello, everyone, and thank you for joining us for the Ogletree Deakins Podcast. My name is Robert Rodriguez, and I'm a shareholder in the Sacramento, California office, and Co-Chair of the Workplace Violence Prevention Practice Group. Here with me today is our Co-Chair in that practice group, Karen Tynan, also a Sacramento shareholder. We are talking changes to the workplace violence prevention plan and draft updated regulation. This is an important topic for California employers. So, can you tell us a little bit about SB 553 and the Cal/OSHA draft regulations, Karen?

Karen Tynan: Sure. So, here we are, kind of spring 2025, and SB 553 is in the Labor Code, and Cal/OSHA regulations are in Title 8 California Code of Regulations. And so, part of SB 553 was the demand, the requirement that Cal/OSHA draft these Title 8 regulations. And so, as recently as January 2025, there was an advisory group convened, big all-day meeting with Cal/OSHA attorneys, Cal/OSHA inspectors, employer representatives, all kind of folks, folks from the defense bar like me, you, Kevin, and those folks at the meeting providing input for the updated regulations to be implemented, maybe end of '25, early 2026. Not quite sure, but the important part for California employers to know is that the requirements under SB 553 will change with the California regulations when they are adopted, Robert.

Robert Rodriguez: And can we talk broadly about what those changes are going to be? What are some of the big policy or big ways in which a future regulation looks different than SB 553?

Karen Tynan: So, Robert, you remember when we were tracking this bill, and it started out broader, and it had requirements for mental health counseling, and it had a lot of specificity in SB 553, and quite a bit of that got cut away. And now it's magically reappeared in the draft regulation. Do you agree with that?

Robert Rodriguez: Yeah, I definitely agree with that. It felt like, from my perspective, a lot of the original bill was basically the workplace violence prevention regulation applicable to healthcare kind of cut and pasted. And then it was distilled down, it seemed like maybe there was some give-and-take, a backroom view.

Karen Tynan: Some horse trading in Sacramento.

Robert Rodriguez: Yeah, where it got a lot less specific as it went on.

Karen Tynan: I think so. And then, so Cal/OSHA's draft regulation for general industry, which had been kind of moving along, and then COVID happened, and nothing happened with the general industry standard, right? We've had the healthcare standard for years and years and years, but now the general industry standard is there, in draft form, and... Or one aspect of this draft regulation that I'm really concerned about in broad terms, Robert, is specificity. This regulation takes a lot of the flexibility out of the employer's hazard evaluation and their workplace violence prevention plan, and instead substitutes in incredibly specific regulations that whether it's the work practice controls or the administrative controls or the investigations. And the specificity, I don't really like it, Robert, to tell you the truth.

Robert Rodriguez: What do you think is going to be the most impactful about these changes?

Karen Tynan: I think with specificity, the requirements for work practice controls, let's talk about those first. So prior, let's talk under SB 553, the employer did a hazard assessment, and maybe that employer said, "You know what? We are going to have some visitor entry badging and some controls with a camera and a button and all this." Okay, that's what the employer evaluated and decided. Now in the draft regulation, you have work practice controls defined, that includes appropriate staffing levels, provision of dedicated security personnel, and effective means to alert employees, control of visitor entry. Just a lot of very specific controls under, let's say, work practice controls. And I'm concerned that an inspector is going to go down this list, and if you don't have one of these, even if it wasn't a fit for your business, it's going to be a citation.

Robert Rodriguez: So, it sounds like to me what you're thinking is, whereas SB 553 was kind of more like the IIPP regulation, where it gave a lot of flexibility for employers to kind of do their own analysis, but now you've got this laundry list of "examples," and you're saying they're more than just really suggestions.

Karen Tynan: Yes, and so if you look at engineering controls, which are defined, and it includes let's say engineering controls like enclosed workstations with shatter resistant glass, deep service counters, spaces configured to optimize employee access to exits, escape routes and alarms, and opaque glass or lighting for dark areas, things like that. It's so specific, I do think it's a laundry list where the inspector is going to check the box. And the citations might be worded, "Oh, employer failed to have video monitoring despite the fact that engineering controls were alleged to have been integrated into the workplace violence prevention plan." And when we were talking about this, Robert, you mentioned some of these engineering controls or administrative controls are not without some pretty heavy cost or use of resources that might not be what's needed in a workplace.

Robert Rodriguez: Right, and for example, I was looking at the deep service counters. If you're going to have these, let's say, at a retail store, and you have 50 locations up and down California, we're talking about significant capital expenditures for these renovations. And are they worth it? I mean, how is that cost-benefit analysis going to work?

Karen Tynan: Right. Do you need these deep counters, or is there something else you would do that was even more effective? I don't like this kind of specificity because it takes away the employer's own analysis and ability to analyze their workplace, where they are the most familiar, and they're the most familiar with the ways to meet the workplace violence hazard. So, when I look at the regulation, and I see the way these definitions for engineering controls and work practice controls kind of play out, I think that is something for California employers to really watch in the final version of the regulations, Robert.

Robert Rodriguez: And one thing that gives me pause about these specific examples are, in my experience, especially with the workplace violence law coming into effect, Cal/OSHA has kind of taken the stance of almost, hindsight is 20/20.

Karen Tynan: I agree.

Robert Rodriguez: Second-guessing. And so, it makes me a little bit cautious for employers where you already have that stance of Cal/OSHA coming in saying, "You should have done this, you should have done that." And then now that potentially with this draft regulation, if it's passed and adopted, now they're going to have backup to say, "Well, see. You should have had these." This hindsight is 20/20, so it makes me a little bit nervous for employers.

Karen Tynan: I could see an inspector as part of their interviewing of employees saying, "Well, did you have opaque glass that could have prevented someone from seeing you? Did you have, let's say, control of visitor entry to these particular areas?" And these interviews, notes showing, oh, well, the employee said they didn't have this or that this was lacking in the workplace. And so, I think the work practice controls and engineering controls provide a bit of a roadmap to the minefield that is out there for employers.

Robert Rodriguez: Agreed, agreed. So, with all these changes, what are your thoughts on whether or not training requirements or training materials will have to change?

Karen Tynan: So, the training requirements that the language doesn't change, but what I think, Robert, is when you're adding these work practice controls and engineering controls and changes to the investigation process, that's going to be fleshed out in your training programs and your training materials. So, those updates will have to happen, although the framework of training is not changing. Do you kind of agree with my conclusion on that?

Robert Rodriguez: Yeah, no, I agree. I think with the expansion potential, maybe engineering controls or work practice controls or whatever employers have to put in to meet these requirements, I mean, that inevitably is going to make the training more robust and longer. And that's another, I think, it makes me nervous for California.

Karen Tynan: I definitely agree. And then with the specificity in the draft regulation as we sit, spring 2025, the specificity around investigations is giving me heartburn, Robert, a lot of heartburn. The regulation, instead of indicating like SB 553, is that you're going to have an investigation process. An investigation process may be different for a big retailer compared to someone who sends employees out to do HVAC at homes, right? Very different. But the post-incident response and investigation draft regulation has incredibly detailed, specific and robust requirements that I frankly think aren't a fit for everybody.

Robert Rodriguez: And are you seeing any changes in the draft regulation regarding investigations or post-incident response?

Karen Tynan: Yes, Robert, and one part that I don't like is these requirements about individual trauma counseling and the parts where it says, "Oh, you have to have medical care for employees." Well, we know the Workers' Compensation system requires that, right? Injured employees, whether it's physical or mental, receive medical treatment. And so, this seems to me to be an overlap or a kind of overtaking of the workers' comp system, where someone would fill out a DWC-1 and receive medical treatment or receive counseling as they need. But this regulation about medical care, counseling, all that, just seems to kind of fly in the face of what is already established. So, I don't really like that when regulations butt up against already in place regulations.

Robert Rodriguez: Yeah, already existing employer duties, right? Yeah.

Karen Tynan: Exactly. And so, are people going to get confused and say, "Well, I might not have to fill out a DWC-1 if I'm going to arrange trauma counseling for an employee affected by a workplace violence incident." And instead of filling out the DWC-1, they say, "Oh, we're going to pay for four or five counseling sessions." Well, then they violated workers' compensation laws that say when you know an employee has an injury, you have to offer them a DWC-1.

Robert Rodriguez: Exactly, and in terms of the trauma counseling, what does the regulation specifically say about that? And how is that different from SB 553?

Karen Tynan: Well, SB 553 doesn't have a specific requirement for employers to provide trauma counseling, but the draft regulation, as we sit today, says that as part of post-incident response, the employers with more than 25 employees must make available individual trauma counseling to employees affected by the incident. Okay, so let's break that down. Employers with more than 25 employees, does that mean more than 25 employees in the state? More than 25 employees across the country? More than 25 employees at the location? I don't know, I can't tell. But making available individual trauma counseling to employees affected by the incident, A-F-F-E-C-T-E-D, I always get confused with affect and effect, but

Robert Rodriguez: So, impacted by the incident. Yeah, all right.

Karen Tynan: Yes, let's say impacted by the incident. Well, let's think of an example, Robert. So, someone makes a threat against a coworker, and another coworker overhears it. Do you think that coworker that overhears a threat is affected by the incident? Do we have to offer them counseling?

Robert Rodriguez: And I think there's probably arguments both ways, right?

Karen Tynan: Right.

Robert Rodriguez: Whether or not they're impacted by the incident. And think one thing is, well, how quickly do you need to make this trauma counseling available? For example, you and I worked on a workplace murder a couple of years ago, which was a very traumatic murder where somebody was murdered-

Karen Tynan: Absolutely.

Robert Rodriguez: ... in the work site, stabbed to death, multiple employees saw it, and the employer immediately got a trauma counselor out there to talk to the folks. And so again, that was them analyzing the situation and saying, "We need to do it here." But what happens if Karen and I are just having a workplace disagreement that may not even be workplace violence? And then somebody overhears that and goes to HR and says, "Hey, I saw Robert and Karen arguing, I think I'm impacted by this. I want trauma counseling." How do we handle that?

Karen Tynan: Right, and if they're making this demand under the regulation, it would be hard to say to an employee, "Well, I don't think you're affected." Right? "I don't think you're entitled to this," because when you say that to the employee, there's a 1-800 number they can call at the Cal/OSHA district office. There's an email address that they can call and say, "I was a witness to workplace violence, and I did not get the individual trauma counseling that I was entitled to." And so, I think that this hyper specificity is really unnecessary, and I'm not feeling that employers need to be told to do this. So many employers have employee assistance programs, right? You have workers' compensation for every kind of injury you've ever even thought of, and plus, healthcare benefits. So, I don't really see that adding these post-incident response details is really necessary or frankly, going to be that effective for employees. So, that is giving me quite a bit of heartburn, even compared to some of the other post-incident requirements that also give me heartburn, Robert.

Robert Rodriguez: Agree, 100%. And in terms of post-incident, is there any additional proposed requirements around debriefing?

Karen Tynan: Right, so if you look at SB 553, yes, you have to have a post-incident investigation. That's what it says. But here specifically under the draft regulation, for each workplace violence incident, there has to be a written investigation report, and there are three elements that have to be included. A description of how the employer complied with a whole bunch of subsections, all the information received or produced about the incidents, and the results of the investigation and recommendations from the investigation. And that is incredibly broad, and also, I think that it is maybe more burdensome than what would be needed in let's say a run-of-the-mill incident where maybe there's employee threats between two people. Do you have to do this kind of platinum-level investigation when two people get in a tussle at the taco truck at lunch, and there's a dust-up?

Robert Rodriguez: Real-world example?

Karen Tynan: Yes. As you and I say, we have some clients that with their workers who say the dust-up at the taco truck is kind of a Tuesday, right?

Robert Rodriguez: It's a prelude to happy hour that night.

Karen Tynan: Exactly, and a lot can depend on your work environment. And so, for me, with the investigations with these specific and broad and deep requirements, I'd have a hard time not doing one of these investigations as a privileged one, because of all the required subjects, Robert. And I would not want an investigation into a bigger incident that had all of this information required to start out non-privileged. It's okay if I want to waive the privilege later when we have results, but do you feel the same as I do just about the privileged aspect, Robert?

Robert Rodriguez: I do, and we talk about this a lot. Not every kind of safety investigation, putting aside workplace violence, has to be privileged. If there's a slip and fall or minor injury at work due to machine, I mean, not everything has to be privileged. I do think when you're working or moving into the workplace violence space, the stakes are a little bit higher. This is higher priority on Cal/OSHA's radar. If there's a murder, we have a potential bureau of investigation, criminal investigation. So, I do think that, I agree with you that starting off with, we're going to do a privileged investigation and we can always waive it, no harm, no foul at that point.

Karen Tynan: For sure. And I think about in a retail establishment where you have customers, and let's say there was an incident with a third party, a customer, a vendor, a contractor. Well, you can be facing civil liability there, too. And so, I wouldn't want to do some giant investigation that's not privileged when you're not just facing a Cal/OSHA investigation, but also civil liability, police investigations, all of that. So, that's my kind of 30,000-foot view of the investigation requirements in the current draft, and my overarching concerns about them, Robert.

Robert Rodriguez: Well, thank you for sharing those with us. And I think we touched on this a little bit earlier, but in what ways, if any, will the new regulations change Cal/OSHA's enforcement of the workplace violence law?

Karen Tynan: I see that there will be more tools in the inspector's toolbox, Robert. I think that with the specificity in controls, the specificity in the investigations, that the inspectors will have a little bit more of a hammer in the investigation process that they have, and that they will be able to use the employer's own plan and investigations and hazard assessments against the employer more broadly.

Robert Rodriguez: All great points. So, in closing, can you talk about best practices related to these changes?

Karen Tynan: First and foremost, it is critical for California employers to monitor this draft regulation, and to see when it's going to come into effect. So, the final regulation will be published, there'll be a certain number of days, OAL, the Office of Administrative Law has to approve it. Just some wheels within the state have to turn, and I know you understand that as a former state employee many years ago. And so, there are mechanisms. But considering all that, employers should be part of their trade groups, part of professional organizations monitoring this draft regulation, and making sure they understand the changes that are coming and that they can respond to the final regulation and be ready to implement the changes.
So, I think it's two parts. Number one, I want employers involved with the California Chamber of Commerce, with their trade groups, to voice their opinions around the regulation because I guarantee you, labor is at the table, right? Labor is always at the table with these regulations. And then the second part is being ready to respond, implement, and adjust based on the new regulations.

Robert Rodriguez: All great thoughts and perspectives, and thanks for sharing that. And to our audience, thanks for listening to Karen and Robert today. Look for our blog articles on ogletree.com. Check out our practice page, the Workplace Violence Prevention Practice Group on that same website, and also look for future webinars. Thanks for listening, and stay safe out there.

Karen Tynan: Thanks, everyone.

Announcer: Thank you for joining us on the Ogletree Deakins Podcast. You can subscribe to our podcasts on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only, and is not to be construed as legal advice.