In part one of our three-part series on California's new workplace violence prevention law, Robert Rodriguez (shareholder, Sacramento) and Karen Tynan (shareholder, Sacramento) discuss the lessons employers have learned about workplace violence inspections during the law's first year of implementation. Karen and Robert, who are co-chairs of the firm's Workplace Violence Prevention Practice Group, explore how the enforcement of the new law, which took effect on July 1, 2024, is being managed and offer insights into Cal/OSHA's approach to these inspections. The discussion highlights practical tips for employers, the importance of customized training, and the role of the Bureau of Investigation in incidents of workplace violence.
Transcript
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. Today, we are talking lessons
learned in 2025 workplace violence inspections. This is an
important topic for California, as this is the first year that
we've had the new Workplace Violence Prevention law that came
into effect on July 1st, 2024. Since it's come into effect,
we've had an opportunity to see how Cal/OSHA is going to
enforce this, and what problems employers have been facing.
Well, thanks for joining me today, Karen.
Karen Tynan: I am excited to do this podcast, Robert. It's our first in 2025, and I think we're approaching a year with SB 553 being in place, and we do have some lessons learned. And, I think that means it's a great opportunity for California employers to come up to speed, make some adjustments, and continue to have vigorous workplace violence prevention practices in place, especially, and what we're talking about is general industry, so non-healthcare.
Robert Rodriguez: Right. And I think it's interesting what we've experienced, because SB 553 was a little bit different. It wasn't promulgated by Cal/OSHA; this was made by the legislature. So, there were a lot of questions, I think, circling around how is Cal/OSHA going to interpret these terms? How are they going to enforce it? Something that they didn't actually write.
Karen Tynan: Yes.
Robert Rodriguez: How are they going to approach this? So, in your experience, what have you seen in 2025 with workplace violence inspections through Cal/OSHA?
Karen Tynan: So, Robert, we're both based in Sacramento, but
cover the whole state. And, what we've seen is immediate
response. Workplace violence prevention is, and workplace violence
incidents, are a top priority. And so, with these inspections,
whether it's related to an attack with a hospitalization, or as
we've handled a couple of workplace murders. So, with those, we
are seeing aggressive inspectors who head out, and they're on
the scene immediately there, and we'll get to the documents and
interview tactics, but they're using their document requests,
their interviews, to really be aggressive. And I don't want
people to view aggressive in a negative way, it's simply a
matter that inspectors are prioritizing these inspections.
They're getting boots on the ground immediately, and
they're taking the actions to have a very complete and robust
inspection.
And I know, Robert, in July, we had a murder case we worked on
right after the law went into effect, and it pressure-tested our
expectations. And I like that word pressure-test because you see if
you've got any leakage, you see where maybe some faults are.
Did you think that what we thought, and maybe the plans that we
thought were going to be compliant, did that pressure testing give
you confidence, or what did you learn in it?
Robert Rodriguez: Yeah, that was definitely an interesting Cal/OSHA inspection. It happened essentially the first week of July, where the new law had just taken effect. And what we noticed was Cal/OSHA, like you said, was immediately on scene. They were coordinating with the local law enforcement. They were pushing for interviews immediately, and really trying to move the inspection forward as quickly as possible. And we've talked to folks, I think both you and I have talked to folks inside Cal/OSHA, and this is definitely a higher priority for them with just the uptick in workplace violence events in general. We're seeing more focus on it. And so, I think that is a great word, pressure-test. We were able to see that the client that we had worked with to help them prepare their plan was put under scrutiny for the first time-
Karen Tynan: Yes.
Robert Rodriguez: ... in July. And obviously, you're always going to have a little bit of, I don't want to say nerves, but maybe apprehension of, "Okay, well we spent a lot of time preparing this plan with no real guidance beyond the law, and is this going to hold up?" And luckily, in that inspection, we were found to have the plan be compliant and have all the required elements and all the training.
Karen Tynan: Yeah, I like those points. And, in thinking about, we're talking about investigations. One of the areas where inspectors always issue demands are document demands. And I was thinking about the kind of document requests we've seen related to workplace violence, and, obviously, they're asking for plans, the Workplace Violence Prevention Plan. What do you think of the kind of documents that we are seeing being requested immediately after an incident, and how those documents are going to be used in an investigation?
Robert Rodriguez: Well, first I want to note that even in non-workplace violence inspections, let's say a run-of-the-mill injury, or a complaint, or a program inspection, we are seeing Cal/OSHA ask for the Workplace Violence Prevention Plan and related documents. So, be aware that just because you don't have an event doesn't mean your plan is not going to be under scrutiny. So, making sure to have one.
Karen Tynan: I love that point.
Robert Rodriguez: Yeah. We want to make sure that we're
ready to go with those anytime we're going to have any
interaction with Cal/OSHA. Just like they request the IIPP in every
investigation, I think that's what I've been seeing a lot
is them requesting the Workplace Violence Plan. So, beyond that,
the records that we're seeing them focus on are obviously the
plan. You've got to have all the required elements. I've
seen a little bit of a hyper focus on the inspection records. So,
the ones where you're looking for workplace violence hazards,
you're noting them, and you're noting what you did to
address that. Whether it be a physical assessment of your work
sites, or if it's a physical assessment of the type of work
you're doing. But they're really looking for that work
site, work operations-specific inspection records.
And I think it's interesting because one of the biggest
questions we got, and I don't know if you remember, Karen, was
we have 20 sites across California, they're all different. Can
we just have one plan, and one inspection process, and build out
from there? And what was your advice around that issue?
Karen Tynan: Right. I think that was a top question. My advice was, "Well, if you have very similar locations, like you have 20 locations in the same type of strip malls and there's really no difference, you might be able to use an inspection at a couple of the strip mall locations to build out your hazard assessment. But when you have locations in different areas, with different hazards, whether it might be that you have unhoused or homeless people having interactions at your gate, or you may be in a higher crime area. Or, maybe you have manufacturing facilities that some have only your employees and others may have vendors on site, or might have temp workers on site who could bring interactions that are different for your employees." And so, I like to be very careful with painting the hazard assessment with a broad brush, instead of taking a more micro view. And I think we agree about that, right?
Robert Rodriguez: Yeah, because every work site is different, every operation is different. You're going to have different hazards associated with it. So, we are seeing Cal/OSHA look for a lot of customization in that regard.
Karen Tynan: Yes.
Robert Rodriguez: Now, another aspect that we're seeing Cal/OSHA focus on are the training records. And in my experience, I've seen a request for not only the training records themselves, but the materials.
Karen Tynan: Yes.
Robert Rodriguez: Yeah, have you seen that?
Karen Tynan: Yes. Asking for the PowerPoint, or the training materials, the question and answers, questions that are submitted. Asking for employee suggestions related to your Workplace Violence Prevention Plan. So, it is a broader ask than you see sometimes where inspectors will say, "Hey, I want all your training records about the metal producer 3000X in the south end of your facility." It is a broader request, and so I like for California employers to think about that broader request and what all those materials and records would look like, and how do you feel when you look at the materials? Are they robust, are you proud of the materials, Do you think the materials are compliant?
Robert Rodriguez: Yeah. And I think another question for California employers to ask is, "When I look at my Workplace Violence Plan and the materials that are associated with it, am I just checking the box here, or have we really done an assessment-
Karen Tynan: I agree.
Robert Rodriguez: ... and tried to implement effective procedures to combat workplace violence?"
Karen Tynan: You said it.
Robert Rodriguez: All right, we've talked a little bit about documents. Let's move on to other information gathering in these inspections. Have you seen any trends or anything interesting to note during employee interviews in workplace violence inspections?
Karen Tynan: Sure, Robert. I have seen a lot of very specific
questions, where inspectors are asking the hourly workers, the
non-management workers, questions about the training they've
received, questions about particular hazards. Do you walk to your
car in the dark? Do you feel safe at work? Do you feel like the
entrances are guarded? And so, in these employee interviews, I do
think the inspectors are looking to see if the plan has been
effectively implemented. Can these employees regurgitate the
concepts in your plan? Can they talk about how they're going to
make a complaint? Can they explain what they would do if they
believed they had suffered workplace violence? Can employees answer
questions about how investigations work? Can employees answer
questions about where the violent incident log is? That kind of
depth of question, I think, is very important.
It's similar to heat illness investigations, where the
inspectors will ask employees, "What do you know about
acclimatization? What are the symptoms of heat illness? How do you
recognize heat stroke in your coworker?" They really dig down,
and that's what I'm seeing in employee interviews related
to workplace violence investigations. And I think it's
important for California employers, managers, risk managers, HR
professionals, safety professionals, to think about how your
employees would stand up in an interview.
Robert Rodriguez: Those are all great points, and I've seen
the exact same thing in employee interviews. And one extra point to
add, I have seen a lot of questions around the three different
topics that are required for emergency situations. So, we've
seen a lot of questions about, "Has the employer told you how
they're going to alert you during this? Is it a Slack message?
Is it going to be via your telephone? Is it going to be via
Bullhorn?" Asking very specific questions about how
they're going to be alerted to these workplace violence
emergencies.
I've also had some questions about, "Did you receive run,
hide, fight training?" Which is interesting because the law
doesn't actually explicitly require that, I am seeing a number
of employers I'm working with implement some sort of run, hide,
fight, just because it is such a tenet of workplace violence. Would
you agree with that?
Karen Tynan: I would. And, they're using either consultants, maybe prepackaged materials, to at least have 15 to 20 minutes of, I would almost call it a sub-subject of run, hide, fight to understand if you do have an intruder or a person with a weapon. It's not just a gun, but anyone with a weapon who may be attempting to carry out threats and violence in the workplace. And while not specifically called out in the California regulation, we do see that level of specificity either in other states, or in what's being contemplated in legislation. And so, it's not unreasonable for inspectors to ask if employees have received that training as part of a robust Workplace Violence Prevention Plan.
Robert Rodriguez: And then one final question that we've seen being asked is for those folks who utilize security guards, whether that be retail, or if it's an office building, the employees are being questioned, "When do you call Security? How do you know when to call Security? How do you get a hold of them? What does Security do if you call them?" So, getting a lot of questions around what you're supposed to do in that situation. So, it's a good practice pointer to make sure that you're, if you are utilizing security guards, to make sure that you have a well-defined process of what they're there to do, what they aren't there to do, and how your employees can leverage that Security presence.
Karen Tynan: I agree with that. And then, when we're talking about these investigations, are you seeing these investigations as high priority, any special treatment, anything like that at this stage in 2025, when we're approaching a year under the new law?
Robert Rodriguez: I am seeing some prioritizing of these types of inspections from Cal/OSHA. The one murder investigation that you and I both worked on in July, if you recall, it was a pretty quick timeline. Obviously, the tragic murder took place in the first week of July. They really gas-peddled the inspection process, wanting to do interviews right away, wanting to visit the scene right away, wanting documents right away. And generally, what I've seen in my practice is, a lot of times Cal/OSHA could be backlogged. And so, they'll take the six months they have from the date of incident to issue citations, and they'll bump right up against that statute of limitations. I think this one closed out in the three-month time period. And fortunately, the client we worked with had done a fantastic job with their program, and no citations were issued in that one. But I was a little bit surprised at the length of the inspection. It was done very, very quickly, and not dragged out.
Karen Tynan: I see that it is definitely a priority, much like any serious accident or fatality, but almost more so than let's say a regular fatality. I think it does get that priority within each individual district office. And, when we talk to inspectors or district managers, they express to us, "Hey, these are high priority investigations cases," and I do foresee that these types of incidents may get preferential review by Legal, and also maybe even press releases. We're only a year in, but certainly Cal/OSHA uses the opportunity for press releases when they can educate the public about what they're doing. And, I think there's a desire to have press releases with these cases.
Robert Rodriguez: Definitely agree with all that, and that's what I've seen, and the information I've gotten from folks within Cal/OSHA, as well. One thing I do want to note is I feel like we can't talk about, especially when we're bringing up murders, we can't talk about that without talking about the Bureau of Investigation.
Karen Tynan: Good point.
Robert Rodriguez: Do you want to maybe give us a little bit of an update on the Bureau of Investigation, what it is, and what we've seen?
Karen Tynan: Yeah. In 2025, it's a whole new world, Robert.
And, BOI now has many new inspectors, Bureau of Investigation, and
that is the separate department within Cal/OSHA that makes the
criminal referrals. And they're going to get called out and get
that investigation started in any fatality. And, when BOI is
involved, it's a bit like a supercharger I'd say, on any
investigation and on the situation. And for you and I, when
we're talking to California employers that are facing BOI, I
know that we're very cautious. There are times when we take a
look at criminal liability, we're contemplating it for
Managers, C-suite folks. And BOI is not a department to be
underestimated. I think sometimes employers think, "Well, if
someone was killed at work, it's certainly not anything we
would've intended to have happen, it can be a criminal
activity."
And so, the idea that you could be facing criminal charges because
someone acted criminally, it seems a little counterintuitive, but
it is a big consideration, it is an important consideration. And
when you have a fatality at work that's part of workplace
violence, I think understanding and having the conversations around
a BOI investigation has to happen immediately.
Robert Rodriguez: No, I agree. And so, you want to make sure that you're having your tight safety programs, you're having a tight Workplace Violence Prevention Plan, so that in the God-awful event that something tragic in your workplace happens, you are in a good position to defend yourself from potential criminal liability.
Karen Tynan: Right, that you've done everything, you've followed the law. I think that is incredibly important. And I like that you asked about BOI as an aspect of these workplace violence inspections. Now, so we're almost a year into the new law. If you are going to give, let's say California employers, some best practices and just based on our experiences this first year, what are those best practices you're thinking about, and then maybe I'll add a couple on?
Robert Rodriguez: Sounds great. I would say number one, the most important part of any safety initiative, workplace violence included, is training.
Karen Tynan: Yes.
Robert Rodriguez: You've got to make sure that where the rubber meets the road, your folks are trained. And we've seen this a lot prior to this law where you've got a dusty safety manual that nobody's looked at in years, and folks haven't been trained. Cal/OSHA is looking for specific work site training. For example, in retail-specific inspections they're going to ask, "What are you supposed to do when there's a shoplifter? What are you supposed to do when a customer becomes aggressive?" So you want to make sure that you are providing not this generic training, but a real specific work site, work practice, specific training where your folks will know what to do in the event of an emergency, or in the event of a workplace violence risk.
Karen Tynan: Totally agree. And you remember when this law was passed, we had so many folks saying, "Hey. This company has some generic training, can I buy this off-the-shelf stuff?" And, I felt like we were a little bit like negative Nancy when we kept, we were saying, "Gosh, we reviewed this video and training packet and it's just not compliant because it has to be so customized."
Robert Rodriguez: Right.
Karen Tynan: And that was certainly disappointing. And I also think for California employers, here's my last bit of best practices. Make sure someone that's highly skilled, trusted, and competent is doing your record keeping. When an incident happens, or when you have an inspection and you need to "prove up your training, your violent incident is going to be looked at," we want it to be tight. And so, making sure you've got that trusted person. Maybe it's the same person that keeps your OSHA 300 log, I don't know, but it has to be that person that you really trust.
Robert Rodriguez: And I'll close this out with two other short but very important points. Remember that the plan has to be reviewed at least annually.
Karen Tynan: Yes.
Robert Rodriguez: So, we're going to be coming up on this July 1st, 2024 deadline, or 2025, excuse me, where it's been a year. And, we want to make sure that employers are having this on their radar that, "I got to review the plan, do any changes have to be made, anything that has to be revised or edited." And then number two, the annual training, as well.
Karen Tynan: Yes.
Robert Rodriguez: We want to make sure that the training has to be given annually. And so that that's on your radar as well, that from when you got your plan up and running, you have a year to do that annual training.
Karen Tynan: Totally agree. So, I'll say thanks for listening to Robert and Karen today. Look for our blog articles on Ogletree.com, check out our practice page, the Workplace Violence Prevention Practice Group, and also look for our webinars. We appreciate you listening, and stay safe out there.
Robert Rodriguez: Thanks so much, everybody, and thanks Karen.
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