The Impact of the New Workplace Violence Prevention Plan and Training Requirements on Public Employers and Private Employers with Unionized Employees

12.15.2023

Engage Your Labor Partners and Begin to Develop Your Plans and Trainings Now in Preparation for the July 1, 2024 Effective Date.

On September 30, 2023, Governor Gavin Newsom signed into law Senate Bill (S.B.) No. 553, which requires virtually all public and private employers in California to design, implement, and maintain a workplace violence prevention plan (“WVPP”) and training program(s) by July 1, 2024. You may have seen our firm’s prior alert on the topic, available here. This alert aims to inform public sector employers and private sector employers with unionized workforces in particular about the unique meet-and-confer/bargaining obligations created by the law and to forecast the anticipated timeline and steps needed to meet the July 1, 2024 effective date. (Throughout this alert, we refer to public sector employers and meet-and-confer obligations posed by the legislation. These obligations, however, extend equally to private sector employers with unionized employees and their collective bargaining obligations.)

Spoiler alert – we recommend that you get started now.

SB 553’s Requirements and Public Sector Labor Law Implications

As of the publication date of this alert, impacted California employers technically have approximately six and-a-half months to comply with S.B. 553 added as Labor Code Section 6401.9. There is, however, much work to do during this six-month period to have a final WVPP in place and to be prepared to train workforces on their organization-specific plans by this deadline.

In our prior alert, we summarized S.B. 553’s genesis and most notable requirements for employers, including the requirement to train employees on several topics, such as the law’s definitions and standards, the WVPP itself, maintaining documentation under the plan, and how to report incidents and concerns. Other notable aspects include the fact that S.B. 553 adds WVPPs as a mandatory portion of an employer’s existing injury and illness prevention program (IIPP) as required by Cal/OSHA, and that it will require an employer, for example, to: 1) designate the person responsible for implementing the program; 2) identify and correct hazards through periodic inspections; 3) train employees on hazards; and 4) maintain records of incidents.

With respect to collective bargaining, SB 553 requires the WVPP to include procedures to obtain the “active involvement” of employees and their collective bargaining representatives in “developing, implementing, and reviewing” the WVPP, including their participation in “identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents.” Cal/OSHA has yet to issue regulations elaborating on these requirements, which means it is unclear the degree to which a meet-and-confer on these topics must extend to satisfy SB 553’s requirements.

There is also presently no guidance on how these requirements interface with public sector employers’ existing obligations to meet-and-confer under the Meyers-Milias-Brown Act (“MMBA”), the Educational Employment Relations Act (“EERA”), or other California labor relations laws, and the relationship between SB 553 and public sector employers’ managerial rights when it comes to matters of workplace safety and security. The law’s requirements touch upon workplace safety, security, surveillance, training, additional/modified duties and potential contracting of services. These are all topics that public sector employers have traditionally been required to meet and confer over prior to implementation.

What this means is that public sector employers will likely not be able to develop or implement these plans on a short timeline and must start that process as soon as possible to meet the July 1, 2024 implementation target.

Timeline and Steps to Consider to Be in Compliance By July 1, 2024

STEP 1 – Educate Managers and Identify Persons in Charge to Develop and Meet-and-Confer Regarding the WVPP and Related Training Program(s) [As Soon As Possible]

Brief agency leaders on the law’s requirements and timeline for compliance.
Identify a specific person(s) or job classification(s) who is responsible for implementing the WVPP. Designated person(s) should partner with management, human resources, security/law enforcement specialists within and outside of the agency and legal counsel, who may provide attorney-client privilege protection as well.

STEP 2 – Start Development of the Workplace Violence Prevention Plan and the Related “Meet-and-Confer” Process with Labor Partners [January 1 – March 31, 2023]

Identify a team to develop the WVPP. This team will develop the plan and the related training programs. Consider including labor partners on this team as the law requires their “active involvement.” To ensure that there is enough time to complete bargaining before July 1, 2024, we recommend this process start in earnest, no later than the beginning of the new year, with the goal of having a completed WVPP by no later than March 31, 2023.
Evaluate hazards unique to your agency’s various job classifications—a potentially time-consuming task, that may require evaluation by a security professional and possibly input from labor partners regarding specific positions. The law requires that employers identify and train employees on “[w]orkplace violence hazards specific to the employees’ jobs.”
Involve labor partners in reaching agreement regarding “effective” procedures to address workplace violence. The law also repeatedly qualifies that the various procedures required as part of the WVPP must be “effective,” but Cal/OSHA has yet to issue guidance as to what it intended “effective” to mean in this context, either objectively or subjectively when applied to specific employers.
Employers may also consider how their WVPP integrates or relates to an organization’s existing Zero Tolerance Workplace Violence Policy, if one is in place.

Ideally, the plan itself and the related meet-and-confer process will be finalized by end of March 2024. Having that target date in place will allow for the organization to then move onto developing the related training program(s) that must be conducted by June 2024, or to consider whether they must pursue dispute resolution procedures with their labor partners in the event that they are unable to reach agreement about the plan terms.

STEP 3 – Start Developing Related Training Programs and “Meet-and-Confer” Regarding the Training [April – May 2024]

Ensure the training program meets SB 553’s specific requirements, including that the employer must offer an opportunity for employees to ask questions during the training, i.e., the training must be interactive, suggesting it cannot be a video recording.
Determine whether you need to develop job-specific training programs where certain job classifications or employees who work at specific job sites are subject to unique workplace violence hazards.
Ensure adequate time to meet-and-confer regarding the training program itself.

Assuming the employer has finalized its WVPP by March/April 2024, employers should aim to complete the meet-and-confer process regarding training programs by no later than the end of May 2024, to leave adequate time to put on workplace trainings before July 1, 2024.

STEP 4 – Publish the WVPP and Conduct Workplace Trainings [June 2024]

Publish the WVPP using your usual means of notifying employees about policies and procedures, e.g. agency-wide email, posting policy on agency website, etc.
We suggest June 2024, as a target date for employers to start offering workplace training programs regarding their WVPPs in accordance with SB 553’s training requirements and as tailored to their specific plan.
Ensure the trainers can speak about the requirements of the law and are familiar with the organization’s specific plan terms.

STEP 5 – Review and Revise the WVPP as Required and Conduct Annual Trainings [After July 1, 2024]

In addition to annual training for all employees, SB 553 requires periodic review, both annually as well as prompted by changed circumstances, including workplace violence incidents. As circumstances change, employers will need to engage their designated team of experts to reevaluate their plans and training programs.
Meet-and-confer with labor partners regarding changes to the plan to the extent required by law.

We are available to provide legal counsel and support to our clients in implementing these new changes. Our attorneys can provide advice and counsel to your organization’s executives about these new requirements, can strategize with security professionals/consultants in developing plan terms, can serve as labor negotiators or provide labor relations support to your managers, and can serve as trainers to present SB 553’s requirements and your plan terms to your workforce.