SB 553 and Workplace Investigations

May 06, 2024

At first glance, California’s Senate Bill 553, aimed at preventing and addressing workplace violence, may not appear directly relevant to workplace investigations. However, within the legislation’s key provisions is a requirement for employers to perform an investigation after any threat or incident of workplace violence. This mandate mirrors the Fair Employment and Housing Act (FEHA), which imposes an obligation on employers to conduct impartial investigations when complaints of discrimination, harassment or retaliation arise. This article will provide an overview of the new legislation, discuss the mandate for investigations, and explain why an external attorney investigator may be best situated to perform them.

California Passes New Legislation to Prevent Workplace Violence

In response to growing concerns over the rise of workplace violence occurring throughout the state, the California Legislature has continued its efforts to promote workplace safety. Those efforts resulted in Senate Bill 553 (SB 553), which requires employers to be proactive about workplace violence prevention. SB 553 mandates that employers establish, implement, and maintain a comprehensive Workplace Violence Prevention Plan, among other preventative measures. This applies to all California employers, with very limited exceptions. State law defines “employer” as any person engaged in any business or enterprise in California if they employ at least one person under any appointment. Gov. Gavin Newsom signed SB 553 in September 2023, and the bill goes into effect on July 1. SB 553 is newly codified under Labor Code Section Section 6401.9, which sets out the requirements for a Workplace Violence Prevention Plan. The bill will be enforced by the California Department of Industrial Relations, Division of Occupational Safety and Health (Cal/OSHA.)

The Workplace Violence Prevention Plan required by SB 553 is comprehensive. With the deadline for compliance approaching, Cal/OSHA has published a model Workplace Violence Prevention Plan. While this model is an excellent resource, employers should be aware that their own plan must be tailored to their workplace’s unique needs, so it can be implemented and maintained, not merely established.

SB 553 Has Significant Implications for Workplace Investigations

SB 553 requires that workplace violence incidents involving any employee are reported, investigated, and recorded. While there are numerous requirements for employers, the necessity of an investigation after a threat of violence or a workplace violence incident, should not be overlooked.

Under Labor Code Section 6401.9, any incident involving “workplace violence” or a “threat of violence” triggers the requirement for an investigation. “Workplace violence” is defined as “any act of violence that occurs in a place of employment.” An act of violence includes “the threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury.” “An incident involving a threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons” constitutes workplace violence “regardless of whether the employee sustains an injury.”

“Threat of violence” means “any verbal or written statement, including but not limited to, texts, electronic messages, social media messages, or other online posts, or any behavioral of physical conduct, that conveys an intent, or that is reasonably perceived to convey an intent, to cause physical harm or to place someone in fear of physical harm, and that serves no legitimate purpose.” These definitions are broad and can encompass numerous actions and behaviors that must be investigated.

When a threat or act of workplace violence occurs or is reported to an employer, employers are required to follow certain post-incident procedures, the most important of which is an investigation. The model Workplace Violence Prevention Plan indicates the following steps at a minimum should be taken: interviews of involved parties, such as employees, witnesses, law enforcement, and/or security personnel; review of security footage of existing security cameras if applicable; determination of the cause of the incident; obtaining any reports completed by law enforcement; and making findings to determine what occurred.

These requirements should be familiar to employers in California that are required to comply with the FEHA, which imposes an obligation on employers to conduct timely, thorough, and impartial investigations. Similar to the obligation to investigate under FEHA, the obligation to investigate under SB 553 requires employers to conduct a thorough and prompt inquiry. It is likely that, similar to FEHA, the investigation’s impartiality, quality, and findings will play a central role in the outcome of workplace violence incidents and potential future lawsuits against employers.

Employers must also include procedures for reporting the findings of investigations to those involved, as well as identifying what corrective actions an employer took in response to the findings of an investigation. Corrective action may include disciplinary action for involved employees, implementing safety measures, or other interventions designed to prevent future threats and occurrences.

Additionally, employers must be thorough in their record-keeping to demonstrate compliance with the Workplace Violence Prevention Plan—most importantly, documenting the investigation. For example, the investigator is required to keep comprehensive records of their investigation process, documenting all witness interviews, collection of physical and documentary evidence, and any additional steps taken during their inquiry. These records, which must be maintained for five years, serve to ensure that the employer conducts a timely, thorough, and unbiased investigation and provide a basis for any corrective measures implemented.

Why Hiring a Workplace Investigator May be Advisable

Employers facing unsettling acts of workplace violence must still maintain their compliance with SB 553 and conduct professional, thorough, and prompt investigations. In the face of threats of violence, an unnerved workforce, and sincere concern for the safety of your employees, it may be in an employer’s best interest to hire experienced and qualified attorney investigators who are trained to navigate these difficult situations.

First, attorney investigators are trained and certified in conducting sensitive investigations and have the necessary skillset to handle high stakes situations. Second, they provide impartiality and objectivity to delicate and sometimes volatile cases. Witnesses and involved parties are more likely to be candid and forthright with an outside entity. Lastly, responses to workplace violence must be timely, not only for compliance with SB 553, but also for the safety of employees. An external attorney investigator will be able to prioritize the investigation at hand without being occupied by other requirements and responses necessary for the Workplace Violence Prevention Plan.

In the post-SB 553 landscape, California employers bear a higher level of accountability than ever for ensuring the safety of their workforce. Making certain the investigation is expertly and independently conducted will not only keep employees safe, but also protect employers from liability.

Conclusion

Employers should be taking proactive steps to implement Workplace Violence Prevention Plans before the July 1, 2024, deadline. One of the most important steps may be designating the responsibility for investigating threats or incidents of workplace violence.

To read the original version of “SB 553 and Workplace Investigations,” please visit The Recorder website (subscription required).

Reprinted with permission from the May 2, 2024, edition of The Recorder ^© 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.