College and University Compliance with California’s New Workplace Violence Prevention Law

02.21.2024

Senate Bill (S.B.) No. 553, comes into effect on July 1, 2024, and given its many detailed requirements, which require meetings with your employees and their union(s), we urge California community college districts and other California institutions of higher education to ensure they are taking steps to come into compliance with this new law. We have written of the law’s requirements in two prior Alerts: October 4, 2023 and December 15, 2023. The purpose of this Alert is to compare S.B. 553’s requirements with other laws impacting institutions of higher education, explain how these laws overlap, and ensure institutions comply with all applicable requirements prior to, during, and after a workplace violence incident.

Comparison with Injury and Illness Prevention Program Requirements

Existing California law requires employers to establish, implement, and maintain an effective injury prevention program, known as an Injury and Illness Prevention Program (“IIPP”). SB 553 adds Labor Code section 6401.9, effective July 1, 2024, requiring employers to establish, implement, and maintain a Workplace Violence Prevention Plan (“WVPP”). The WVPP may be included as a stand-alone section in the institution’s IIPP, or it may be a separate document. The WVPP must be reviewed at least annually, as well as when a deficiency is observed or becomes apparent, and after a workplace violence incident.

Whether the WVPP is included as part of the IIPP or as a separate document, it is different from the IIPP in a number of ways. For example, the WVPP must:

• Contain specified procedures to allow employees to report a violent incident, threat, or other workplace violence concern to the employer or law enforcement without fear of reprisal.
• Provide an explanation as to how employee concerns will be investigated and how employees will be informed of the results of the investigation and any corrective actions to be taken.
• Provide for inspections to identify unsafe conditions and work practices related to workplace violence.
• Memorialize procedures to alert employees of workplace violence emergencies and evacuation or sheltering plans and provide information about how employees may obtain help from staff assigned to respond to workplace violence emergencies.

In addition to the WVPP, Section 6401.9 requires that employers record information in a violent incident log for every workplace violence incident. The law is very specific as to what information should be included in the log, including, for example, the type of incident, circumstances that may have contributed to the incident, and actions taken to protect employees from a continuing threat or other identified hazards.

Section 6401.9 also contains detailed provisions regarding the type of training that must be provided, including how the training is to be developed, as well as when and how the training must be provided. Additionally, the law requires that institutions design and implement the training with the involvement of their employees and their unions.

Section 6401.9 contains extensive recordkeeping requirements and provides for a five-year retention period for most records, which is longer than the retention period in many IIPPs.

Comparison with the Clery Act

The Clery Act (“Clery”) requires postsecondary institutions to collect certain data, maintain a daily crime log and an Annual Security Report reflecting reports of enumerated criminal offenses, sexual offenses, and hate crimes, as well as domestic violence, dating violence, and stalking. Clery requires Emergency Notifications to be sent to the campus community for current/imminent “significant emergencies” or “dangerous situations,” and Timely Warnings to be sent for Clery crimes that have occurred and represent an ongoing threat. In contrast with Clery, Section 6401.9:

• Applies to a broader range of conduct than Clery, including: i) all threats 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; and ii) an incident involving a threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.
• Applies to a different geographic area than Clery. Section 6401.9 applies to “each facility, department, or operation of the establishment, including surrounding areas, such as employee parking areas and other outdoor areas.” “Clery Geography” includes the “campus,” “noncampus building or property” and “public property”, all of which are defined in Clery.
• Requires a Violent Incident log to be maintained. This is different than the daily crime log required by Clery.
• Requires investigations for reports of alleged Workplace Violence as well as notice to the employee of the results of the investigation and any corrective actions to be taken.

Comparison with Title IX

Additionally, there is some overlap between the Title IX[1] regulations governing allegations of sexual harassment and Section 6401.9. Both Title IX and Section 6401.9 require investigations and certain recordkeeping. However, beyond that, the two statutes differ. For example:

• While Title IX applies to all sexual harassment, as defined, Section 6401.9 applies to a narrower range of conduct (threats of violence or violence, as defined, including but not limited to sexual assault or physical sexual contact).
• Title IX jurisdiction extends to all “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” Section 6401.9 applies to all “places of employment” (except telework locations that are not under the control of the employer).
• Title IX requires supportive measures, i.e., non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Section 6401.9 requires “effective procedures to respond to actual or potential workplace violence emergencies,” but does not specifically reference supportive measures.
• The Title IX grievance process requires a live hearing, whereas Section 6401.9 requires procedures to demonstrate compliance, which include disciplinary action, but does not specify the procedures that must be followed before imposing discipline.

Next Steps

California institutions need to design and implement a WVPP, which will require meetings with your employees and with your unions. Institutions also need to ensure their policies are compliant with current laws, including Clery and Title IX.  Once all policies and plans are updated, the following checklist may be helpful in ensuring continued compliance.

Checklist

To assist California postsecondary institutions in complying with Clery, Title IX, and Section 6401.9, the following checklist may be used in preventing and responding to violent incidents:

Applicable Law(s)

1. Is the entity covered by Title IX, Clery, and/or Section 6401.9? (Note: California community college districts are covered by all three of these laws.)
2. Is the conduct covered by Title IX, Clery, and/or Section 6401.9?
3. Is the location where the conduct occurred covered by Title IX, Clery, and/or Section 6401.9?

Accepting Reports and Identifying Hazards

4. Has the institution implemented and publicized a system to accept reports of discrimination and harassment, Clery crimes, and reports of workplace violence?

5. If covered by Section 6401.9,

a. Is the institution’s plan specific to the hazards and corrective measures for each work area and operation?

b. Has the institution coordinated implementation of the plan with other employers, if applicable?

c. Has the institution conducted scheduled periodic inspections to identify unsafe conditions and work practices and employee reports and concerns?

d. Was an inspection conducted when the plan was first established, and after each workplace incident, and whenever the employer is made aware of a new or previously unrecognized hazard?

Emergency Notifications/TROs/Removal of Respondent

6. If covered by Clery and/or Section 6401.9, has the institution issued an Emergency Notification or Timely Warning (Clery); and/or has the institution issued an alert to employees of the presence, location, and nature of workplace violence emergencies and, if appropriate, initiated an evacuation or sheltering plan (Section 6401.9)?

7. Has the institution considered placing the employee who is accused of having engaged in inappropriate conduct on paid administrative leave or otherwise removing the individual from the campus/worksite? (For student respondents, emergency removal of a respondent may be covered by Title IX.)

8. Has the institution considered whether to seek a Workplace Violence Restraining Order on behalf of an employee who has suffered unlawful violence or a credible threat of violence that can reasonably be construed to be carried out or to have been carried out at the workplace? (See Code of Civil Procedure Section 527.8.)

Supportive Measures

9. If covered by Title IX, has the institution offered supportive measures to the complainant and respondent?

Responding to Reports and Implementing Corrective Action

10. Has an investigation been initiated? If covered by Title IX, has the District followed the required investigation and decision-making (hearing) procedures, as well as the appeal process?

11. If covered by Title IX, has the institution determined if there was a policy violation and, if so, taken appropriate corrective action and informed the complainant and respondent?

12. If covered by Section 6401.9, has the institution corrected, in a timely manner, any workplace hazards identified and evaluated?

13. If covered by Section 6401.9, has the institution informed the reporting party about the results of the investigation and any corrective actions to be taken?

14. If covered by Title IX and/or Section 6401.9, has the institution ensured that supervisory and nonsupervisory employees comply with the plan?

Training

15. Has the institution obtained the active involvement of its employees and their unions in designing and implementing the training required by Section 6401.9?

16. Has the institution developed and implemented all training and retraining required by Title IX, Clery, and Section 6401.9?

Data Collection and Disclosure

17. If covered by Clery, has the institution published and disseminated an Annual Security Report and, if applicable, a Fire Safety Report by October 1 of each year? And, has the institution provided notice of the availability of the Reports to all current and prospective students and employees?

18. If covered by Clery, has the institution created, maintained, and made available a daily crime log, including entering all new data within two business days, except where disclosure is prohibited by law or would jeopardize the confidentiality of the victim? And, has the institution made the log for the most recent 60 days open to public inspection during normal business hours?

19. If covered by Section 6401.9, has the institution created and maintained a violent incident log in which it records the specified details for every workplace violence incident?

20. If covered by Section 6401.9, has the institution made required information available to employees and their representatives without cost within 15 days of a request (and, if applicable, considered other requirements under the CPRA and HEERA)?

21. Before releasing records, has the institution considered whether the records need to be redacted to remove attorney-client privileged information and/or information that may violate privacy rights of students or employees?

Records Retention

22. Of Title IX, Clery, and Section 6401.9, Title IX contains the longest retention period: seven (7) years, for information related to investigations and sanctions, informal resolution and results, and training materials. Has the institution maintained the records required by all three statutes for the amount of time specified in each statute?

Policy Review

     23. If covered by Section 6401.9, has the institution reviewed its plan at least annually, as well as when a deficiency is observed or becomes apparent, and after a workplace violence incident?

Please do not hesitate to contact the authors of this Alert or your usual AALRR attorney for assistance with the preparation of your WVPP, collective bargaining, implementation of your required training, evaluating a case for a Workplace Violence Restraining Order or with any other questions.

[1] It is expected that new Title IX regulations will be issued sometime this spring.

WEBINAR 03.27.2024 | Tips to Comply with California’s New Workplace Violence Standard (Specific for Higher Education)

Please note that copyright restrictions have been placed on this information and any reproduction requires the express written permission of Atkinson, Andelson, Loya, Ruud & Romo (AALRR). These materials are intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law or to a specific set of facts. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship.    

© 2024 Atkinson, Andelson, Loya, Ruud & Romo