Brand New Investigation Requirement for California Employers

Many California employers are aware that the Fair Employment and Housing Act (FEHA) requires a timely, thorough and objective workplace investigation when there is an allegation of discrimination, harassment, or retaliation. Now, California employers must prepare for a new workplace investigation requirement when there is an allegation of workplace violence or a threat of violence. This is part of SB 553’s requirement for almost all employers to implement an effective, written Workplace Violence Prevention Plan (WVPP) by July 1, 2024.

SB 553 has a number of requirements that even safety experts are just beginning to grapple with, including annual employee training, hazard assessment and correction, record retention, and employee (and union) participation in the plan, just to name a few. CEA members can learn more about these requirements by downloading our Workplace Violence Prevention Plan Fact Sheet on the HR forms page. The new investigation requirement is just one component of a comprehensive WVPP. However, it is an important one that employers must be prepared to handle in the coming year. Below are some key highlights.

SB 553’s Investigation Requirement

For each workplace violence incident and/or employee concern of workplace violence, employers must investigate and record specific information on a violent incident log. In conducting an investigation, employers should solicit information from employees who experienced the workplace violence, obtain witness statements, and assess any other relevant evidence or documentation. For each incident, the log must include detailed information. CEA members can download our Violent Incident Log Sample on our HR forms page.

This log must be maintained for a minimum of five years. Employers are instructed to omit personal identifying information sufficient to allow identification of any person involved in a violent incident from the log. This is because the log must be made available to all employees and their representatives upon request.

Examples of Violent Incidents

Employers should be mindful that the definition of workplace violence is broad. Examples include:

• Physical attack without a weapon (e.g., biting, scratching, hair pulling, spitting, etc.)
• Attack with a weapon or object (e.g., a knife or firearm)
• Threat of physical force or threat of the use of a weapon or other object
• Sexual assault or threat, including unwanted verbal or physical contact
• Animal attack

Some examples that may come up in the workplace include threats and acts not only from coworkers, but from disgruntled customers, former employees, or an employee’s family member or significant other (this often occurs when intimate partner violence trickles into the workplace). There may also be random acts or threats by strangers with no connection to the workplace, including when you send employees to different locations or job sites. Employers should also proactively prepare for threats of violence in connection with retail theft and active shooter situations, which unfortunately have become increasingly common. Moreover, whenever an employer receives a complaint of harassment or bullying, they should assess whether it involves sexual harassment for purposes of recording on the violent incident log.

Steps to Investigate Workplace Violence

While SB 553 does not outline specific employer requirements beyond investigating, recording on the log, and correcting workplace violent hazards, employers should likely treat workplace violence investigations similarly to FEHA harassment investigations. This includes conducting the investigation promptly and objectively, documenting findings, determining what more likely than not occurred, maintaining confidentiality to the extent possible, assessing whether there were any policy violations, and engaging in prompt corrective action, as appropriate.

CEA is available to assist employers with workplace investigations and provide peace of mind. Contact us at 800.399.5331.