Smash and grabs and other crimes mean more work for employers

Employers already burdened by increased thefts and violence will now also be charged with creating and implementing workplace violence plans, as well as reporting incidents under proposed Occupational Safety and Health Administration (OSHA) regulations. Workplace violence has become an alarming issue as retail thefts continue to rise. Workplace violence refers to acts or threats of physical violence, harassment, intimidation, or other aggressive behaviors that occur within a work environment. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), of the 5,333 fatal workplace injuries that occurred in the United States in 2019, 761 were cases of intentional injury by another person. The growing prevalence of "flash robs," also known as multiple offender crimes, organized retail crimes, or flash mob robberies involving large groups of people participating in a "smash and grab" theft in retail stores during business hours, has also raised a number of safety concerns for employees. In one instance, on Aug. 19, 2022, around 100 people looted a 7-Eleven store in Los Angeles, grabbing drinks, cigarettes, lottery tickets, bags of chips and other items. Recently, more than 80 people stormed a Nordstrom in San Francisco, assaulting two employees.OSHA currently has no specific standards for workplace violence.

"However, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is 'free from recognized hazards that are causing or are likely to cause death or serious physical harm.'" Workplace Violence - Enforcement Occupational Safety and Health Administration (osha.gov). "The courts have interpreted OSHA's general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard." Id. Although the OSHA recommends that employers implement a workplace violence prevention program, there are no strict guidelines or obligations to do so. In an attempt to address the lack of guidance and restrictions regarding how employers handle workplace violence, the California Senate recently passed a bill (SB 553) which, if enacted, would impose greater obligations on employers for managing violence that occurs in the workplace. SB 553 would require, among other things, employers with at least one employee to: 1) "Establish, implement, and maintain, at all times in all of the employer's facilities, a workplace violence prevention plan for purposes of protecting employees and other personnel from aggressive and violent behavior at the workplace";2) Implement "[p]rocedures to correct workplace violence hazards in a timely manner;"3) Have procedures in place, including referring employees to "worker wellness centers or employee assistance programs," and conducting a post-incident debriefing as soon as possible after the incident;4) "Record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation" required to be performed as part of the workplace violence prevention plan;5) "Establish and implement a system to review, at least annually, ... the effectiveness of the workplace violence prevention plan";6) "Provide effective training to employees ... that addresses the workplace violence risks that employees may reasonably anticipate to encounter in their jobs";7) Create and maintain "records of workplace violence hazard identification, evaluation, and correction." SB 553 will also impose certain restrictions on employers. For example, employers would be prohibited from "maintaining policies that require employees to confront active shooters or suspected shoplifters."

However, this provision would not apply to dedicated security personnel such as security guards. Employers would also be prohibited from retaliating against employees who report workplace violence or who contact local emergency services or law enforcement when a violent incident occurs. As drafted, the bill would also permit an employer or collective bargaining representative of an employee to seek a temporary restraining order on behalf of the employee and other employees at the workplace who have suffered unlawful violence or a credible threat of violence. This would be a substantial deviation from existing law, which only authorized individual employees to seek out a temporary restraining order. If enacted, SB 553 will, among other things, impose stricter regulations and place additional responsibilities on employers to take measures to establish and maintain thorough workplace violence prevention programs, conduct training, and establish reporting mechanisms. Should SB 553 pass, employers should work with their counsel to develop and implement workplace violence safety plans and appropriate policies, or they may face potential liability for their failure to do so.