Written by Susan F. Wiltsie and Reilly C. Moore from Hunton Andrews Kurth LLP on January 31, 2025
Many states have workplace violence laws applicable to health care. Retail workplace violence laws are an emerging trend. California has a broad workplace violence law, which was effective in July 2024. New York has a new law exclusive to the retail industry that goes into effect in March 2025. Other states are anticipated to follow with similar legislation.
California Requires Comprehensive Workplace Violence Plans for Nearly All Employers
California requires virtually all employers with physical work locations in the state to implement workplace violence prevention plans. The law imposes detailed requirements for each employer’s plan, including site-specific workplace violence hazard assessments, processes to accept and respond to reports or threats of workplace violence, employee training, emergency response and a prohibition on retaliation. The law also requires employers to maintain “Violent Incident Logs” that include summary details regarding any threats of violence or violent incidents that occur at the site.
The law requires employers to coordinate plans, training and plan implementation with other employers that have employees present at the worksite. The law also requires sharing of the Violent Incident Logs with the other involved employers. All of this creates tremendous complication. Big-box retailers may have any number of employers with employees on-site– make-up counter, coffee, tailoring, food services, vendor deliveries/stocking, etc. The management company operating a mall has an even more significant problem with scores of employers. The California Division of Occupational Safety and Health will be implementing regulations, which ideally will make compliance easier. The regulations are unlikely to be less burdensome, but they should make responsibilities between/among employers easier to follow than the current law.
The [retail] team is very responsive and thorough.
Chambers USA, 2024
On the other coast, the New York legislature passed retail-specific workplace violence rules in 2024 that will take effect on March 4, 2025. The New York Retail Worker Safety Act applies to employers with 10 or more retail employees, and imposes additional “panic button” requirements for employers with 500 or more retail employees nationwide. The law defines a covered retailer as any “store that sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises,” so it excludes restaurants and delis.
The law requires covered employers to maintain a retail workplace violence prevention policy that lists all of the factors that might create workplace violence risk, including late or early working hours, exchanging money with the public, working alone or in small numbers, or uncontrolled, public access to the workplace. The policy also must include methods the employer uses to prevent incidents of workplace violence, including reporting systems for threats and incidents of violence. Employers are prohibited from retaliating against any employee for exercising rights under the law and this prohibition must be part of the policy and training. The New York Department of Labor has promised to release a model plan before the March 4 implementation date that employers may use to create their plans.
The law also requires detailed employee training requirements on the plan and methods employees can use to protect themselves from workplace violence, including de-escalation tactics. For larger employees, the law requires installation or provision of panic buttons “throughout the workplace” or via wearable or mobile-based means. The panic button requirements, which resemble similar safety measures implemented for hotel workers in some states, are not effective until January 1, 2027.
Retailers that do not operate in New York or California also should focus attention on violence mitigation. The federal OSH Act’s General Duty Clause (GDC) and its state-law equivalents require employers to provide employees with workplaces that are free from recognized hazards that are likely to cause serious injury or death. OSHA considers industry standards when engaging in GDC enforcement, and OSHA considers what a particular employer is doing to protect its employees at other of its worksites when evaluating whether the employer has violated the GDC.
In this manner, these new state laws can impact federal OSHA enforcement. Federal OSHA may use enhanced New York and California workplace violence programs against retail employers in general, claiming this is now the industry standard. Also, OSHA can and will hold nationwide employers to the level of effort in their New York and California sites at their sites in the other 48 states.
Federal OSHA has cited employers under the GDC for workplace violence events for decades, so this is not entirely new. Enforcement in the retail industry, though, has largely been confined to late-night retail or other establishments with employees working alone. Now, the risk of enforcement is across the board and all retail employers should take a fresh look at their existing violence prevention programs to make sure they are taking steps to mitigate the risk of violence.
