California’s Workplace Violence Prevention Law Turns Two, Part 3: Key Exemptions and Employer Burdens

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Karen Tynan: Hello, everyone, and thank you for joining us for the Ogletree Deakins podcast. My name is Karen Tynan, and I’m a shareholder in the Sacramento, California office and co-chair of the Workplace Violence Prevention Practice Group. Here with me today is Robert Rodriguez, the co-chair of that same practice group, and we’re talking about the exemptions to the California Workplace Violence Law SB 553. Are you ready, Robert?

Robert Rodriguez: I’m ready.

Karen Tynan: So, exemptions. Employers are always interested in whether they could possibly fall under an exemption to this workplace violence prevention law. Can you take us through a high-level overview of who is exempt from the requirements of SB 553?

Robert Rodriguez: Yeah, absolutely. So, the way the law is written is…essentially, this is a general industry law, it’s applicable to any type of employer in California. No matter the number of employees, that’s your baseline. You start there with, “If I’m in business in California, this law likely applies to me unless these exemptions apply.” So, that’s where we start. The first main big exemption is the healthcare facilities, anything to do with healthcare. And the reason for that particular one is that healthcare has its own workplace violence standard that’s been in effect for quite some time, very robust, very burdensome. And the reason being is there’s a lot of risks that are unique to the healthcare setting that aren’t unique to general industry. So, they’ve got their own, they’re exempt. And I know you’ve worked with a lot of healthcare clients on that one, and it’s a whole other type of animal.

Karen Tynan: Right, it’s got its own set of regulations and some very specific requirements, and very specific reporting requirements. And we typically see for employers, let’s say, with a psychiatric facility or hospitals, places like that where you’re having these patient interactions that can be a bit risky. And so what SB 553 with the exemptions makes clear is healthcare facilities…and they’re defined in particular ways, but just think of it that way, healthcare facilities are exempt from SB 553, but you’re going to be complying with the very specific Cal/OSHA regulation for workplace violence under section 3342 of Title 8 of the Code of Regulations.

Robert Rodriguez: And I don’t know if you have crossed this issue before, but I’ve had some clients that are, quote, unquote, “in the healthcare space.” And then we’ve actually dug deep into what the definition of healthcare facility is under those other regulations we found, even though you are in healthcare, sometimes you’re not subject to that. So even…if you’re a hospital, yes, there’s no question. But, some more kind of healthcare services, you really want to make sure you’ve determined which regulation you fall under, whether the general industry one or the healthcare regulation.

Karen Tynan: For sure. And you’re going to comply with one or the other. It’s not like, “Oh, I’m going to fall between the cracks here and not have to comply with one or the other.” You will comply with one of them and you will have workplace violence plans and all the accoutrements, as we say, even if you’re exempt under this law.

Robert Rodriguez: Great. Yeah. And the second exemption is the Department of Corrections and Rehabilitation. So, the CDCR facilities, CDCR hospitals, things of that nature, anything under CDCR is going to be exempt. And we’ll dig a little bit deeper into that, but just high-level overview, CDCR. Yeah. The next big one that I know Karen and I have had some experience with recently is the law enforcement agencies, one. Generally, if you are a law enforcement agency, you can be exempt. If there are certain other requirements met, we’ll dig a little bit deeper into those but just know that you can be potentially exempt if you’re a law enforcement agency.

Karen Tynan: Yeah. Everything from the small police department up to bigger agencies. And we’ll talk about it in a few minutes, but that exemption and those requirements, you definitely need to be aware of it and understand how you can or won’t be exempt.

Robert Rodriguez: Right, exactly. And now, the next two I think are going to be the most important for most of our audience. Number one is going to be the telework exemption. So those are for your employees who are truly teleworking. We’ll dig in the nuts and bolts of that. The second one that’s applicable to most private employers or can be applicable to private employers is what folks like to call the small business exemption, which I think is a misnomer a little bit, but essentially, it’s going to be for those workplaces that have a certain number of employees less than 10. There, they could potentially be exempt if they meet other requirements.

Karen Tynan: Right. And I think that is a top question because in some of the publicity or materials around SB 553, there would be headlines or commentary about a small business exception or exemption, and folks got excited about it, but I think you’re going to burst their bubble, Robert.

Robert Rodriguez: I hate to be that person to do it. So, in order to qualify for this kind of small business or small employer exemption, there’s essentially three things that have to be true. Number one, you have to have less than 10 employees, so you have to have nine employees or less, you also have to have your business not accessible to the public, and then the third one is you have to be in compliance with the injury and illness prevention regulation, meaning, you have an IIPP program at that work site. Now, taking those elements one by one, the law was written a little bit clunky. It said essentially that places of employment where there are less than 10 employees at any given time, that could potentially meet the exemption. And so the new draft regulation even notes that, this is a little bit of a weird wording, that work sites could vacillate between being covered and not being covered if 12 people show up that day.

So, they now are in the new regulation that’s expected to pass this particular piece is going to be if you have nine employees or less, that meets that element. So, if you have 10 employees at that site that are employed at that work site, you don’t qualify for it.

Karen Tynan: I think that’s going to be clearer to employers. I do think that there are a whole lot of businesses that have more than 10 employees, or 10 or more employees, that think of themselves as small businesses. Because in many other areas of law, you can see cutoffs at 25 employees, 50 employees for other particular requirements in the labor and employment area. And so, this number of employees, in my humble opinion, is too small, but it’s the number we’ve got.

Robert Rodriguez: Exactly. This is very important to underscore is that it’s the number of employees that work at that site, not that are there at any given time. So, one example is maybe a convenience store. You have 13 employees on the payroll, but you only have two clerks that work at any given time. That still would not qualify for the exemption because there are more than nine people at that work location on the payroll. So that would not qualify for it.

Karen Tynan: And so, what we want to understand is that this is an incredibly narrow exemption, right? That for many employers who think of themselves as a small employer, that meeting this way out of the workplace violence prevention law is very difficult based on number of employees, but also accessible to the public. What in the world does it mean where, okay…and the exemption is under Section F, if you want to go read it, it’s, “Places of employment where there are less than 10 employees working at the place at any given time and that are not accessible to the public.” Well, what does that mean? Because it’s not defined. It’s not defined in the reg, there’s been some directives and advice from Cal/OSHA, what is your understanding of accessible to the public?

Robert Rodriguez: Well, I think there’s kind of two extremes. Let’s say you’ve got a retail store that is open to the public, no question there, that’s accessible to the public. So, that same convenience store that I mentioned wouldn’t qualify because it’s open to the public. You’ve got certain offices like, our law office, where you have to badge in, it’s not open to the public. That would be no question that it’s not accessible with the public. But there’s kind of a lot of quasi in between there. Do we keep the doors locked? Do we prop them open for the FedEx delivery driver that comes on Thursday? Do we do where sometimes we lock the door, sometimes we don’t. So, there’s a lot of really fact-based analysis that has to be done about whether or not your business is open…or excuse me, accessible to the public.

Karen Tynan: Right. That requires some self-reflection of, “Do we get deliveries at work? If someone knocks on the door, do we open it?” And so, I like how you’re explaining it. So the small business exemption is really three prongs, the less than 10 employees, not accessible to the public, and in compliance with section 3203 of Title 8, which is the IIPP regulation.

Robert Rodriguez: Exactly. And so, I can say, in my experience working with a number of clients, I don’t think I’ve actually had one that met these exemptions. I don’t know if you have or not.

Karen Tynan: I have not. And I generally…once you work your way through the analysis, there tends to be disappointment and consternation from the employer’s perspective. So, we’ve talked about that. Now, earlier, you referenced the teleworking from a location of the employee’s choice as an exemption. What does teleworking where you’re not under the control of the employer really mean? And this is section E of the exemptions.

Robert Rodriguez: Yeah. And this one also has a little bit of uncertainty surrounding it as well. I think the easy answer is, obviously, after COVID, we have a lot of remote work. If you’ve got a fully remote job where you literally just work at your home, you’re choosing to work at your home, you’re choosing to maybe work at a coffee shop, that’s not under the employer’s control, that is truly going to be a teleworking employee and most certainly will qualify for this. Now, where this gets a little bit murky in situations I’ve had is, for example, what do we do with outside sales folks? If they telework from their house and they do emails, they do administrative work from their home, but then they go out and make sales calls to regular customers where they’re spending significant time there with their customers, is that teleworking from a place of their choice?

Because they’re really not choosing to be there, they have to be there as part of their job. So a lot of uncertainty around that. And if you have that population of where they’re teleworking but also going into your client’s spaces or your customer’s area, you’re going to need to analyze that a little more carefully.

Karen Tynan: Right. And I think that part that comes after the comma that indicates, which is not under the control of the employer, is the stickiest part of the exemption.

Robert Rodriguez: Yeah. Right.

Karen Tynan: So, we’ve talked about small business, teleworking, which those are the two questions we get the most, and I know we have another podcast on law enforcement, but can you give a bit of a taste of the law enforcement exemption under SB 553?

Robert Rodriguez: Yeah, absolutely. So, the main elements are you’ve got to be a law enforcement agency. And as you mentioned, it could be a really small municipality law enforcement agency, it could be a large, big city law enforcement agency, or a sheriff’s office, but that’s number one, you have to be a law enforcement agency. Generally, that employs peace officers, is going to be that. And then with those of our audience who are familiar with law enforcement, there is a thing called the Peace Officers Standards and Training, abbreviated to POST, and that covers a lot of just how peace officers are trained, what their standards are for their operations, and it’s widely accepted across law enforcement agencies. So, you’ve got to be essentially in line with that, accredited by POST. And then the last part is you have to have an injury and illness prevention program, much like the small employer exceptions.
So you’ve got to have all three, you got to be law enforcement, you got to be in compliance with POST, and then you also have to have an injury and illness prevention. And so those are the three main elements. And when I first saw this law come out, and Karen and I were reviewing it, reviewing the drafts, going to the Capitol and testifying in the different committees about it, for me, this one didn’t even seem like it was going to be controversial. And I thought, there’s no way Cal/OSHA’s ever going to even open an inspection to a law enforcement agency. And what have you seen around that?

Karen Tynan: Well, I think that the exemption, while it’s on the books, to me feels a bit illusory in that Cal/OSHA is interested in law enforcement activities and workplace violence associated both with law enforcement and the Department of Corrections, right?

Robert Rodriguez: Right.

Karen Tynan: And with incidents that happen in the field. And it begs the question, was the author of this bill really looking to see Cal/OSHA out there looking to enforce within agencies that maybe have not traditionally had that Cal/OSHA attention? So, I think section C and D, section C is Department of Corrections, Section D, under where it explains the exemptions is law enforcement agencies. So, our law enforcement agencies have that three-prong exemption, that three elements, and then the Department of Corrections, it also is an exemption, right?

Robert Rodriguez: Yeah. And I always like to tell a little anecdote about this one. The Department of Corrections exemption was added very, very late in the process. And the reason behind that is very, very political. My understanding was that the Department of Corrections did an analysis of what it was going to take for them to comply with this regulation and came up with a significant figure and essentially told the lawmakers and the Governor Newsom’s administration, “If we have to comply with this, it’s going to be X amount of dollars to retrofit these facilities, train our…It’s not feasible for us.” And so, they were granted a last-minute exemption in this new law.

Karen Tynan: And it makes sense, and their exemption doesn’t have the three prongs like others, which brings us to the question, and this is a California employer question that we’ve gotten in this last year, year and a half, well, who has to prove the exemption? Who has to say they have the exemption? Who raises their hand to the administrative law judge in a trial and says, “I’m proving the exemption”? So, tell us how that works.

Robert Rodriguez: Yeah, and I always have to deliver the bad news to employers that it is the employer’s responsibility to prove this exemption. It’s what we call an affirmative defense, meaning, we’ve got to put on evidence that show the employers meet this exemption. And in my experience, even during Cal/OSHA inspections, oftentimes, when you will provide them evidence of an affirmative defense, not just these exemptions, but other affirmative defenses, their stance is, “It’s not my job to consider your affirmative defense at this stage. I’m only going to consider whether or not there was a violation. If you feel there’s an affirmative defense, you’re welcome to appeal the citation and have a judge decide that.” Is that your experience?

Karen Tynan: Absolutely. And so, the idea, and I think employers mistakenly think that an inspection might start and they’re simply going to say to the inspector, “Oh, I’m under the small business exemption, and here’s how many employees I have, and here’s how this works. Oh, I’m not accessible. And oh, by the way, I’m compliant with my IIPP. I’ll shake your hands and you’ll go away.” That’s not how it works. In our experience, it’s about proving that exemption by a preponderance of evidence, the same as your other affirmative defenses like the Independent Employee Act, lack of employer knowledge, all of that preponderance of evidence standard. Do you agree?

Robert Rodriguez: Absolutely.

Karen Tynan: So, we’ve covered the exemptions to SB 553. Thanks for listening to Karen and Robert. Look for our blog articles on ogletree.com, our Workplace Violence Prevention Practice Group page, and follow us on LinkedIn. Thank you.

Robert Rodriguez: Thank you so much. Stay safe out there.

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