Tools to Address Workplace Violence in the Retail Sector

Transcript

INTRO 

In response to the alarming rise in workplace violence, particularly in the retail industry, states have begun implementing laws requiring employers to actively address this potential threat via policies and training.

On this episode of We get work®, we unpack the different state requirements for workplace violence prevention plans, and what employers can do to help keep their employees safe.  

Today's hosts are Tania Mistretta, co-leader of the Retail Group, and Sierra Vierra, member of the firm’s Workplace Safety and Health group and principals, respectively, in the New York City and Salt Lake City offices of Jackson Lewis. They are joined by Adrienne Wood, an associate in the New Orleans office and also a member of the Workplace Safety and Health group.

Tania, Sierra, Adrienne, the question on everyone’s mind today is: What should employers consider when creating a workplace violence prevention plan, and how will that impact my business?  

CONTENT

Tania Mistretta
Principal, New York City

Happy to be here with Sierra and Adrienne to have an engaging discussion around workplace violence and some of the challenges that a lot of our national retail clients are facing. 

Just to start off with that in mind, what are some of the challenges? I know we have a slew of state law developments in the workplace violence space, specific to retail. What sort of challenges are you seeing in terms of workplace violence for our retail clients?

Adrienne M. Wood
Associate, New Orleans 

Hey, Tania, thank you so much for joining us. Unfortunately, workplace violence is a growing issue. We have data from the Bureau of Labor to back that up, which shows, in particular, in the retail industry in 2023 alone, there were 306 fatalities, and 30% of those were homicides. That's just not acceptable.

Even without that data, more employees are reporting their fears of violence. Part of that is the rise in weapons – people can now bring weapons to the grocery store in certain states. That threat of brandishing a weapon has certainly had an effect on our employees. There's been a recent rise in smash-and-grabs in retail establishments. We've also seen folks are just getting agitated and aggressive lately, and they've been taking it out on retailers. It is a huge problem for many of our clients.

Mistretta

With that in mind, what tools and tricks of the trade can we advise our clients on in terms of combating workplace violence?

Wood

I'll chime in on that. I'm really grateful that we have so many clients who are so concerned about keeping their employees safe. They come to us and say, what can we do? The first thing we always ask our clients is do you have a written workplace violence prevention plan? A lot of times, they say no, what's that? Then, we look to our team of subject matter experts to draft those plans for our clients. 

We always say, what good is a plan or a policy if there's no training in place? We can also assist our clients with doing that training, whether we do a nationwide training for the managers, and then they can go on and train on a store-by-store basis. We're happy to come on-site and do that training. It's very important that employees not only know their policies, but also be trained on the procedures and how to put them into action.

Sierra Vierra
Principal, Salt Lake City 

To add on to that, Adrienne, one of the best opportunities we have to prevent violence in the workplace is by cooperating with our employees and really engaging them to help us identify problems before they lead to serious issues. We encourage all of our clients to actively engage with their employees to help identify potential issues and to help us identify workable solutions so that they can go to work safely each day and go home in the same condition they went to work in.

Mistretta

That really is the goal – workplace safety and making sure that our people are safe. I find a lot of people forget about the different trainings that are available, like active shooter trainings, which I know we've had more clients reach out to us requesting. Creativity and communication are so key. 

We've talked about a few things in terms of workplace violence prevention plans. What do those really look like? What are the core pieces that the client should strive to achieve with their plans? In states, of course, where there are no specific requirements, which I know we'll definitely want to talk about as well.

Vierra

Some states have very specific requirements for what's in that program. Really, for me, it comes down to three key issues. First, we need to identify the hazards and the fixes for them. Creating the program is one of the best opportunities we have to do that very deep dive into a business and figure out if there are active hazards that have not been addressed yet. The next thing is, do we have procedures for how we respond to an emergency? Workplace violence can, of course, escalate to an emergency response. Along with that, what are the channels for how we report a workplace violence incident, whether or not it's ongoing or suspected to occur in the future? Then, the third is, again, how do we communicate this information to our teammates? How do we train them on our policies and procedures? How do we get them engaged in helping us create this program?

Mistretta

You alluded to state requirements. Is there anything at the federal level that we need to be focusing on or that our clients need to be focusing on right now for workplace violence?

Wood

At the moment, there is no standard on the federal level. There's some guidance material on OSHA's website, but there is no actual standard that is binding on any of our clients at the federal level.

Mistretta

How about just general duty clause issues that we have to be specific or aware of, or anything there?

Vierra

Wow, good keywords, my friend. Yes.

Mistretta

What little I know about OSHA. I do not feign to be an OSHA attorney, but is there anything at the federal level we should be thinking about?

Vierra

Yes, federal OSHA is still using the General Duty Clause to address workplace violence deficiencies with employers. So, yes, employers nationally still should be thinking about potential OSHA enforcement actions arising from workplace violence incidents.

Mistretta

If nothing at the federal level, I know we've at least got New York and California for retail. Can we talk about some of the differences and similarities, especially for our national employers who have clients in both states, which, California and New York, I don't have to tell you, are challenging.

Vierra

Let's talk just quickly about California's program. California was ahead of the game. Its workplace violence prevention program went into effect in July 2024. We're well past the one-year mark of that law being in effect. We're still waiting for regulations to be issued to enforce that new law. California is a little unique. It applies to pretty much every employer in the state. There are some exceptions. That's very common for teleworking employees, but it has a huge application to retail employers in the state. 

Some key elements for California's requirement are that we have to have a written workplace violence prevention program. It really needs to be customized to each location. Employees have to be involved in developing it, and we have to review it regularly at least once a year. Employees are required to be trained on that program, and then retraining is required at least annually after that. We also have some record-keeping obligations in California. Workplace violence incidents need to be logged. We need to keep records of our investigations, hazard assessments, corrective actions, and training. There are a lot of record-keeping requirements that employers need to follow. It's a lot of fun. 

Adrienne can tell us a little bit about New York's requirements.

Wood

Fortunately, the New York requirements are not very different than the California ones. They definitely overlap in some areas. One of the biggest areas where they do not overlap is who has to have these plans in place. Unlike California's where it's broad—pretty much all the employers need these plans –in New York, it's very specific to retailers. That definition is actually a very interesting one. It only applies to establishments with 10 or more employees, and they have to basically sell goods. 

Some of the key requirements are like Sierra alluded to earlier, the written workplace violence prevention policy needs to be written. An employer cannot just go speak to their employees and tell them what to do if somebody breaks into the store. It needs to be written down, and the employees need to be able to access it.

Included in that plan, we need to have the workplace violence risk factors. Sierra mentioned earlier that it's going to be very different with each brick-and-mortar store. One might be in a neighborhood that might have higher crime rates; therefore, that's going to be a factor. One might open really early in the morning or stay open really late at night; that's going to be a factor. The plan also must have prevention methods. It needs to cite the local law. It also importantly needs an anti-retaliation statement to be clear that employees, if they report any incidents or any complaints about their safety they will not be retaliated against. 

New York, like California, also has a model plan, but these items can be very confusing for employees, so they come to us to help them draft these plans. Also, the New York plan has training requirements, and this training is pretty thorough. It needs to be done during working hours. It needs to do an overview of the Retail Worker Safety Act requirements, the tactics for protecting against and de-escalating workplace violence, the role of supervisors and managers in the reporting and response to that, as well as active shooter procedures. The training must be upon hire as well as annually or every two years, depending on the size of the business. 

Interestingly enough, the one way that these two plans do differ is beginning January 1st, 2027, silent response buttons must be installed in New York retailers. There is an alternative that is installing some type of applications on an employee's phone, or they can use personal wearable panic buttons. However, New York is giving their employers about a year and a half head start to get those in place because they are complicated and not as simple as they sound.

Mistretta 

We've seen states issue model plans. I know a lot of clients struggle with this, where they just take the model plan and they go, there I have it, right? Really, those model plans are just a base template, which you have to go through and fill out. I know a lot of our Jackson Lewis attorneys are supporting that endeavor.

We've talked about some of the similarities and some of the differences. Anything else in terms of the differences between California and New York that we want to cover, or do you have any other practical takeaways before we end?

Vierra

A couple of the key differences really are the scope of who's covered by these rules. Again, California is very broad, and general industry is included in these new laws' requirements. Then, in New York, we're looking at retail employers. Arguably, that law is better crafted and tailored for the challenges that retail employers are facing. Whereas in California, employers of all shapes and sizes are being forced to fit into one standard that really does not apply very well to different types of organizations. 

Another difference, California is very big on stressing the requirement of having active employee involvement in developing and implementing the program. New York does not have that same emphasis in the current version of its program. Whether that changes in the future, we don't know, but that is a very unique distinction about how the program gets developed. 

To Adrienne’s point, California doesn't require the panic buttons that are going to be required in New York for retail employers. Whether employers in California voluntarily adopt that system will be up to each employer and what makes sense for their establishment. We'll give New York's requirements a test drive and see how that works.

Mistretta

That's the challenge with all of this evolving. As new measures and technologies come into place, it raises the question of whether that falls under the general duty. Is that something that we need to add a minimum due to keep our employees safe? 

Thank you both. This was very helpful in terms of final takeaways for our listeners. Any practical advice that you would recommend to employers who are concerned about workplace safety, who want to take measures to keep staff safe? Any final thoughts before we wrap up?

Vierra

To go back to some of the critical elements of a workplace violence prevention program, conduct your risk assessments and address the hazards that you find. Look at your current safety protocols and think about how they can be improved. For me, safety programs are never finished. They're something that we can constantly reevaluate and improve to keep employees safe. Then, make sure you're doing your regular training and keeping good documentation of your training.

Adrienne, what else do you think?

Wood

Employers, if you are operating in more than one state, you need to be vigilant in monitoring the legislation on this. We've seen a rise in workplace violence requirements in the healthcare sector, and the retail sector is going to be next. We need to be monitoring that on a state-by-state basis.

Mistretta

Fantastic. Thank you, Sierra and Adrienne. For any of our listeners who are looking for more information, please stay tuned and reach out to the Jackson Lewis attorney with whom you regularly work. Thanks, everyone.

OUTRO

Thank you for joining us on We get work®. Please tune into our next program where we will continue to tell you not only what’s legal, but what is effective. We get work® is available to stream and subscribe to on Apple Podcasts and YouTube. For more information on today’s topic, our presenters and other Jackson Lewis resources, visit jacksonlewis.com.