The "Under 10" Exemption That Isn't

California’s workplace violence prevention law applies to pretty much everyone. You included.

For a lot of employers that’s means having to create a prevention plan for the first time. Maybe you have a policy prohibiting workplace violence. But that’s as far as it went.

As a small employer, there’s a whole lot of other more pressing things to handle than something that happens to other types of organizations. You’ve got good people working in a family like environment. And you’re not alone in thinking that way.

California is a small and micro business state. 87% of the state’s employers have 9 or fewer employees. 

And when the law first came out, there was a lot of talk about a small workplace exception to the requirements for workplaces with fewer than 10 employees.

Because of that chatter, a lot of small employers with fewer than 10 employees heard the number 10, breathed a sigh of relief, and thought to themselves we’re in the clear, and went on with the gazillion other things running a business requires.

Let the other 13% of employers, the ones with compliance, and security teams worry about it.

Except. That exception isn’t what people thought. In fact, it’s the opposite. Most small employers who thought they were exempt aren’t.

In order for a place of employment to qualify under the exception, not only must it have fewer than 10 employees, BUT it also cannot be accessible to anyone from the public, AND it must already have in place a general employee safety plan.

And while we’re clearing up misconceptions, if your employees do their work at other people’s homes or businesses, and not in a store front. You’re still required to create a prevention plan. Because under California law your workplace is where you do your work, not your central office. So that still counts as a workplace that’s accessible to the public.

Kind of like home is where the heart is, your workplace is where your work takes place.

So for restaurants, cafes, hair salons, stores, professional offices, medical practices, remodeling and service contractors, you still need to develop and implement a workplace violence prevention plan that complies with the law, even if they have just one employee.

So what exactly does that mean for you as an employer?

Does your prevention policy comply with the law? That’d be great. You’d still be in the clear.

No. It doesn’t. Not by a long shot.

California’s workplace violence prevention law requires much more from employers than a “thou shall not” policy.

Can you make your life easier by buying a generic template and swapping in your company name and address? 

Again, no.

Specificity is the intent of the law. Your plan must be specific to your organization.

You’ve got to assess and remedy the specific safety hazards that your employees have to deal with, whether they come from the physical environment, their work practices and processes, and the people your employees interact with. 

You’re also required to have effective complaint and investigation processes. And to train your employees in strategies to avoid physical harm that are specific to the safety threats they face.

And that requires doing the heavy lifting. But there’s a benefit to that. You will reduce your employees’ safety risks, and your organization’s liability exposure, especially to third parties who might otherwise get attacked while at your organization. Both of these results make the effort of creating a prevention plan unique to your organization well worth it.

Alright. So clearly that’s worth doing right. But, once you get through that process and create your prevention plan, then you can put the plan in the drawer and get back to what it is that you do right?

Wrong.

Your plan must be implemented, and then reassessed for effectiveness every year, and you’ve got to provide a variety of trainings to your employees each year too. 

Implementation turns your prevention plan into a prevention program. And that’s where the real benefits kick in.

A violence prevention policy won’t get you there. Nor will a plan that looks good on paper but isn’t effective at addressing real world safety hazards. 

A prevention policy is an employer directive. It says thou shall not commit workplace violence. It only addresses violence committed by your employees, which is just 25% of all workplace violence incidents.

Policies are so ineffective at preventing actual workplace violence that California labor code section 6401.9, which forms the backbone of the workplace violence prevention law, doesn’t even mention a prevention policy. It’s solely about having a prevention plan. 

Because you’ve got to create a prevention plan before you can implement it, it’s good to think of it as the roadmap to employee and workplace safety from violence.

And that’s a huge difference from a policy. And why it’s so much more effective.

Here’s what that roadmap must help you do:

• To create a workplace violence prevention plan in writing that is in effect at all times, and in all work areas,  which must be specific to the hazards and corrective measures for each work area and operation.
• To identify the person's responsible for implementing the plan, and to clearly describe each person's role in that process.
• To identify effective procedures to ensure the active involvement of employees in identifying, evaluating, and correcting workplace violence hazards, in designing, and implementing training, and reporting, and investigating workplace violence incidents. 
• To identify procedures for effective complaint and investigation processes, and to prohibit retaliation against anyone reporting workplace violence incidents.
• To identify the specific workplace safety hazards employees face, and approaches to remediate them, 
• To identify effective procedures to ensure that employees, including those at a supervisory level, comply with the plan. 
• To create effective procedures to respond to workplace violence, emergencies, or potential emergencies, including a process of alerting employees to safety, emergencies, evacuation and sheltering plans, and how to contact those assigned to assist during a violence incident.
• To identify approaches for training employees in a variety of elements within the plan, and training them in strategies to avoid physical harm.
• To develop a workplace violence incident log including the specific information required to be included in the log when an incident occurs. 

Creating the prevention plan is where you do the critical thinking: assessments, reworking processes until you can reduce safety risks, evaluating safety risks that your employees face, and determining types of trainings that will keep your employees safe from workplace violence.

Then you have to switch gears and implement everything you developed in your prevention plan. That’s required in the law too.

To do that requires providing training, and carrying out specific tasks that you’ve determined will help reduce the risk of violence. It means properly documenting any violence that occurs including near misses. It means having a complaint process that allows for reporting safety concerns while protecting against retaliation, and an investigation process that gets to the facts.

And the trainings you provide are not one and done. You’ve got to provide them to your employees annually, whenever an incident occurs, or when a new safety hazard is identified.

Putting something together that might look good on paper but it won’t protect your employees or your organization. Somethings are worth doing right. Workplace violence prevention is one of those things.

I’ll soon be releasing a book (that’ll only be available on my website,) that’s a great DIY guide —especially when combined with the companion implementation tool kit—to help small California employers create an effective workplace violence prevention plan that not only meets California’s requirements, but helps you to protect your employees from real world violence while lessening your organizations liability exposure.