What luxury retailers should know – worker safety laws in California and New York

Morrison Cohen lawyers Keith Markel, Alana Mildner Smolow and Kayla West discuss a new Californian law and a similar proposal in New York that require retailers to take steps to ensure worker safety

In the wake of retail violence, two states are taking legislative action to increase safety ndoeljindoel

The news media prominently features stories about the increasing number of brazen shoplifters in the US and around the world. Whether or not retail violence is actually on the rise, luxury retailers are becoming increasingly aware of threats posed by organised theft rings, high-tech fraud and unruly customers. Additionally, violent acts have been committed in the retail workplace by disgruntled employees, former employees and in some cases, by employees’ family members or estranged romantic partners. 

Lawmakers across the US are concerned about reports of violence in retail workspaces, and certain jurisdictions have now set very specific rules for employers to follow. Although these laws were presumably passed with good intentions to keep workers safe, they have created additional hoops for employers to jump through, including complex requirements that can be difficult to navigate, especially when retailers operate multiple locations with differing security concerns.  

Luxury retailers must always be focused on their efforts to keep employees, customers and merchandise safe. Unlike convenience and drug stores now putting ice cream and shampoo under lock and key in high-theft locations, luxury retailers have regularly taken precautions to keep high-value merchandise out of the hands of thieves and to place security personnel at key points throughout a store. However, with the passage of “one size fits all” laws, which apply equally to luxury retailers and corner stores, employers must take steps to ensure that they are following the letter of the law, even if they have previously instituted protocols for workplace safety.

It’s good news then that a new law takes effect in California in July to address this new wave of workplace safety concerns; a similar law is proposed in New York.   

California Labor Law 6401.9 – requiring a workplace violence prevention plan

As of July 1, 2024, California requires employers to implement a Workplace Violence Prevention Plan (WVPP). A WVPP must include the names of people responsible for implementing the WVPP; procedures for employees to become involved in developing and implementing the plan; procedures for employers to handle reports of workplace violence; prohibitions on retaliation against employees who report violence; procedures to ensure compliance; communication procedures; emergency response protocols; training provisions; procedures to identify workplace violence hazards through inspections and to correct any identified hazards; and procedures for responding to and investigating workplace incidents.

Even if an employer has workplace safety policies in its employee handbooks or other policies, the WVPP requirement adds another layer of paperwork and training to operate a retail establishment in California. The WVPP must be made available to all employees and the California Occupational Safety and Health Administration (Cal-OSHA). Employers must maintain a log of violent incidents for a minimum of five years, and maintain training records for at least one year. Employers who fail to comply can receive a citation, which could result in a penalty of up to $25,000 for each “serious violation”, as determined by Cal-OSHA, and lesser monetary penalties for other types of violations.      

In drafting a WVPP, luxury retailers should keep in mind not only their corporate policies and those of the shopping centres or malls in which they operate. For example, policies on handling loiterers or unruly customers might require coordination with mall security in certain situations. Additionally, shopping centres may have different policies on whether security officers will respond to instances of suspected shoplifting or customer-related disputes. The WVPP should confirm and include any of these existing policies and incorporate as well as relevant phone numbers for mall security services and local emergency numbers on any postings in the workplace. If a retailer has multiple locations in California, the WVPP may need to be drafted differently depending on the location.  

New York’s proposed Retail Worker Safety Act

A recent bill, which establishes the Retail Worker Safety Act requiring retail worker employers to develop and implement programs to prevent workplace violence, was recently passed in the New York State legislature and is currently awaiting Governor Kathy Hochul’s signature. The law takes effect 180 days after Governor Hochul signs it into law.

If the bill is signed by Governor Hochul, as passed by the New York State legislature, retailers in New York, like California, would be required to develop a WVPP. The New York Department of Labor would publish a model policy and training program, which retailers could either adopt or implement their own policies that meet or exceed the basic requirements. Employers would be required to provide the policy and training to employees upon hire and annually thereafter. The bill would also require retailers with 500 or more employees in the United States to provide panic buttons, which could include wearable or mobile phone-based devices that could only be used to track employees’ locations when the button is triggered.  The provision of the bill requiring the implementation of panic buttons is not set to take effect until January 1, 2027. The current bill does not list specific penalties for non-compliance, but it authorizes the Commissioner of Labor to promulgate rules and regulations necessary to implement the law. 

What can luxury retailers do?

Luxury retailers in the US should continue to monitor federal, state and local laws for developments regarding workplace safety legislation. Even where not required by law, retailers should adopt best practices for preventing workplace violence and make sure that employees are aware of how to handle various emergency situations. Employers should also take seriously employee concerns about the safety of their stores and workspaces. Given laws in some states protecting employees from retaliation for raising good faith safety concerns, employers should not take disciplinary action against an employee simply because he or she called the company’s attention to a potential security matter. At the end of the day, keeping workers and customers safe is not only the law in certain jurisdictions, it is an easy way for retailers to avoid potential liability.      

Keith Markel is a partner and co-chair of Morrison Cohen’s labour and employment practice. Alana Mildner Smolow and Kayla West are associates at Morrison Cohen.

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