date performance violations in order to establish the non-retaliatory basis for actions taken. Other than the recent employment law changes, what are the key challenges facing employers? The primary challenge for every employer is managing compliance. There are not just dozens of laws that affect employers each year, but also existing laws are constantly being changed, expanded or interpreted differently based on legal cases. The legislature will often try to settle the divide, but often just create more confusion for employers. Adding to the rapid changes in the law, is the fact that well trained HR professionals lack the time and ability to train managers that are interacting with employees on these unique nuances. Thus, most companies have compliant laws, but the consistent deployment of those laws can be a challenge. clause or agreement already entered into is void. If employers have such agreements in place and have not notified employees they should do so. New Requirement to Develop and Implement a Workplace Violence Prevention Plan. This law adds Section 6401.9 to the California Labor Code, which requires nearly all California employers to establish, implement and maintain an “effective” workplace violence prevention plan by July 1, 2024. Under the new law, a covered employer must establish a workplace violence prevention plan, a deployment procedure for training employees on the plan, procedures for post-incident response and investigation, and procedures for the employer to review and update the plan for effectiveness annually, or sooner if a deficiency is observed, or after an incident of violence. There are also detailed log requirements requiring employers to log workplace violence hazard identifications, evaluations and corrections, as well as the employer’s investigations. The requirements are new and extensive and failure to comply can carry assessment of monetary penalties. Thus, employers should begin development early. Whistleblower Protections – Rebuttable Presumption. SB 497 establishes a rebuttable presumption of retaliation if an employer takes an adverse action against an employee within 90 days of the employee engaging in certain protected activities, such as complaining about an equal pay violation or an employment practice that the employee reasonably believes is unlawful. Employers, however, can still defend against retaliation claims by articulating a legitimate, nonretaliatory reason for the employment action, which then shifts the burden back to the Employee. It is important for employers to properly document and 62 LAWYER MONTHLY FEBRUARY 2024 The greatest risks to employers are the lack of continuity between the government and the courts; and lack of proper training of managers that interact with employees daily. Christine H. Long Partner, Berliner Cohen LLP
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