The Employee Handbook - A Human Resources Podcast by 2 Lawyers
"The Employee Handbook - An Human Resources Podcast", hosted by attorneys Arta Wildeboer and Ryan Ellis, offers expert insights into human resources issues and their legal implications, providing valuable guidance for navigating the complex intersection of HR practices and employment law. This informative series is essential for HR professionals and business managers seeking to understand and prevent legal challenges in the workplace.
The Employee Handbook - A Human Resources Podcast by 2 Lawyers
We Are All Just Prisoners Here of Our Own Device: California’s 2026 Upcoming Employment Laws and HR Shakeup Explained
California employment law is changing again in 2026—and employers need to prepare now. In this episode of The Employee Handbook, attorneys Arta Wildeboer and Ryan Ellis break down the most significant new California labor laws taking effect January 1, 2026.
Topics covered in this episode:
Wage & Hour Updates
- California minimum wage increasing to $16.90/hour (with higher rates in San Francisco and San Jose)
- New minimum exempt salary threshold: $70,304 annually
- Computer professional exemption: $122,573.13/year
- Licensed physician minimum: $107.17/hour
- SB 261 penalties for unpaid wage judgments—up to 3x the judgment amount
Remote Work Expense Reimbursement
- Labor Code 2802 updates requiring employers to reimburse remote employees for internet, phone, and electricity costs
- What counts as "reasonable" reimbursement and class action risks
Stay-or-Pay Provisions Banned
- California's new prohibition on training repayment agreements and stay-or-pay contract clauses
Workplace Violence Prevention Program (SB 553)
- Required incident logging and documentation
- Penalties up to $25,000 per violation ($158,000 for willful violations)
- PAGA exposure and how violations multiply
- Real examples: Slack threats, customer confrontations, domestic disputes at work
- Annual audit and training requirements
- Espinoza v. Target case discussion
Whether you're a California employer, HR professional, or business owner, this episode provides practical guidance on compliance with California's evolving employment regulations.
Hello everyone and welcome to a very special episode of the Employee Handbook, an HR podcast by two lawyers, which I don't even know how this happened. Ryan, uh welcome, I should say. Uh first off, thank you. Thank you. Nice to be here. Longtime listener, first time caller. Ryan, uh tell us why you're here today. What uh what do we owe this pleasure to? Let the audience know.
SPEAKER_01:Um I have gonna make a I'm in prison joke, but I'm not gonna do that. We're here to talk about 2026.
SPEAKER_00:Yes, we're here. Ryan had court today. That's what he was trying to make a joke about and just failed miserably. But Ryan had court today. He didn't get arrested for anything this time. Um but uh we wanted to talk about the 2026 laws that are coming in uh because we still get downloads every once in a while. So we thought we owed the remaining people uh Thanks mom. Yeah, thanks, mom. Actually, my mom has not even listened. She has not bothered to listen. She told me she did, but I I I doubt it. Um I didn't see any listeners from where she's from in the city, so I knew it.
SPEAKER_01:No, and I think it's it's really been on us. Uh, I know that our both of our sides, Arta and my work has been crazy, and we apologize for not doing these more often, but um, we definitely want to get back on the on the uh the podcast train and uh and keep these coming. We know we've had some good some good feedback. We've had some um some emails, some calls, some messages, so we want to keep it going and apologies from our end so we can get this back on track.
SPEAKER_00:That's right. I've been doing a lot of karate in the garage. That's been taking me up most of my time. Um also, yeah, I know I uh came up with a new business idea. Um for uh it's a store that uh sells suppositories. It's called Whole Foods. H-O-L-E Foods. But uh anyway, anybody want to get back to me on that? I'm I'm available.
SPEAKER_01:I love it, the HR podcast. I love it.
SPEAKER_00:HR, yeah, exactly. Um is that what we're here for? Uh yes. So what we want to do, new laws in 2026. We're gonna read off the laws, attempt to make some jokes about them, and uh be funny and stuff, and uh hopefully you guys will like it. So, uh Ryan, you want to just like start reading the list?
SPEAKER_01:Yeah, let's do it. So the one of the biggest things that I find in California, and again, just remind you, we are lawyers, we are not your lawyers. So anything that we talk about on this podcast is not legal advice. We would love to help you out with your legal issues or non-legal issues, but uh that would require a further agreement and consultation with us directly. So please, this is this uh podcast is for entertainment purposes only. Do not take this as legal advice or really any kind of advice for that matter.
SPEAKER_00:Um yeah, anything you do, check with your own lawyer first.
SPEAKER_01:Yeah, or call us. But let's let's just make sure that we we meet all don't call us. We meet all the uh the disclosures before. But so one of the things, one of the things that uh I find very interesting about California, and again, we're here uh located in California, is wage an hour law. Um, because not only is it insanely expensive to live in California, to pay taxes in California, um, but also as an employer, you have to pay an astoundingly large minimum wage that continues to grow. Um, that to me, as a as a business lawyer and business person myself, is just is just insane. Um, I understand the arguments of both sides, so please don't attack me in the comments, but paying somebody$16.90 an hour as a minimum, um, again, with other localities and other certain businesses or types of businesses being higher than that, it just blows my mind. So that there's my lead into the wage an hour as of January, January 1st of next year, 2026, California's statewide minimum wage goes up to$16.90 an hour. And places like San Francisco, uh, it jumps to almost$20,$19.18. And San Jose, um, where I hear they have a hockey team, but I'm sure it sucks, is$18.45.
SPEAKER_00:Well, I think part of uh part of the unintended consequence is I think the raise in minimum wage also would make people ineligible for federal benefits. Um, so they actually end up uh losing a lot of the federal benefits that they may get because of the wage going up. Although this is it's a very difficult topic. It's not something that we're planning to solve here. I'm doing more karate in the garage. And uh JP, what is this dance movie doing?
SPEAKER_02:JP is our producer/slash lawyer who's uh it's even crazier in California is that the uh minimum wage is even higher if you work in fast food.
SPEAKER_00:Oh,$20 an hour for fast food workers. But I will say McDonald's near my office has gotten so much better. It's like like Ronald has been on his game. Well, it's also the oldest location on the no, not that one that's going up the street, yes. But we we are next to pretty much the third uh third McDonald's ever and the longest operating McDonald's, uh still operating in continuous operation.
SPEAKER_01:And speaking of McDonald's, I just want to get this off my chest. California minimum wage has made McDonald's extremely expensive. I was in Texas in July, June, July. I went to the same McDonald's every day. I ordered the same meal every day. It was six dollars and ninety cents. Okay, six dollars and ninety cents. I come back to California, get the exact same meal from McDonald's a mile or two from my house. Guess how much that meal was? Don't guess. It was$12, almost double the price. That's kind of crazy. Okay. The exact same thing. So my point is that again, I understand the arguments for why minimum wage should be higher. I may or may not agree with that, but like California and taxes and wages and whatever, it makes everything so much more expensive. It's insane. But to continue down our wage an hour rant, um, salaries, the minimum exempt salary went up to$70,304, uh, which is$5,800 and some change a month.
SPEAKER_00:What does that mean, though, the minimum salary? Explain to our listeners why that would matter.
SPEAKER_01:Right. So to cut to be, I guess, properly classified for a white-collar exemption, I mean California as a salaried employee, one of the elements of that classification is the pay you get, the minimum annual salary you get or monthly salary. And now that has gone up again uh this year, 2026, to$70,304.
SPEAKER_00:And why that matters is so if you pay somebody salary, you don't have to give them lunch breaks and rest breaks like you would somebody who's paid on an hourly rate. That's that's the main biggest thing.
SPEAKER_01:And there's you know, there's a lot more benefits of having salary employees, but also was a downfall of how much it costs and other sort of compliance issues if you get caught with a misclassification lawsuit or allegation. Um apparently also the specialized exemptions went up for uh computer professionals, which is uh almost double of the minimum salary, is$122,573.13, which is almost$60 an hour. And licensed physicians must must earn at least$107.17 an hour. You'll notice that teachers are nowhere around here, people who teach everybody how to become these professionals. So again, uh our priorities are where they are in California. And then the biggest thing that I noted here, because we litigate these are on the playmate side and myself on the defendant side are wage and hour claims and wage judgments. You see, um if if an employee is misclassified or you don't pay them over time, or you don't pay them enough minimum wage, you get sued, the company gets sued, there's a judgment, you have to pay the judgment. But now, according to SB 261, employers who fail to pay final wage judgments 180 days after them being entered can face penalties, again, additional penalties beyond what you probably had to pay to get to that judgment, whether it's um LWDA fees or attorney's fees or whatever, of up to three times the judgment amount. So I think if we didn't guess already and didn't know already, California specifically, you need to pay your employees. If you don't, you need to pay the judgments that you get against you for payment of those employees. Art of your thoughts.
SPEAKER_00:It's gonna get expensive uh to screw over your employees in California if you get caught. Uh luckily, I think less and less employers are getting caught. Well, luckily for employers. Um, but uh yeah, it just gets messier because now uh there's another labor code that's coming up. It's uh expense reimbursement, labor code 2802. If an employee works at home in California, then they must be reimbursed a reasonable percentage of their internet phone electricity. So this is a big class action risk if you have a lot of remote employees and also brings a very kind of difficult equation into this. Well, what is reasonable? You know, like now you're gonna have to do like a calculation for every employee. Well, how much time do they spend on their internet? How much is it better? Well, how do you do that?
SPEAKER_01:If you have ATT, do you have mint mobile? What do you have? Like if ATT costs$300 a month, Mint Mobile might cost you$35 a month.
SPEAKER_00:Brian, if I'm a small business owner and I call you and I say, What the hell do I do with this? What do you tell? Leave California. Leave California.
SPEAKER_01:Well, I mean, there this will get this will evolve through the case law, but just like with cell phone use, I mean, there's you can establish reasonable payments. I think they're anywhere between$25 and$100 a month for cell phones was it was deemed appropriate. Don't quote me on that. But the same is going to happen with internet. It's just again, we should have expected this one because you have to pay for everything else an employee does that you have that you make them use. If you make them use their own lipstick, then you have to pay them for a portion of a lipstick. You make them use your own cell phone, you pay for their cell phone, you make them use a notepad from their diaries, you have to pay for that notepad. I mean, anything you require them to use that you don't provide in the what is it, the fancy word for carrying out their duties and in the course and scope of their employment, you have to pay them for. So we kind of should have expected this coming, especially with the post-COVID um, you know, rampant at-home work. And then, you know, five years later is not surprising given how fast, and I use that very facetiously, how fast the government works to make new law.
SPEAKER_00:Ryan, you really sound mad about taxes this year. Um here's one uh that is effective January 2026, which is actually a good one by California. Uh, California is banning stay or pay provisions in contracts. Um, so a lot of uh companies are very predatory, and what they do is they tell employees that we're gonna train you, but if you leave before a certain amount of time, you're gonna have to pay back um training uh you know supplies or the cost of training or or whatever it is uh you know for a certification if they paid for you to get one. Uh, you know, you they they could say you have to stay here for two years uh or pay me back. So now after January 1st, that's illegal in California.
SPEAKER_01:Not surprising. Pretty soon employers you don't have to handcuff themselves to a desk if employees' direction until they get paid, until they do what they want, take all the breaks they want, do anything they want, get up to work. Right. I mean, we're again this this podcast is really for entertainment purposes, and I can rant about what I see in the course and scope of my work. And you see the craziest lawsuits, a lot of them are valid, but a lot of them are also invalid because they're either predatory on behalf of attorneys or because you know, shakedown from a person who's trying to prove a point or make a you know, make a principal, principled argument. At the end of the day, like this has to stop. It has to stop somewhere and it won't because it's California, and that's just how California is. But I mean, at a certain point, you're not gonna be able to work in California without insane insurance policies, which they probably won't sell to cover you for the like any you do the wrong thing at the wrong time and then you know you lose your third child. Like what it's just it's crazy.
SPEAKER_00:But what about like let's say there's like a predatory company? Because like there's companies that you know will pile 20 kids, teenagers into a van over the summer and make them go around a neighborhood and sell newspapers or knives and stuff like that. And you know, you have these types of companies that basically their business model is just to shake down their own employees. And I think this is probably more uh targeted towards that. I think Ryan, what what you're talking about is probably also very valid. Well, not probably it is very valid, but you're probably talking about, say, companies that are spending a lot of money to pay for certifications for uh you know high-level employees who will just leave. And I think that's that's a very valid concern.
SPEAKER_01:Well, well, it's just exactly you're right. Like obviously, I'm completely against any business that takes advantage of his employees or harasses or you know, discriminates or retaliates against employees. Like that, anybody should be against that. Anybody who comes up and says, hey, I'm for retaliation and I'm for sexual harassment, I mean send them back to the 1950s where that was okay. Like, none of that's okay. But like at the same time, just like I say about lawyers, like I don't like good law, or I don't like good lawyers getting punished for being creative or for doing their job, but I do like seeing bad lawyers and predatory lawyers getting in trouble because it makes us lawyers, the good ones, look bad, you know, bad Apple, bad bunch. So what I'm trying to say, and I'm not doing a good job of saying it, is that I want to see um the enforcement of the law, like in the nature and the intent of the law, not for a creative attorney who is doing it for his or her own personal gain, as opposed to helping the the general public or the clients to take advantage of a law, you know, again for that for that monetary thing. So with your kids in a van example, because that was actually a thing in my college when they say, oh, we'll give you 200 bucks a day if you paint roofs or paint houses. Like if you did that, then yeah, there's probably a lot of employment violations there. But you know, at the end of the day, that you kind of expect that with that kind of employment. If you're working at um like in a business context, you kind of expect to not have to pay out of your pocket for things, but don't tell me you don't want to come into the office and then you want to work at home, but then I have to pay for you to work at home. So it's kind of pay for the internet.
SPEAKER_00:Yeah, I think it's it's it's very difficult, I think, because uh there's such a balance uh as the state, you want to protect the employees um from getting taken advantage of because uh how easy it is to scare people who are say like illegal immigrants or undocumented, I should say, um, or you know, just people or younger people who might need a job, uh seasonal work, things like that, and overly legislating every type of uh non-formalized work out of the economy. Um, but California does allow like people to be street vendors and things like that and not have to set up well, that's the funny part about California.
SPEAKER_01:In my example, I don't know the laws, like the exact laws, but there's there's a law in California where you can't disturb like an encampment on the sidewalk, but you can get a ticket for parking on the street next to that sidewalk. Yeah, so it's like you can camp out on the sidewalk, but you can't park two feet over to the left of it. Again, crazy. I understand again the the differences of public and private property, and I understand the differences of enforcement and whatever, but still, like this California is just it's insane.
SPEAKER_00:Let's see, what else do we have? We have here is probably one of the most burdensome laws uh that I've come across, which is the California workplace violence prevention plan uh law that came into effect a couple of years ago now. Um, and uh I don't know, you don't hear a ton about it. Um, it's like a glacier because below the surface, it seems like there could be a lot of uh potential litigation coming for companies. So, Ron, do you want to explain a little bit what this uh workplace violent prevention program is and and why companies need it?
SPEAKER_01:Um sure. So my understanding of the workplace violence prevention act is you're required for certain certain employers are required to take logs of certain activities that happen in the workplace as a broad stroke. Um, and that the new laws that are coming into play are actually increasing the enforceability and the the I guess the teeth to that law to make it more well cynically, to make it more um palatable for attorneys to take these cases and for more for the government to get more money uh through its attorneys or through using private attorneys instead of the understaffed government. But um, so yeah, some some of the changes are um I guess did you say 553?
unknown:Or no?
SPEAKER_00:I don't think I said it, but yeah, SB 553 was uh the name of the uh whatever the bill. Right.
SPEAKER_01:Uh and then uh so so the first one is being um you can be you can receive a penalty of$25,000 per violation if uh if a qualifying employer or an employer who's subject to these workplace violent protection laws fails to log five separate incidents, um which obviously in a bigger complex.
SPEAKER_00:No, no, that's per incident. I think it's uh up to I think the the notes were up to five incidents, it could get really expensive. I think uh was was the point. I think it's$25,000 per incident.
SPEAKER_01:Yeah, per violation. Did I say that wrong? I'm sorry. I said I said per violation, then I then I immediately contradicted myself in the next sentence. That's my fault, you are correct. Um, and then worse if uh if whoever the inspector is, that clearly is not gonna be biased towards the government, finds that you knew about the law and ignored it, and you used essentially willfulness in any way, your penalties can be adjudicated up to 158,000. So again, small beans for California employers who are uh apparently just printing money.
SPEAKER_00:Do you think that this could possibly turn into uh a PAGA claim? Uh, you know, where uh it's a PAGA is private attorney general act, uh, which is something unique to California, where California lets uh private attorneys uh and uh basically prosecute on behalf of the government uh and um the employee at the same time. And uh California takes a big chunk of the fees or uh or the awards, I should say, the damages.
SPEAKER_01:Yeah, so that's what I was alluding to earlier is that so under PAGA, essentially the government is allowed is deputizing um private attorneys like like you or me who essentially bring this case on behalf of the government. And if you if and when you prevail, you take a percentage of those fees and pay those fees to the state. So it's like you're you know, for that one case, you're a deputy uh private attorney general. Um so yeah, you you're right. PAGA is is part of 553. Um and if you fail to maintain your logs, um then essentially you're in violation, um, you're in violation for um each pay period that you're violating. And just to be clear, the statute on that set uh SP 553 is labor code 6401.9. But yeah, so worse, again, Paga, if you have let's say 50 employees and you have one violation, that means every pay period you have 50 violations. So if you have again 10 pay periods, now you have 500 violations. And again, the penalties per violation, um, here for Paga specifically, the penalty for violations are 100 per employee per pay period. So again, if you do a full year, let's say an incident happens on January 1st and you don't log it. Um, either you don't keep a log for the year, you know, 26 pay periods over the whole year period for 20 employees at 26 weeks, again, 26 pay periods, at$100 a person, that's$52,000 in penalties plus attorney's fees you're gonna have to pay. So these these penalties add up quickly and really are hard to dispute. I think that's per the purpose of PAGA too, is that PAGA applies to wage and hour claims. So, like if you as an attorney, you can look at a wage and hour statement and see that it does or does not contain one of the nine or eleven things that are required to be on that pay statement. So this is just one of those things where you can easily find a log, you can easily find if they complied or not, and you can easily then have a lawsuit for PAGA to be a, you know, and use that leverage to get a bunch of money. And I say you being the attorney or the state is the person that isn't gonna give any of that money.
SPEAKER_00:But they're they're not important, they're just a vehicle or a vessel um for uh the the uh the arm of justice. But we're finishing up uh part one right now, and part two, we're gonna get deeper into the workplace violence prevention program thing. We're gonna tell you uh the things that you need to do and the documents you need to keep, uh a little checklist, as it were. Uh, and uh we're gonna tell you some incidents uh that you That you might not thought would have fallen under the purview of this program. But I think we're gonna go to commercial. We wanna thank our sponsors, um Ryan Ellis Law Corporation, and awesome lawyer in San Diego. I've uh no affiliation with uh and uh anyway. Uh two we have a photograph yet. No, we haven't used it. I don't know. Um I've never actually listened to the podcast after this. No idea. I think we're probably repeating stuff we talked about before. Um, but anyway, um yeah, we still owe a company handbook episode, right? We're we're gonna that's like a you know we have like an inside joke.
SPEAKER_01:I also don't listen to the podcast. I don't mean um, but no, we we did make some promises at the last one, so we'll have to follow that back up.
SPEAKER_00:Okay. I remember I promised some lady something, but lady, I don't remember. Um okay, so workplace violence prevention program. What should we do first? Should we talk about um situations that are gonna fall under this, or should we talk about the stuff that you need to do and have and da-da-da-da, all that crap first?
SPEAKER_01:Which one is funnier and more cynical to talk about?
SPEAKER_00:I would say, oh God, because people are gonna stop listening in about 30 seconds. Let me do the examples because those are gonna be funnier. Okay, let's do it. Okay, first example. Um, I don't know where it is. You read it off your paper while I look for it. Is it the slack one? Uh yeah, I think that one's good.
SPEAKER_01:Okay, so let me give you an example and you tell me what the mistake is and what you do about it. So you have two employees, they're fighting. One of those employees sends a slack message to the other one. You better watch your back in the garage tonight. Now we're gonna assume that there is an actual garage at the workplace.
SPEAKER_00:Okay, that's fair.
SPEAKER_01:And he's not you know stalking somebody, so let's go to the stalking part of it, let's carry the assault and battery um that could happen in a private garage. Talking about at your auto shop, one of your employees goes from the car to this computer to put a slack message to his coworker and says, You better watch your back in the garage tonight.
SPEAKER_00:Yes. Go. Well, obviously, this is gonna be an issue that you're gonna have to uh log in this thing, um, in this violence prevention program log or incident log, I should say. Uh, and then you have to put a copy uh of this uh of this log page or whatever in redacted form into the employees personnel file so uh it can get uh get reviewed by them later.
SPEAKER_01:So well, but what's the difference of keeping it only in the personnel file versus putting it in or on the violent incident bug?
SPEAKER_00:I think you have to do both. I think if you keep it only in the personnel file, it doesn't get counted as in the safety audit when you have to do a safety audit of uh a yearly safety audit of your effectiveness of your workplace violence prevention program, which I'm sure doesn't take any time at all, um, on top of all the training you have to do. Because if you don't train your employees and something like this happens, then you're probably on the hook for willful um conduct and you're looking at that$158,000 fine.
SPEAKER_01:Yeah, and I think this this just is a reminder to not throw away your basic HR instincts. Like if if I if my my garage employee walks to the computer and threatens another employee on Slack, that clearly is an HR issue to deal with, and you should probably keep that in the file, the employee's file, right? But then now you just have that additional requirement of logging it and keeping a redacted version that employees can look at. Employees can look at, which again is is gonna be so much fun for talking at the uh at the water cooler, and it'll be so good for morale when when I want to use a name, but I feel like using a common name is gonna get us some pushback. But like when Peter from accounting goes over here and starts saying, Oh, hey, did you hear about the the complaint where somebody did X X to Y? Like I want, and then it's just gonna start a whole drama fest. So yeah, this is gonna be a fun one to see how this evolves in the courts.
SPEAKER_00:Yeah, absolutely. But if you're the plaintiff's lawyer, you're gonna say, Well, look, like you knew about this and you guys were supposed to keep a log and you hid it, and maybe my employee should have known to stay away or whoever. You know what I mean?
SPEAKER_01:It just agrees. But at the same time, I mean like that's a very valid point. But at the same time, if if the names are redacted, like Brutus assaulted Peter on Slack and you don't know it's Brutus, you don't know it's Peter, your employee, your your potential plaintiff would only know to stay off of Slack, but wouldn't know to watch out for Brutus, who's apparently trolling the garage at night to beat up people, yeah. You know what I mean? Like I get why it's redacted because you don't want to you don't want to have all of that out there. It's it's supposed to be kept confidential. But then if you're gonna have a violent, um, a violent incident log that's public, you know, quasi-public to your employees, like what benefit does that provide? Like meaning what proactive benefit does that provide to a potential, there's lots of alliteration with P in this sentence, to a potential plaintiff who is may or may not be concerned, or maybe had a personal issue with Rutis and didn't want to report it, but know it's gonna happen again, happening again. Like what as like a point of discussion between us, like what I don't understand, I don't understand that.
SPEAKER_00:It just complicates everything way too much uh by having to keep these logs, I think, available for everybody to look at because it's just gonna cause so many just questions to be asked and wondering, you know, what's going on and what could be the cause of this. But um, yeah, at the same time, I mean it's it's easy to see how a jury could want to keep a company uh liable for hiding the fact that there's been lots of violent incidents at a company from the other employees. JP's raising his hand.
SPEAKER_02:Yeah, I think I mean there's so many tangents that this can go off on, but one of the things is I think this is a very short-sighted win for the plaintiffs because in the longer you've now uh established uh a written record that most people don't actually keep for a legitimate basis for termination. So you're no longer gonna have as many wrongful termination cases because you're gonna have a log of all the times that people potentially actually made threats against them, even though they didn't act on them.
SPEAKER_00:Yeah, and that that's very true. I think a lot of problems we have with plaintiffs, uh plaintiff cases that we'll have a plaintiff client come to me and say, you know, uh I was threatened by an employer or you know, I was punched at work or something, and and there's really nothing uh that that we could do. I mean, you could have negligent hiring or negligent supervision and things like that, but um now uh if the employee doesn't or employer doesn't log the incident, uh they could be looking at$158,000 in fines. Um so uh you know that that also helps you as a as a plaintiff's attorney uh to prove uh that the employer didn't take it seriously, the incident that happened to your client, and now there's gonna be a way to hold them accountable for it.
SPEAKER_01:Yeah, and I guess as a defense lawyer, it give it just makes more billable events for me. Yeah, no, it works out for it. Let me help let me review your policy, let me let me review your log. I mean, then I guess maybe that too, though. If and this is this to me is like the log is like the um the posters in the break room that no one looks at, like, oh, this is a minimum wage, this isn't the rule, this is what you have to call for the emergency, all that crap. Like, yeah, it's required, but no one really like looks at them, right? So my my thought is that if no one looks at it, there's no point. One, but two is if someone does look at it and they see, like, let's say, you know, you hire employee and it's their first day, and they meet everybody, there's 50 people in there in an office, a bunch of computers, 50 people are in the in the office with them, whatever. The employee, you know, everybody goes to some birthday party, so employee is like, no, I'm gonna stay here and work over lunch or just hang out by myself in the lunchroom. Employee B or employee A sees this log, it just got hired, and there's like just voluminous records of like violent incidents or incident reports. Like, what are you gonna like? What do you do as an employee? Now are you worried about being in like is this gonna create apprehension for an employee?
SPEAKER_00:Yeah, I would think if there was a whole bunch of incidents, it definitely would. But that's one of the other things is that um, you know, what yeah, what what is the whole point of this? Uh and and why did this come up? I don't understand really why it became necessary for there to be a uh published log for all the violent incidents. It doesn't really make a lot of sense. Um, but we want to talk about maybe a couple other scenarios or uh scenarios of what could be reportable. Um, let's say you're at a coffee shop, Ryan, uh, and you're the manager and uh one of your employees comes up to you and says, Oh, you know, I got yelled at by a customer who slammed his hand on the counter and and told me they were gonna come kick my ass. Is this something that falls under the workplace uh violence prevention program incident log?
SPEAKER_01:Yeah, it does. Um I think there's a specific number category for this, but I think so. Um you need to report it. And if you don't, you're subject to penalties. I mean, this is this kind of goes to the whole, I don't know if laughable is the right word, but like, you do you think that someone is gonna be able to remember all of these incidents, especially in like high pressure jobs like sales or coffee? I mean, I'm a I don't go to Starbucks or any other coffee shop in the morning anymore, but I would assume that people who don't have their coffee are very irritable in the morning and maybe are uh very brutal, brutal with their words and and potentially threatening because of it if a coffee is wrong that they pay$13 for it. So I mean, I would think that if that happened three or four times in the morning, like who's gonna report that to your manager? The manager's gonna have to put that in the law, like that seems very unproductive. And I and you can't do it after business hours in California because what happens then? Overtime. So it's like there's there's just so much here that seems like it's almost like a trap. It's almost like an unenforceable trap.
SPEAKER_00:Oh, absolutely. I mean, I think part of the thinking is that this gives employers like an ability to say, oh, look, we logged it, so we took it seriously to take the legs out from under some of these he said, she said claims when let's say there's an investigation that the employee didn't like the uh outcome of. Uh, I think that that's really something that the employer could be like, well, look, we we did do an investigation, we did look into it, they're lying because look, here we wrote it down on this log. Brian, why don't you give us an example of a recent lawsuit that uh you just happened to have in front of you?
SPEAKER_01:Thank you, Arta, for that. Surprisingly, I have one right here. It's uh Espinoza versus Target. It's an ongoing case uh in uh Los Angeles County here. There's a ruling in February of 2024 where the plaintiff alleges that Target acted unfairly and unlawfully when Target denied plaintiff a safe shopping and work environment, denied him the benefit of a legally mandated workplace violence protection program, and the ability to abate illegal and violent activity, such as detaining a potential violent patron from entering the Target's store, which also prevented the plaintiff from the ability to obtain a restraining order, and being able to deny himself the right to defend from criminal activity and report it, which then, as a result of all of that, caused an unsafe work environment for that plaintiff and others. Um, so there's there's the it sounds like to me low-handed proof claim is that because you didn't have the policy, again, this is all before the new laws, but because Target didn't have or maintained their workplace violence protection program, that the plaintiff was subjected to some sort of injury, which then could have been prevented and should have been prevented, but for the existence of and maintenance of that violence protection program. So um again, I I don't know how a California business or any business for that matter is going to be able to hire somebody to just walk around with their clipboard and report everything and then keep for companies like Target a very voluminous, probably electronic, which is probably illegal too, electronic means of keeping all of this in order. So if anybody wanted to review it, they could and again prevent themselves from being harmed. But again, it's redacted.
SPEAKER_00:So what are you gonna know?
SPEAKER_01:Like, what is the plaintiff gonna know? Is they gonna know that 55 different times within X, like no the last two months, uh somebody was attacked at the register?
SPEAKER_00:Like I well, here I'm gonna give you another example of what could happen if your target. Um you have an employee who has say an abusive ex show up to the parking lot to argue with them, and the employee leaves the store to go argue. And you're thinking as a manager, well, what the hell does that have to do with me? It was outside in the parking lot, it has nothing to do with work. It's just one employee like basically taking like a break, 10 minute like, go, I don't care what you do on your break. What if you go argue on the phone on your break? What the hell? But it must be logged. Violence committed by someone who has a personal relationship with employee is type four violence. It must be logged. So by failing to log it, you're essentially, I guess, under you know, what the law is considering uh failing to kind of secure the perimeter. If he comes back, the ex-boyfriend actually hurt someone, the plaintiff's attorney is gonna say, okay, well, you knew about this threat. Like, you know, why didn't you do something about it? Why didn't you notice her going out again or whatever it is? Where is this log? Now you're in trouble. But like I said, like what I don't know what the line is. If she's on a private call, or how are you supposed to know? Does she have to come and tell you like that there was an issue with her boyfriend? Or is it something that, like, you know, you're the manager and now you have binoculars from 150 feet away and she's gesticulating, and you're like, Well, I can't hear what they're saying, but it looks like a fight. So do I now have to like stop her and be like, hey, were you fighting with your boyfriend? And she's gonna be like, Well, what is it your business? And you're like, Well, California says it's my business. So, you know, this is, I think it's gonna cause a lot of problems. Yeah, agreed.
SPEAKER_01:I mean, I I guess like practically, so so all jokes obviously a lot of this is ranting and joking, but like practically what has to happen or what your policy should say is that if you experience workplace violence, you must immediately report it to your supervisor or manager or HR or security or somebody else, giving them giving that person you're reporting to as much detail as you can of what you observed or experienced so that management can report it. I'm sorry, management can document it and put it in the required log and you know take action as necessary. So practically, this will not work. But but like it's one of those things where you experience it, you have to report it. And then, which then again begs the question of well, if you don't report it, does the employer know about it? And then which also begs the further question. Constructive notice, which we had another episode on. Constructive notice, as you have good plug, but also ratification when it comes to willfulness and punitive damages. So, like in your same example, if that employee outside is on the phone call and experiences something outside, let's say it's an ex-boyfriend or ex-girlfriend or ex-partner comes over and and I don't know, does something violent, says bad words, physically touches, pushes, hurts, whatever, and that is not logged, like at what point in time does the manager have to step in if they see something? At what point in time does um later on when that if that same situation happens again and the plane that the person outside of the employees actually hurt and they sue the employer, does that constitute punitive damages because the employer knew or should have known? Or if they didn't have a policy, does that automatically create ratification of whether or not they were if they didn't ratify, I'm sorry, ratification date where they actually ratified that conduct by not having the policy or not reporting it, which then subjects the employer to punitive damages.
SPEAKER_00:Well, this is the joy of judge-made law. Um, because that that's one thing that that people don't understand is that we're all kind of just uh, you know, fodder for this machine. So the way, in my opinion, the way that the judicial system works in the United States is that all 50 states have, you know, their own judicial system uh that deals with similar issues after 20 years, 30 years, 40 years of say uh laws uh about the same issue with competing ways of dealing with them are looked at, then maybe it'll go to an appeals court um in the uh federal circuit to decide what's the best way to handle an issue like marijuana or something like that. But that's very unsatisfying for the people who are left as the mulch from the machine grinding up everything to figure out the best way to do things.
SPEAKER_01:Yeah, agreed, and that's very well said is that this is going to evolve very slowly by judges' decisions, by appellate court decisions on those judges' decisions, by the state Supreme Court decisions on those appellate courts' decisions, on those state court decisions, uh, and possibly the federal supreme court, depending on how bad it gets. But um, yeah, I mean it's gonna be interesting. And then then you'll have California stepping in next year or the year after, codifying some of those decisions that they liked that the government liked into law, and then it evolves from there. Um, but just to kind of, I don't know, if you want to go over more examples, I want to go over uh what the employer should do.
SPEAKER_00:Yeah, yeah, yeah. We got to talk about that. Um, also uh workplace violence prevention program, just quickly, you have to go on to the California Department of Industrial Relations or some website that California has and download the template and then customize the template to your business. You can't just download it and sign it. You have to go in there and actually customize it and talk like if you don't put like the door is on the east side of the building and there's like an access point, da-da-da-da-da. Like you're not gonna conform. You gotta go find a lawyer. Actually, I know where you can find a lawyer to help you with this. I can't remember the name. Anyway, part three coming up. And we're back. We're just gonna quickly tell you the stuff that you need to do if you're a business um for this workplace violence prevention program, because that's the only thing I can think of to do, and we want to get the hell out of here because we're getting bored.
SPEAKER_01:Not bored. I mean, there's the problem with these podcasts, is like you we have to balance. This is like behind this is the behind the fourth wall for you listeners. Well, I'm sorry, you listener out there. Yeah.
SPEAKER_00:Hi, Ryan's mom.
SPEAKER_01:Is like we we we want to be informative and we want to give practical advice for entertainment purposes. We also want to be funny in a way that you'll want to listen to this third segment.
SPEAKER_00:Yes, somebody please hire us. We're for sale. Like, I know nobody's listening at this point, but if you're in a company and you want somebody to shill for you, we're here. We're lawyers, we're not like moral good people. Like, come on. I'm I'm joking, I'm joking. My mom's gonna send me a nasty second. Uh okay, so let's talk about the stuff that you need as a business owner uh so you don't get in trouble in California, even though you're gonna get in trouble anyway. But here's the stuff that you need so you get in less trouble.
SPEAKER_01:Yeah, I think uh I think you hit on the first, um, the first part of it, which is having the policy by itself. And what is that? Well, obviously, I think you should, if you don't already, you should consult an HR professional or or a legal professional to do that for you. Um, Arta mentioned the template in the last segment, and that template I've seen is very, I mean, it's very blank. It's it's not even a skeletal template, it's more of like insert your diagram of your business here. Insert this, if this happens, insert this here. It's very basic, so you really need to fill it out. It's definitely not a uh like a turnkey thing. I mean, it gives you very small guidance, but you have to actually do it.
SPEAKER_00:It's gonna take a long time. It's gonna take you a really long time.
SPEAKER_01:Yeah, well, hopefully the people are listening to listening to this podcast know that you know there's something you have to do. It takes a while. You know, good HR policies take time. Um, if you're not an HR professional or legal professional, then you need to get one. Um, but after you have the policy in place, make sure it's conveyed to your employees.
SPEAKER_00:You gotta do training, like actual live training where they can ask you questions about what to do. Like this isn't something where you can just be like throw it on their desk and say, Hey, uh, figure this out. Uh my responsibilities end here. You actually Actually, have to give them like real, real training, not just a video.
SPEAKER_01:Why do you say they have to?
SPEAKER_00:Because that's what the law says. I know. I tried into that one. There you go.
SPEAKER_01:Because if you don't train them, then they're gonna say they didn't know about it. It's the same as like a sexual harassment policy. Like, even though they sign something doesn't mean that they actually knew what they were signing. And it's always a thing, like, oh, I had to sign it to work here or whatever. So make sure you have a separate rollout plan or a separate like training module for your policy, uh your workplace violence policy, and make sure employees like RSA can ask you questions about it.
SPEAKER_00:I feel like this is also a really good way for insurance companies to be able to tell their policyholders that they did not um meet the standards as required by law and that uh either their policies are gonna go up or they're gonna lose their coverage or just a whole bunch of expenses coming up.
SPEAKER_01:Well, yeah, I mean, and I think you had a good point there, where if you don't follow your violence injury policy, then wouldn't the insurance company want to tell you that they're not gonna pay for this?
SPEAKER_00:Exactly. Yeah.
SPEAKER_01:So another reason for insurance companies to get bigger while employers flip the bill.
SPEAKER_00:Also, you have to annually um visit uh every site in your company and review every incident that happened um and uh and see if your plan worked. Uh, and you have to sign a review sheet. And if you don't do that, you are not uh checking the plan, and that's negligence. So this is what we need to do. Uh you need a written plan. You can't use a generic template. It needs to be customized with site-specific hazards. Like if you have a liquor store that people may come in and rob you, if you have a logistics place, um, that uh maybe uh there's like a fight club after work with all the employees, you know, something cool like that. I don't know. I'm just trying to come up with it.
SPEAKER_01:Oh, I mean it's very relatable. It's cool, right? Very client relatable. But and then so also in addition to having every plan, in addition to clear that violates rule one of the fight club.
SPEAKER_00:Oh, talking about it? Yeah. Oh, now I gotta like punch myself or suspect.
SPEAKER_01:And so aside from having the actual plan and reviewing it and making sure that you know you go through and audit it, you need to have an incident log. I know we've mentioned it in our in our obviously hilarious examples, but you need to have an incident log um and you follow the privacy rules, make sure you don't disclose personal or confidential information in those logs like names. Um and then above and beyond that, um, making sure you're training, making sure that you're uh you're letting the employees ask you about it and that um and giving you input on the plan.
SPEAKER_00:If if they feel like you gotta do something and you don't listen to them, and later on they said, Well, um, I told them it's not a good idea uh to have like a whole bunch of access hanging over me when I'm working at the register, um, and you're like, no, that's that's totally unreasonable for you to say that. And then access fall, you're gonna be in trouble.
SPEAKER_01:Um like California, uh especially California employment law, uh, it's always access. So as a if you are a manager or hiring a California employee and a California business and you are not constantly worried about what's what loss you're gonna face next, you're probably not doing your job right.
SPEAKER_00:Yeah, that's true. And we have nothing left to talk about at this point. Um, we except for we want you to hire us to advertise for you. We will shill you to death. Just give us any money. Uh, if the Saudis are listening, the Qataris, uh, any type of government that needs to wash their hands uh of um you know violence or or anything like that, we're happy to work with you.
SPEAKER_01:I cannot electronically rub my like head or my forehead in disappointment, any hard or what is it called?
SPEAKER_00:Sports washing? We can do podcast washing for like dictatorial government.
SPEAKER_01:So how did so uh just Pete Davidson going and doing his the comedy work and really Mr. Wildborough, how did you get in touch with the with the Russian government? Um my podcast?
SPEAKER_02:Get out of here.
SPEAKER_01:See, no one will believe it.
SPEAKER_02:So it works.
SPEAKER_00:Next time uh a journalist gets cut up into pieces in Turkey, look for me.
SPEAKER_01:It's Turkey now.
SPEAKER_00:Oh, is it? Did they change the name? We're gonna have to really just scrub that whole part. Uh let's see. One, two, three. Thank you everybody for listening. No, we'll leave it in. Oh, the whole part. No, not Turkey. No, no, no. I'm Persian, not Armenian.
SPEAKER_01:No, I know I was so confused. Like, oh my god, that was bad.
SPEAKER_00:All right. We're gonna have to. Okay, start over. Go ahead. No, okay, we'll just leave it all in the okay. Thank you everybody for uh listening to us. Uh nobody's listening this far. There's no one. If anybody listens this far, I will give you a hundred dollars. If you email me arda at wildeborleegal.com and you say, let's see, what Enrico Palazzo, email me the name EnricoPalazzo to Arda at Wildebor.com. The first person who emails me will get$100.
SPEAKER_01:Arda at wildeborlegal.com.
SPEAKER_00:Oh, yeah, my bad.
SPEAKER_01:First person email you got a buck.
SPEAKER_00:Arda at wildeborlegal.com at$100.
