A discussion of the newly enacted New York Retail Safety Act which will task New York State retailers with protecting employees from violence in the workplace.

On Sept. 4, 2024, New York Governor Kathy Hochul signed the Workplace Violence Prevention Law (Labor Law §27-e) (the "Violence Law"), which requires employers with ten or more retail employees to implement a written violence prevention plan and correlated training; and employers with 500 or more employees to install panic buttons.

The Violence Law applies to any "store that sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises," thus excluding restaurants and delis which also sell food products." Assuming no successful legal challenges, the first requirement will go into effect on March 3, 2025, whereas the latter will go into effect on Jan. 1, 2027.

The Violence Law reflects the New York Legislature and Governors' efforts to expand the reach of its state-level employee protections. New York has a state plan for OSHA, but it only covers public employees. New York's worker protection laws impacting private employers have been established outside of OSHA. For example, in 2021, in response to pandemic workplace infectious disease risk, New York passed the Hero Act, which requires private employers to adopt and publish an "airborne infectious disease exposure prevention plan." Labor Law §218-b. Governor Hochul also has antiviolence initiatives in areas including school violence, domestic violence and hate crimes. 

A number of states have passed workplace violence laws. However, only California and New York have passed laws with coverage outside of the health care industry. Other states have pending legislation.  

The New York Department of Labor (NY DOL) will publish a model written plan for the Violence Law. Employers must either adopt the model or create a plan which incorporates all of the minimum requirements of the model plan. NY DOL also will create a model training plan, which employers can choose to either adopt or customize.

The training must be interactive, and must communicate specific locations for meetings and emergency exits within a building. It also must cover topics including the Violence Law itself, protective measures employees may take, de-escalation tactics, active shooter drills, emergency procedures, and instruction on the use of panic buttons, security alarms, and similar safety measures.

Employers may be able to substantially rely on NY DOL model notification materials when providing copies of their violence prevention plans to employees in English and their primary language.  If New York does not publish a model plan in an employee's primary language, the employer is permitted to give that employee a plan in English. 

It is interesting to compare the California law to the New York law. The California law contains less detail on the specifics of the written plan. Consistent with the hazard assessment approach contained in the pre-existing Illness and Injury Prevention Program legal requirement, California employers must assess the ways in which their employees could be subject to acts of violence or the threat of violence and mitigate those hazards.

Active shooter training and panic buttons are not required, whereas the NY Violence Law requires such steps. The California model plan is a template that must be filled in with specifics. The NY model plan can be adopted in full without modification. For nationwide employers, the California and New York plans are not interchangeable.  

Large New York employers who have the obligation to install panic buttons likely will find this requirement challenging. The Violence Law gives employers the option of either placing a physical panic button in one or more "easily accessible" locations within a retail location, or of providing wearable or phone-based panic buttons to every employee. 

The first option is relatively affordable as compared to the second, but may be seen as less practical or effective for many retailers. Unless an employee is standing next to a panic button when a violent incident arises, employees may be unable to safely reach the panic button(s). The Department of Homeland Security (and other agencies and training resources) instructs that the hierarchy of actions in an active shooter situation are evacuate, hide out, and take action against the shooter. This is commonly referred to as "run, hide, fight." Reasonable minds can differ regarding the suitability of a stationary panic button in an active shooter situation, as the employee may mentally add "find the panic button" before run-for-the-exit, which could create unacceptable additional risk.  

Wearable panic buttons and/or an application on a cell phone may be safer and more practical, but also much more costly. If a phone-based option is utilized, the employer must provide a company phone to each employee—personal cellphone use for this purpose is not permitted. Logically, the technology should contain tracking capabilities so the employees wearing the buttons can be located should an emergency arise.

However, the law prohibits tracking the employee's location unless the panic button on the device is activated. Moreover, small wearable devices may be prone to becoming lost (and will not be traceable) or activated accidentally, potentially far from the worksite. Employers seeking to implement the wearable tracking option should conduct a careful analysis of available technologies and cost before deciding how to proceed.

The Violence Law does not contain a private right of action. NYS DOL is responsible for enforcing the Violence Law and will be promulgating implementing regulations. 

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Reprinted with permission from the October 16, 2024 issue of New York Law Journal. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.