Employment Training, Practices and Procedures

In a stinging rebuke of the Trump Administration’s attempt to remove burdensome regulations on employers, Judge Tanya Chutkan, a District Court judge in the District of Columbia this week reinstated the EEO-1 “Part 2” wage data/hours worked reporting form for all employers who file annual EEO-1 demographic reports with the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor. (This includes all companies employing more than 100 people, or 50 people if they are a US federal contractor.)

This new data collection requirement, launched in 2016 by the Obama Administration EEOC, and strongly opposed by employers and employer advocacy groups such as the U.S. Chamber of Commerce, will require employers to provide aggregated pay data and a summary of hours worked in 12 defined pay bands for each of 10 EEO-1 job and 14 gender race and ethnicity categories. This first-of-its-kind data compilation will require merging information from both HR and payroll systems—not an easy task. This was one of the burden arguments raised by the employer community along with the limited usefulness of the data and the challenge of merging the data accurately to fit the new pay bands.

The EEO-1 Part 2 requirements were promulgated by the EEOC through the normal administrative process and were approved by the Obama Administration’s Office of Management and Budget (“OMB”), the gatekeeper for all federal regulation. The Part 2 form was on the cusp of being implemented when the Trump Administration OMB announced in August 2017 it would review and stay the process. OMB stated it would revisit the burden arguments raised by employers, but provided scant analysis or explanation for the renewed effort.

Two advocacy groups, the National Women’s Law Center, a Washington D.C. based group, and the Labor Counsel for Latin American Advancement, sued OMB and the EEOC to reinstate the data collection requirement. In its ruling this week, the Court chided the Administration for failing to provide any factual or legal support for staying the previously authorized form and ruled the stay illegal. It also opined that overturning the stay would not be disruptive to the employer community since employers were on notice in 2017 and were aware that the stay could be lifted at any time!

Interestingly, the Court found that the plaintiffs would be harmed financially without access to the new data. The plaintiffs’ argument was simple, the promised data would aid their missions of advancing gender and ethnic equal pay initiatives. Without the pay data, they would have to spend their own resources compiling the data themselves. This was sufficient justification for the Court, but could set a dangerous precedent for advocacy groups to use against the government in the future.

The EEO-1 filing deadline this year is May 31–only 12 weeks away. It is unclear if the EEOC will require employers to submit Part 2 data or set a new schedule for submission. We will be following the issue closely, but it would be prudent to review any processes built for this data collection and review your data for accuracy.

On March 6, 2019, the 20-year business partnership between celebrity chef Mario Batali and the Bastianich family of restaurateurs, Batali & Bastianich Hospitality Group, was formally dissolved following allegations by several women more than a year ago that he sexually assaulted and harassed them at his restaurants years earlier. Tanya Bastianich Manueli and her brother Joe Bastianich have bought all of Mr. Batali’s shares in the restaurants. As a result, Mr. Batali has been fully divested and will no longer profit from his former restaurant group, and his name already has been removed from the group’s website. A new company (not yet named) has been formed to replace the now defunct Batali & Bastianich Hospitality Group. Ms. Bastianich Manueli will run day-to-day operations at the new company.

Batali’s exit from the restaurant group more than a year after the sexual assault and harassment allegations highlights that allegations of sexual harassment in the workplace can have a long-lasting, deleterious effect on business and, undoubtedly, on morale. The Bastianich family’s move to separate itself and its restaurants from Mr. Batali and the sexual misconduct of which he was accused also signals to employers in the hospitality industry that they are not yet out of the spotlight when it comes to sexual harassment awareness and prevention. As noted in our February 25 post, attempts to target and reform working conditions in the hospitality industry continue to develop and two states – New Jersey and Illinois – recently proposed legislation that would require restaurants to adopt a sexual harassment training policy and provide anti-sexual harassment training to employees. Several states, including New York and California, already require all private employers (of a particular size) to provide sexual harassment training to their employees.

Given the attention that Mr. Batali’s divestment from his restaurant group has drawn and the ongoing efforts to address sexual harassment in the workplace and in the hospitality industry, in particular, restaurant-employers should consider implementing a sexual harassment policy and training program now. To that end, Epstein Becker Green’s Halting Harassment – an interactive, computer-based training platform – offers an easy solution.

In the New Year, two states – New Jersey and Illinois – have proposed legislation requiring restaurants to adopt a sexual harassment training policy and provide anti-sexual harassment training to employees.  While it remains to be seen whether these bills will become law, attempts to target and reform working conditions in the hospitality industry are nonetheless noteworthy, particularly given that unlike New York and California, neither New Jersey nor Illinois have enacted broad legislation requiring private sector employers, regardless of occupation, to provide sexual harassment training to staff.

New Jersey Bill (A4831)

New Jersey Bill A4831 requires restaurants that employ 15 or more employees to provide sexual harassment training to new employees within 90 days of employment and every five years thereafter.  This training requirement would go into effect within 90 days of the law’s effective date.

As to the content of the training, the bill specifies that supervisors and supervisees receive tailored content relevant to their positions/roles that include topics “specific to the restaurant industry” in an “interactive” format, including practical examples and instruction on filing a sexual harassment complaint.  Implicitly recognizing the diverse nature of the hospitality workforce, the bill requires that such training must be offered in English and Spanish.

The bill would also require restaurants to adopt and distribute sexual harassment policies to employees (either as part of an employee handbook or as a standalone policy), though it does not prescribe the contents of such policies.

While the bill cautions that compliance with the act would not “insulate the employer from liability for sexual harassment of any current or former employee,” strict compliance is advisable as the bill creates fines for non-compliance – i.e., up to $500 for the first violation and $1,000 for each subsequent violation.

Illinois Bill 3351

Illinois Bill 3351, the proposed Restaurant Anti-Harassment Act, is broader than the proposed New Jersey legislation in that it applies to all restaurants regardless of the number of employees on staff.  Like its New Jersey analogue, this bill requires restaurants to adopt a sexual harassment policy and provide training to all employees.

The sexual harassment policy must contain the following elements:

(1) a prohibition on sexual harassment;

(2) the definition of sexual harassment under Illinois and federal law;

(3) examples of prohibited conduct that would constitute unlawful sexual harassment;

(4) the internal complaint process of the employer available to the employee;

(5) the legal remedies and complaint process through the Illinois Department of Human Rights;

(6) a prohibition on retaliation for reporting sexual harassment allegations; and

(7) a requirement that all employees participate in sexual harassment training.

Like New Jersey’s bill, the Illinois bill requires separate training for employees and for supervisors/managers, and delineates the topics to be covered in each training.  Specifically, the employee training must include: (i) the definition of sexual harassment and its various forms; (ii) an explanation of the harmful impact sexual harassment can have on victims, businesses, and those who harass; (iii) how to recognize conduct that is appropriate, and that is not appropriate, for work; (iv) when and how to report sexual harassment.   The supervisor training must include the aforementioned topics in addition to: (i) an explanation of employer and manager liability for reporting and addressing sexual harassment, (ii) instruction on how to create a harassment-free culture in the workplace, and an (iii) explanation of how to investigate sexual harassment claims in the workplace.  In addition to these requirements, the training programs must be offered in English and Spanish, be specific to the restaurant or hospitality industry and include restaurant or hospitality related activities, images, or videos, and be “created and guided by an instructional design model and processes that follow generally accepted practices of the training and education industry.”

If enacted, employees would need to receive training within 90 days after the effective date of the act or within 30 days of employment and every 2 years thereafter.

Like New Jersey, the Illinois bill contemplates a $500 fine for the first violation and a $1,000 fine for each subsequent violation.

Recommendation

Restaurants should carefully track the progress of these bills and be on the lookout for similar legislative efforts in other states.  Given that a number of states, including New York and California, already require all private employers (of a particular size) to provide sexual harassment training, restaurants operating in Illinois and New Jersey may want to move towards implementing a sexual harassment policy and training program sooner than later.  In that regard, Epstein Becker Green’s interactive, computer-based training, Halting Harassment, offers an easy solution.

Our colleague Laura A. Stutz at Epstein Becker Green has a post on the Health Employment and Labor Blog that will be of interest to our readers in the hospitality industry: “Race Discrimination on the Basis of Hair Is Illegal in NYC.”

Following is an excerpt:

The New York City Commission on Human Rights published legal enforcement guidance defining an individual’s right to wear “natural hair, treated or untreated hairstyles such a locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”   The guidance applies to workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles”:

[W]hile an employer can impose requirements around maintaining a work appropriate appearance, [employers] cannot enforce such policies in a discriminatory manner and/or target specific hair textures or hairstyles. Therefore, a grooming policy to maintain a ‘neat and orderly’ appearance that prohibits locs or cornrows is discriminatory against Black people because it presumes that these hairstyles, which are commonly associated with Black people, are inherently messy or disorderly. This type of policy is also rooted in racially discriminatory stereotypes about Black people, and racial stereotyping is unlawful discrimination under the [New York City Human Rights Law].

A grooming or appearance policy prohibiting natural hair and/or treated/untreated hairstyles to conform to the employer’s expectations “constitutes direct evidence of disparate treatment based on race” in violation of the City’s Human Rights Law. …

Read the full post here.

The New York City Commission on Human Rights (the “Commission”) has adopted new rules (“Rules”) which establish broad protections for transgender, non-binary, and gender non-conforming individuals. The Rules, which define various terms related to gender identity and expression, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law. New York State also just added gender identity and expression as protected classifications under the state Human Rights Law, following the adoption of the Gender Expression Non-Discrimination Act.

The Rules incorporate key pieces of community feedback following a public hearing on the proposed rules. Most notably, the Rules have been updated to explicitly include non-binary identities. Under the Rules, “non-binary” is defined as “a term used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male nor female.” Furthermore, non-binary individuals are now also included in the Rules’ examples section, which illustrates possible violations of the prohibition on discrimination based on gender. For instance, deliberately using the pronoun “he” for a non-binary person who is perceived as male but has indicated that they identify as non-binary and use the pronouns “they,” “them,” and “theirs” is identified as an example of misusing individual’s chosen name, pronoun, or title, along with deliberately calling a transgender woman “Mr.” after she has made clear that she uses female titles.

The Commission has also added a list of terms typically associated with gender expression, such as “androgynous,” “butch,” “feminine,” “femme,” “gender non-conforming,” and “masculine,” to the existing definition of gender expression. Terms associated with gender identity, such as “agender,” “bigender,” “woman,” “gender diverse,” “gender fluid,” “gender queer,” “man,” “man of trans experience,” “pangender,” and “woman of trans experience” have similarly been added to the definition of gender identity.

While the Rules have added some important language, the key takeaways remain the same. As the proposed rules initially laid out, deliberate misuse of an individual’s chosen name, pronoun, or title, refusing to allow individuals to use single-sex facilities or participate in single-sex programs consistent with their gender identity, imposing different dress or grooming standards based on gender, and refusing a request for accommodation on the basis of gender will all be considered violations under the Rules. Additionally, covered entities must provide equal employee benefits, regardless of gender, such as ensuring that the health plans they offer provide gender-affirming care.

The Rules will go into effect March 9, 2019.

Our colleague Kevin Sullivan at Epstein Becker Green has a post on the Wage and Hour Defense Blog that will be of interest to our readers in the hospitality industry: “California Court of Appeal Concludes That Certain Types of On-Call Scheduling Triggers Requirement to Pay Wages.”

Following is an excerpt:

On February 4, 2019, a divided panel of the California Court of Appeal issued their majority and dissenting opinion in Ward v. Tilly’s, Inc. It appears to be a precedent-setting decision in California, holding that an employee scheduled for an on-call shift may be entitled to certain wages for that shift despite never physically reporting to work.

Each of California’s Industrial Welfare Commission (“IWC”) wage orders requires employers to pay employees “reporting time pay” for each workday “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.” …

Read the full post here.

On January 9, 2019, Mayor Bill de Blasio announced his plan to make New York City the first city in the country to mandate that private sector employers provide paid personal time (“PPT”) for their employees. Under the proposal, employers with five or more employees would be required to grant their employees 10 days of PPT to use for any purpose, including vacation, religious observance, bereavement, or simply to spend time with their families. It is unclear whether the proposed legislation would apply to only full-time workers, or whether, similar to the Earned Safe and Sick Time Act (“ESSTA”), it would include many part-time employees as well. The Mayor said he would work with the New York City Council to develop the legislation, and several Council members have already voiced their support for the proposal.

According to the press release accompanying the mayor’s announcement of the PPT proposal, more than 500,000 employees in New York City currently are not provided paid personal time off, including 90,000 retail workers, 200,000 hotel and food service workers, and 180,000 workers in professional services. In his announcement and the press release, the mayor further asserted that: “Every other major nation recognizes the necessity of Paid Personal Time. We as a country must get there, and New York City will lead the way.”

Notably, the press release provided a few additional details of the anticipated legislation, including the following:

  • Similar to ESSTA, the law would contain a “carryover” provision under which employees could carry over up to 10 unused PPT days from one year to the next. And, like under ESSTA, employers would be able to cap an employee’s annual usage of PPT. With respect to PPT, the cap would be a maximum of 10 days per year;
  • Employees would be able to access their PPT after 120 days of employment; and
  • Employers could require employees to provide up to two weeks’ notice of their intent to use PPT. Moreover, an employer could deny such a request if granting it would leave the employer understaffed because one or more other employees will be on PPT leave at that time.

At this point, other details of what mandates a PPT law might contain, such as its applicability to part-time employees (as noted above), are speculative. For instance, while the Mayor’s announcement suggests that entitlement to PPT may be automatic, the press release implies that PPT would be accrued, similar to the ESSTA model. Also, it is possible that employers with fewer than five employers could incur some form of a time off obligation, such as having to grant unpaid personal time.

In light of recent trends to increase time off for employees, what is more certain is that some version of PPT is likely to garner sufficient support from the City Council and, probably sooner than later, become law. If so, most New York City employers will be obligated to afford their employees up to 15 paid days off per year – 10 under a PPT law and five pursuant to ESSTA. Also keep in mind the recently enacted New York City law that requires employers to grant most employees working in New York City a temporary schedule change – or unpaid leave – for up to two business days per year to attend to certain “personal events.” Though this law does not contain a paid time off requirement, it further expanded an employer’s obligations to provide employees with time off from work.

Thus, if past is prologue, employers should pay close attention to the mayor’s PPT plan.

We will keep you advised of any further developments on the PPT proposal.

On January 10, 2019, newly elected California Governor Gavin Newsom proposed funding six months of partial-paid leave for new parents. The plan, which was announced as part of the governor’s budget, would compensate new parents or caretakers up to 70 percent of their wages to care and bond with a newborn or adopted baby. Newsom stated that “public health and economic research shows that providing up to six months of paid parental leave leads to positive health and educational outcomes for children, greater economic security for parents, and less strain on finding and affording infant child care.”

Currently, each parent may qualify for up to six weeks of paid family leave benefits, and a birth mother may qualify for State Disability Insurance pay for any additional time she is unable to work due to pregnancy or childbirth (often six to eight weeks to recover from childbirth), thus granting some parents access to a combined average of four months of leave at partial pay. However, adoptive and single parents may not have the same access to paid leave benefits. Newsom’s proposal would permit two caretakers to split six months of paid leave.

The administration will convene a task force to consider different options to phase in and expand the current Paid Family Leave program. Currently, workers in the state pay a 1 percent payroll tax on wages of up to $115,000 to fund the program, which is running a surplus. Newsom mentioned that one way to pay for an expansion would be to utilize the surplus or raise the payroll tax or income limit so that those earning more than the current taxable ceiling would pay more.

If passed, Newsom’s proposal would set a precedent in the United States, which is the only developed country in the world that does not guarantee paid time off for new mothers. Since there is no national paid family leave, some states have enacted their own legislation to provide paid leave. For example, New Jersey, New York, and Rhode Island offer paid parental and caregiving leave, and Washington, Massachusetts, and the District of Columbia have paid leave policies that are set to start paying out within the next couple of years. It is clear that there is a momentum to enact family-friendly legislation.

Featured on Employment Law This Week: The Department of Labor (“DOL”) rolls back the 80/20 rule.

The rule prohibited employers from paying the tipped minimum wage to workers whose untipped side work—such as wiping tables—accounted for more than 20 percent of their time. In the midst of a federal lawsuit challenging the rule, the DOL reissued a 2009 opinion letter that states that the agency will not limit the amount of side work a tipped employee performs, as long as that work is done “contemporaneously” with the tipped work or for a “reasonable time” before or after that work. The letter was previously withdrawn by the Obama administration.

Watch the segment below and read our recent post.

Watch Paul DeCamp’s full segment here.

Pursuant to its mandate to implement the new anti-sexual harassment training requirements under the Stop Sexual Harassment Act (the “Act”), the New York City Commission on Human Rights (“Commission”) just released FAQs clarifying various aspects of the Act’s training mandates. Most notably, the FAQs address how an employer should determine whether it is covered by the training requirement, as well as a covered employer’s obligations with regard to training independent contractors. The training mandate becomes effective on April 1, 2019.

The Act requires employers with 15 or more employees to provide annual, interactive training to all employees who work more than 80 hours in a calendar year and work for at least 90 days. In determining whether it meets the 15-employee threshold, the FAQs instruct employers to determine the number of employees they employed “at any point within the prior calendar year.” In making this assessment, employers must count independent contractors as “employees,” regardless of how many hours or days they worked in the prior year.

Additionally, the FAQs state that employers will be required to provide training to independent contractors who have performed work in the furtherance of the business for more than 90 days and more than 80 hours in a calendar year. Employers are not required to train independent contractors who reach the 90-day/80-hour threshold if they already received the mandated annual training elsewhere.

Additionally, the FAQs:

  • Reiterate the specific topics that the training must cover, including the Commission’s complaint process;
  • Clarify that employees must receive training every calendar year (rather than by the anniversary date of their last training);
  • Stress that employers must maintain records of all training for three years, including a signed acknowledgment by each employee (which may be done electronically);
  • Confirm the notice posting requirements and instruct as to when electronic posting is acceptable; and
  • Clarify when and how newly hired employees must receive the City-issued Fact Sheet, i.e., in print or electronically and by the end of the employee’s first week of work.

The City will be providing additional information in the next few months about harassment training obligations.