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.

Massachusetts is one of many states which have adopted legislation, commonly known as a “ban the box” law, prohibiting public and private employers from requesting criminal record information in a prospective employee’s “initial written employment application” and limiting the type and scope of questions an employer may ask a candidate following receipt of an “initial written employment application.” Yesterday, Massachusetts Attorney General Maura Healey announced that her office has settled with four businesses and issued warning letters to 17 others for violations of Massachusetts’s ban the box law, marking the first enforcement efforts by the Massachusetts Attorney General’s Office.

According to the AG’s press release, it conducted an investigation into employer compliance with the state’s ban the box law by sampling an undisclosed number of Boston and Cambridge employers. The initial employment applications of 21 of those businesses were found to contain one or more impermissible questions about the applicant’s criminal record, such as whether the applicant had been convicted of violating the law, whether he or she been convicted of a crime or offense other than a minor traffic violation, and whether he or she had ever been convicted of a felony. The four employers that reached agreements with the AG’s Office are Edible Arrangements, Five Guys, L’Occitane, and The Walking Company. The first three were fined $5,000 each (The Walking Company appears to have been given a pass due to its bankruptcy status) and each was required to take steps to comply with the law. The 17 business which received a warning to immediately comply with the law are: Brattle Book Shop, Kingston Grille and Bar, Salvatore’s, Sidebar, Stoddard’s Food & Ale, The Chicken and Rice Guys (two locations), The Oceanaire Seafood Room, Tous Les Jours, Viga Italian Eatery and Catering, Love Culture, and Frette, all in Boston, as well The Middle East Restaurant, Mainely Burgers, Mexicali Burrito Co., Café ArtScience, Meadhall, and Grafton Street Pub & Grill in Cambridge.

While the press release does not indicate whether the AG’s Office intends to expand its probe, continued enforcement seems likely in light of AG Healey’s remarks that “Jobs are the pathway to economic security and building a better life. But unfortunately, many of our residents with criminal records face barriers to securing employment. These actions are an effort to give all job applicants a fair chance.”

Enforcement of ban the box legislation is not limited to regulators in Massachusetts. Well over a year ago, the New York State Attorney General announced settlements with two major national retailers – Big Lots Stores and Marshalls – for violation of New York’s ban the box law by inquiring about the criminal history of job applications on initial employment applications at their Buffalo stores. The New York AG imposed fines that were substantially greater than those set by the Massachusetts AG: Big Lots agreed to pay a monetary penalty of $100,000, and Marshalls a penalty of $95,000. Both were required to adopt new policies and training, and report their remediation to the New York AG.

These actions highlight that businesses operating in jurisdictions with ban the box laws must ensure that their pre-hiring practices comply with such laws or risk regulatory fines, not to mention public disrepute and potential civil liability.

Last week, the EEOC released its latest edition of its federal sector Digest of Equal Opportunity Law, a quarterly publication featuring recent Commission decisions and federal court cases selected by EEOC’s Office of Federal Operations. This edition features an article titled, “Promising Practices for Preventing Harassment,” which is the fruition of an EEOC task force on workplace harassment. The article, which is particularly timely given the #MeToo movement, advances five core principles to deter and remedy harassment: (1) committed and engaged leadership; (2) consistent and demonstrated accountability; (3) strong and comprehensive harassment policies; (4) trusted and accessible complaint procedures; and (5) regular, interactive training tailored to the audience and the organization.

The utility of this article is not the simple identification of these principles, which are familiar and uncontroversial, but rather its identification of practices/strategies an employer can implement to achieve these aims. These recommendations include:

  • Regularly and effectively train supervisors and managers about how to prevent, recognize and objectionable conduct that, if left unchecked, may rise to the level of prohibited harassment.
  • Direct staff to periodically, and in different ways, test the complaint system to determine if complaints are received and addressed promptly and appropriately.
  • Create a harassment complaint system with multiple avenues of complaint.
  • Conduct live, interactive harassment training on a regular basis.

Helpfully, the articles also enumerates specific statements that should be included in a harassment policy, including but not limited to, that:

  • The policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
  • Harassment based on, at a minimum, any legally protected characteristic is prohibited;
  • Employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
  • The employer will provide a prompt, impartial, and thorough investigation;
  • The identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
  • The organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
  • Retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

As the article acknowledges, these practices are not legal requirements under federal employment discrimination laws. However, employers should take note of these recommendations as they may enhance employers’ compliance efforts in both the short- and long-term.

Massachusetts employers should take note of a provision in the Massachusetts criminal justice reform law – signed into law last week – that amends the type and scope of questions an employer may ask an applicant about his or her criminal history following an “initial written employment application.”

Since 2010, Massachusetts has prohibited public and private employers from requesting criminal record information in a prospective employee’s “initial written employment application” (commonly known as a “ban the box” provision). Following receipt of an “initial written employment application,” Massachusetts employers were further prohibited from inquiring about (1) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted; (2) a first offense for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace (all classified as misdemeanors); or (3) any conviction for a misdemeanor where the date of conviction, or the completion of any resulting period of incarceration, occurred five or more years prior to the date of the application, unless such person has been convicted of any offense within the preceding five-year period.

The new law, effective October 13, 2018, modifies one of these existing restrictions and adds yet another constraint. First, the law decreases the period in which an employer can ask about a misdemeanor conviction or a resulting incarceration from five to three years preceding the date of the employment application.  In other words, an employer cannot ask an applicant questions about misdemeanor convictions/resulting incarcerations that occurred three or more years prior to the date of the employment application, unless the applicant was convicted of any offense within the preceding three years.  Second, the law creates a blanket prohibition as to any and all inquiries about sealed or expunged criminal records.  Consequently, these amendments afford expanded privacy and protection to candidates.

In light of these amendments, employers should revisit their hiring practices and procedures, and potentially provide supplemental training to those individuals involved in the hiring process.