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.

In 2018, we have seen important new wage and hour developments unfolding on a seemingly weekly basis. To help you stay up to date and out of the crosshairs of the plaintiffs’ bar, we invite you to join Epstein Becker Green’s Employment, Labor & Workforce Management Webinar Series presentation for September. Presented by our Wage and Hour practice group, this webinar will focus on wage and hour developments affecting the hospitality and home health care industries, although much of the information will also be of interest to employers in other industries.

With an eye toward the hospitality industry, the key issues we plan to cover include:

  • New statutory and regulatory changes affecting tip pooling and sharing, as well as required notice to employees
  • Litigation risks presented by service charges
  • New York’s requirements concerning spread-of-hours and call-in pay

For home health care businesses, we will focus on these topics:

  • The emerging case law on 24-hour sleep time
  • How to track hours worked, especially for employees previously viewed as exempt
  • Whether to classify workers as “employees” or “independent contractors”

Thursday, September 13, 2018

1:00 p.m. – 2:30 p.m. ET

Register for this complimentary webinar today!

We published an article in Club Director, titled “Harassment and the #MeToo Movement in the Private Club Industry.” Following is an excerpt:

The recent heightened awareness to sexual harassment issues affects a wide range of industries, and has prompted employers to consider ways to get ahead of the problem. In order to reduce the risk of such complaints, private clubs may take a number of proactive steps.

Anti-Harassment Policy: Clubs should develop a zero-tolerance policy against harassment that includes, at a minimum, the following elements:

  • Expressly prohibit any sexually harassing or inappropriate behavior by staff or members toward employees, guests, members or patrons.
  • Define sexual harassment, making clear that it includes inappropriate relations, touching, and communication (i.e., emails, phone calls, text messages, or messages through social media).
  • Firmly state that any individual (staff or members) found to have engaged in sexually harassing behavior will be subject to discipline and/or immediate dismissal or expulsion.

Click here to download the full version in PDF format.

Our colleagues Jeffrey H. Ruzal, Adriana S. Kosovych, and Judah L. Rosenblatt, attorneys in the Employment, Labor & Workforce Management practice, co-authored an article in Club Director, titled “Recent Trends in State and Local Wage and Hour Laws.”

Following is an excerpt:

As the U.S. Department of Labor (DOL) appears to have relaxed its employee protective policy-making and enforcement efforts that grew during the Obama administration, increasingly states and localities have enacted their own, often more protective, employee-protective laws, rules and regulations. To ensure full wage and hour compliance, private clubs should consult their HR specialists and employment counsel and be mindful of all state and local requirements in each jurisdiction in which they operate and employ workers. Here are just some of the recent wage and hour requirements that have gained popularity among multiple jurisdictions.

Click here to download the full version in PDF format.

So far, 2018 has brought an increasing number of labor and employment rules and regulations. To help you stay up to date, we are pleased to introduce the Employment, Labor & Workforce Management Webinar Series.

Epstein Becker Green’s Hospitality service team took a deeper dive into our recently released Take 5 during the first webinar. Topics discussed include:

  • Additional measures to protect lesbian, gay, bisexual, and transgender employees in the hospitality workplace
  • Compliance training in the hospitality workplace
  • Transactional due diligence, including labor relations issues
  • The risk of self-reporting overtime and minimum wage violations under the Payroll Audit Independent Determination (PAID) program

Watch a recording of the webinar video here and download the webinar presentation slides.

The first quarter of 2018 has already stirred up an array of legal matters that employers in the hospitality industry should be conscious of, both in their day-to-day operations and long-term planning. In February alone, the U.S. House of Representatives passed legislation to curb lawsuits focused on the inaccessibility of brick-and-mortar business establishments and a federal appeals court ruled that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964 (“Title VII”). Earlier this month, the U.S. Department of Labor announced a pilot program that will allow employers to avoid potential penalties for overtime and minimum wage violations. In addition, the #MeToo movement continues to be top of mind across all industries, and hospitality employers should be vigilant in their training and employee awareness efforts. Due diligence in change-of-ownership transactions should include labor relations issues, especially with unionized employees.

This edition of Epstein Becker Green’s Take 5 addresses important and evolving issues confronting employers in the hospitality industry:

  1. Will Congress Slam the Breaks on ADA “Drive By” Lawsuits?
  2. Expanding Sex Discrimination Protection to LGBT Employees in the Hospitality Industry
  3. Effective Compliance Training in the Hospitality Industry in the Wake of #MeToo
  4. Transactional Due Diligence Should Include Labor Relations Issues
  5. Voluntary PAID Program Permits Employers to Escape Potential High Penalties for Self-Reported FLSA Violations—but at What Risk?

Read the full Take 5 online or download the PDF.

Our colleagues , at Epstein Becker Green, have a post on the Wage and Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “Initial Discovery Guidelines May Fast-Track Early Disclosure Requirements in Individual FLSA Cases.”

Following is an excerpt:

Depending on the jurisdictions within which they operate, certain employers and their counsel will soon see a significant change in early mandatory discovery requirements in individual wage-hour cases brought under the Fair Labor Standards Act (“FLSA”).

A new set of initial discovery protocols recently published by the Federal Judicial Center (“FJC”), entitled Initial Discovery Protocols For Fair Labor Standards Act Cases Not Pleaded As Collective Actions (“FLSA Protocols”), available here, expands a party’s initial disclosure requirements to include additional documents and information relevant to FLSA cases. These Protocols apply, however, only to FLSA lawsuits that have been filed in participating courts that have implemented the Protocols by local rule or by standing, general, or individual case order. …

Read the full post here.

A Full Menu of Potential Legal Issues for Hospitality Owner/OperatorsIn the new issue of Take 5, our colleagues examine important and evolving issues confronting owners, operators, and employers in the hospitality industry:

Read the full Take 5 online or download the PDF.

Epstein Becker Green is pleased to be participating in the National Club Association’s 2017 National Club Conference at the New York Athletic Club on May 22-24, 2017.

Jeffrey H. Ruzal, Member of the firm and leader of Epstein Becker Green’s Hospitality industry service team is featured in the afternoon General Session on May 22, 2017 and will discuss misclassification of club staff.

Jeff is looking forward to sharing his knowledge in hospitality law and discussing best practices to avoid many of the recurring legal issues plaguing the hospitality industry.

Click here for a conference schedule at-a-glance.

Earlier this week New York Governor Andrew D. Cuomo (D) signed two executive orders and announced a series of legislative proposals specifically aimed at eliminating the wage gap in gender, among other workers and strengthening equal pay protection in New York State. The Governor’s actions are seen by many as an alternative to employer-focused federal policies anticipated once President-elect Donald J. Trump (R) takes office.

Legislative Proposals

According to the Governor’s Press Release, the Governor will seek to amend State law to hold the top 10 members of out-of-state limited liability companies (“LLC”) personally financially liable for unsatisfied judgments for unpaid wages. This law already exists with respect to in-state and out-of-state corporations, as well as in-state LLCs. The Governor is also seeking to empower the Labor Commissioner to pursue judgments against the top 10 owners of any corporations or domestic or foreign LLCs for wage liabilities on behalf of workers with unpaid wage claims.

Executive Orders

On January 9, 2017, Governor Cuomo signed two executive orders. The first, “Ensuring Pay Equity by State Employers,” prohibits state agencies and other state entities from asking job applicants for their wage history or considering previous salaries in hiring decisions until the applicant is extended a conditional offer of employment with compensation.

The second executive order, “Ensuring Pay Equity by State Contractors,” requires all state agencies and authorities to include a provision in all state contracts, agreements and procurements issued on or after June 1, 2017 requiring contractors and subcontractors to agree to include workforce utilization reports, which shall include in addition to the currently required equal employment opportunity data, the job title and salary of employees of contractors or subcontractors performing work on a state contract, or of a contractor or subcontractor’s entire workforce if the contractor or subcontractor cannot identify the individuals working directly on the state contract in question. This information shall be reported to state agencies and authorities on a quarterly basis for all prime contracts valued at more than $25,000, and on a monthly basis for prime construction contracts valued at more than $100,000.

While there will likely be a noticeable shift toward employer-focused regulations and policies under the impending Trump Administration, employers should take heed of certain states, such as New York, that will continue to advance protections for employees where the federal government has not.