Article contributed by Jennifer M. Schmalz, Ellenoff Grossman & Schole LLP
Last month, New York Governor Hochul announced the launch of a state-wide, toll-free, confidential hotline for complaints of workplace sexual harassment.
The hotline was implemented pursuant to an amendment earlier this year of the New York State Human Rights Law, N.Y. Exec. Law § 296, requiring its establishment. New York employees may now call 1-800-427-2773 (1-800-HARASS-3) to receive free legal counseling regarding any complaint of workplace sexual harassment or to submit a complaint to the New York State Division of Human Rights (NYSDHR) regarding such harassment. Employees who call the workplace sexual harassment hotline will speak with a pro bono attorney for the NYSDHR. The NYSDHR will provide the caller with information about how to file a sexual harassment complaint with the agency and, if the caller is interested, connect them with an attorney.
Restaurant employers need to take action now to protect their employees from sexual harassment and their businesses from costly lawsuits. Many factors unique to the restaurant industry contribute to increased exposure to such lawsuits including late night operations, a fast-paced work environment and consumption of alcohol by customers. In light of this legal development, which can be expected to lead to increased complaints of sexual harassment, it is more important than ever for employers in New York State to review and reinforce their efforts at preventing sexual harassment in the workplace. Employers should consult with experienced labor and employment counsel and discuss a proactive strategy to avoid workplace sexual harassment claims.
A few key steps for New York employers to take immediately:
- Ensure your workforce has received or is scheduled to receive sexual harassment prevention training as required annually by law for all employees, contractors and interns under both New York State and New York City law. Online training is available on the New York State Division of Human Rights website and, for those operating in New York City, on the New York City Commission of Human Rights website. Be sure to keep records of when and where employees attend such training each year. In-person training is often the most effective training and should be discussed with your employment counsel.
- Make sure your Sexual Harassment prevention policy is compliant with federal, state and local law. Include a complaint form for employees who choose to submit a claim in writing (written complaints are not required but encouraged). Model policies and a model complaint form are also available on the NYSDHR website in many languages since the policy must be provided to employees in their primary language.
- Make sure managers and supervisors understand the importance of reporting all complaints immediately to the person responsible for Human Resources matters for your restaurant. A thorough and prompt investigation must be done as required under the law. Require managers and supervisors to acknowledge their role in enforcing policies prohibiting harassment and setting the example in the workplace.
- Be sure to post all notices required under federal, state and local law and provide new employees with such notices upon hire. Note that in New York City all new hires must be provided the Stop Sexual Harassment Act Factsheet which can be found on the New York City Commission of Human Rights website.
Further guidance for employers is expected from the New York State Department of Labor. The law makes clear that information about the workplace sexual harassment hotline must be included in materials employers provide to employees regarding sexual harassment prevention. Employers need to promptly review all policies, handbooks, workplace postings and training materials regarding sexual harassment to ensure they are updated to include information regarding the new hotline telephone number.
Employers should also encourage employees to submit complaints regarding sexual harassment – which they either personally experience or observe happening to coworkers – right away to supervisors or Human Resources so they can be promptly investigated and resolved. Bystander reports of harassment are important due to the fact many individuals are reluctant or afraid to come forward. Employees should be assured that there will be no retaliation for reporting sexual harassment.
Communicating to your employees about your restaurant’s commitment to preventing sexual and other forms of unlawful harassment in the workplace is essential. Work with your labor and employment counsel to fully comply with the laws applicable to your restaurant operations and to discuss your ongoing efforts at prevention.
Jennifer M. Schmalz is a Partner at Ellenoff Grossman & Schole LLP in New York City in the in the Labor & Employment practice group. She counsels employers in all facets of labor, employment and employee benefits law, with broad experience in preventing and resolving workplace disputes, compliance with the variety of laws governing the workplace, and the labor and employment aspects of mergers and acquisitions and other corporate transactions. Ms. Schmalz has successfully litigated matters involving employment discrimination, Title III of the ADA, wrongful termination, violations of restrictive covenants, breach of contract and wage and hour violations. She works with clients in a wide variety of industries including hospitality, real estate, transportation, retail, financial services, health care, manufacturing, technology and not-for-profit corporations. Jennifer M. Schmalz can be reached at jschmalz@egsllp.com or via phone at 212-370-1300.