On April 12, 2018, New York State Governor Andrew Cuomo signed into law legislation that Governor Cuomo described as providing “the strongest and most comprehensive anti-sexual harassment protections in the nation, ending once and for all the secrecy and coercive practices that have enabled this unacceptable behavior for far too long.”
Less than one month later, on May 9, 2018, New York City Mayor Bill de Blasio signed into law the “Stop Sexual Harassment in NYC Act,” which consists of a “comprehensive package of legislation designed to strengthen New York City’s anti-sexual harassment policies and combat workplace sexual harassment.” What does this mean for restaurateurs? What new laws always mean for restaurants— new liabilities and new compliance mandates.
To comply with the new laws, employers will be required, among other things, to create, implement or update their sexual harassment policy, implement an annual interactive training program for all employees, hang an additional poster and have yet another “new hire” handout.
Additionally, employers are also now liable for sexual harassment perpetrated against non-employees. The New York Human Rights Law to provide protection to contractors, subcontractors, vendors, consultants or others providing services in the workplace from sexual harassment in the workplace. This means that these non-employees can now sue the restaurateur for sexual harassment if the employer, its agents or supervisors knew or should have known that such non-employee was subjected to sexual harassment and failed to take immediate and appropriate corrective action.
The Mandatory Written Workplace Sexual Harassment Policy
Effective October 9, 2018, Employers will be required to provide all employees a written sexual harassment policy that:
(i) prohibits sexual harassment and provide examples of prohibited conduct;
(ii) includes information concerning the federal, state and city statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
(iii) includes a standard complaint form;
(iv) includes a procedure for the timely and confidential investigation of complaints and ensures due process for all parties;
(v) informs employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
(vi) clearly states that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
(vii) clearly states that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
The New York State Department of Labor (“NYDOL”) will establish a model sexual harassment policy for employers to adopt or use to establish a similar policy that meets or exceeds the minimum standards of the model policy.
Annual Interactive Training
Annually, Employers must provide all employees with interactive sexual harassment prevention training that meets the following minimum standards:
(i) An explanation of sexual harassment and retaliation consistent with guidance issued by the NYDOL;
(ii) Examples of conduct that would constitute unlawful sexual harassment;
(iii) Information concerning the federal, state and city statutory provisions prohibiting sexual harassment and retaliation, an accompanying statement that sexual harassment is a form of unlawful discrimination and remedies available to victims of sexual harassment and retaliation;
(iv) Information concerning employees’ internal and external complaint processes, rights of redress and all available forums for adjudicating complaints;
(v) Information addressing conduct by supervisors and any additional responsibilities for supervisors;
(vi) Guidance regarding bystander intervention.
The NYDOL will establish a model sexual harassment prevention training program for employers to adopt or use to establish a similar training program that meets or exceeds the minimum standards of the model training. The New York City Commission on Human Rights is tasked with creating an online interactive training module to be posted on their website for access by employers.
Anti-Sexual Harassment Rights and Responsibilities Poster that Must Be Displayed in the Workplace
Effective September 6, 2018, all employers in New York City will be required to conspicuously display an anti-sexual harassment rights and responsibilities poster (in English and in Spanish, at a minimum) in the place where other workplace posters are displayed. The New York City Commission on Human Rights is tasked with designing the poster, which shall be made available on the Commission’s website for employers to download, print and post.
Anti-Sexual Harassment Rights and Responsibilities Information Sheet that Must Be Distributed To New Hires
The New York City Commission on Human Rights will also be creating an information sheet on sexual harassment that employers will be required to distribute to each employee at the time of hire.
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In preparation for the new law to go into effect, employers should regularly check the websites of the New York State Department of Labor, New York State Division of Human Rights and the New York City Commission on Human Rights for the model policies, training, poster and information sheet. Restauranteurs would also be wise to contact an employment attorney with a concentration in restaurants to ensure their policies, notices and training programs are in compliance. If you have questions, please contact Amanda M. Fugazy, Partner, Ellenoff Grossman & Schole at 212-370-1300.