The Alliance testifies at a City Council hearing on proposed legislation that would create a mandated sexual harassment prevention training for workers in the hospitality industry focused on patron-to-patron harassment.
New York City Hospitality Alliance
November 13, 2018
My name is Andrew Rigie and I am the executive director of the New York City Hospitality Alliance (“The Alliance”). The Alliance is a not-for-profit association representing restaurants and nightlife establishments throughout the five boroughs impacted by this legislation and resolution. I’m also the chairperson of the newly established Nightlife Advisory Board that’s mandated to advise the City Council and Mayor on issues related to the nightlife industry. We’ve had several meetings and are hard at work laying the groundwork for our first report and recommendations. Although my experience as a Council-appointee to the Nightlife Advisory Board informs my views, today I testify on behalf of The Alliance.
The Alliance has always been a partner to the City Council and advocates on the very important issue of harassment. We take this matter seriously and believe public policy to address these issues must be crafted carefully. Some of our recent efforts include:
- Supporting the Stop Sexual Harassment in NYC Act (Int. 0632-2018), which is now law, and requires all employers with 15 or more employees to conduct mandatory sexual harassment training for all employees.
- Partnering with NYPD to publish Best Practices for Nightlife Establishments, which is now in its third edition and very popular in the industry. The Best Practices guide includes a section dedicated to advising nightlife establishments on how to prevent sexual harassment and assault, and what to do if it happens.
- Developing bystander training for the nightlife industry in partnership with advocates including the NYC Alliance Against Sexual Assault and OutSmartNYC.
We are not saying these efforts are enough. But, as partners to the Council and advocates in combatting harassment, changes are needed if this proposed legislation and resolution are to be clear, fair, and successful.
Who is covered and what is required by this legislation must sync with existing harassment prevention training requirements.
Under new State law, all employers must conduct sexual harassment prevention training for all employees. Under recently enacted City law, all employers with 15 or more employees must conduct City-mandated sexual harassment prevention training.
This proposed legislation would create a third covered class of “nightlife establishments,” and would mandate a third training whose contents partially overlap with the existing State and City training requirements, but do not fully overlap. Requiring employers to administer and keep records for *two sets of similar trainings, and mandating workers to take two similar trainings every year is burdensome, and is a compliance disaster waiting to happen. (*it’s anticipated that the City training will satisfy the State’s requirements.)
Who is covered by this legislation must not be determined by the recently enacted definition of “nightlife establishments” in the City Charter. When the Council recently created the Office of
Nightlife, it defined that Office with an expansive and vague definition of “nightlife establishments” to suit the expansive goals of the Office:
“The term ‘nightlife establishment’ means an establishment that is open to the public for entertainment or leisure, serves alcohol or where alcohol is consumed on the premises, and conducts a large volume of business at night. Such term includes, but is not limited to, bars, entertainment venues, clubs and restaurants.” (See Charter sec. 20-d).
That definition is aspirational in nature and sets the broad scope of the industry that the Office of Nightlife is supposed to address. It is not a technical definition. It was never intended to define a specific regulatory class from which statutory obligations that carry penalties and liability could flow. I know because The Alliance was at the negotiating table in creating the Office of Nightlife. We are very concerned that the language is now being used outside the confines of defining the Office of Nightlife.
The solution is simple. Change the covered class to include all employers already covered by the Stop Sexual Harassment in NYC Act. Patron harassment is not limited to nightlife establishments. It happens in gyms, movie theaters, clothing stores, doctors’ offices, hair salons, and in any other conceivable commercial setting. There is no reason to limit the training requirement to one industry.
Once who is covered is fixed, what is required must be fixed. Instead of requiring covered employers to provide a second training, which would partially duplicate the State and City trainings, this legislation should amend the required sections of the existing mandatory anti-harassment training so the additional requirements are included in it. The result is that one training must satisfy all harassment prevention training requirements. One training makes sense for everyone: employees, employers and patrons.
If the Council insists on creating a special training requirement for nightlife establishments, then the covered class should be limited to actual nightlife establishments, not the vague “nightlife establishments” that broadly defines the mandate of the Office of Nightlife. Ever since the death of the Cabaret License and the definition that came with it, the Council has used the following formulation in legislation to capture nightclubs:
“An eating or drinking establishment that (i) operates pursuant to a permitted use under use group 12, section 32-21 of the zoning resolution, as indicated in such establishment's certificate of occupancy or place of assembly certificate of operation; (ii) is required to have a license to sell liquor at retail pursuant to the alcohol beverage control law; and (iii) employs or retains the services of one or more security guards or a security guard company.”
Under this scenario, the training must still be included into the existing training so that one course meets all requirements.
This legislation also mandates posting a sign about patron harassment at an establishment’s bar or restroom. This is not overly burdensome but adds another sign mandate on top of the dozens that already exist, which has been a source of frustration and gotcha violations for business owners. We support voluntary sign posting as a best practice and have participated in similar campaigns, but there needs to be further conversations with experts before adding another sign mandate to the list of growing, well-intended postings. Further, we know that sign violations are a source of “gotcha” summonses issued by city agencies, including the NYPD when a mandated sign is not posted, posted “improperly” or is defaced by a customer. In light of the MARCH legislation being considered by the Council, the trend should be to get away from new administrative and posting burdens that generate summonses.
Lastly, Resolution 580 calls on the state of New York to update its mandatory security guard training curriculum to include sexual harassment prevention and bystander intervention training for all security guards who work in nightlife establishments.
The Alliance has recommended that the state’s security guard training curriculum be enhanced for people working in nightlife establishments. The conditions inside a nightlife establishment and a pharmacy are very different but security guards in both locations take the same curriculum. Res. 580 is incomplete by only addressing sexual harassment and bystander intervention training. The resolution should be amended to include training that addresses various scenarios within the nightlife environment, such as dealing with intoxicated patrons, crowd management, fights, drug overdose, de-escalation techniques, active shooter scenarios, overdose, etc. The language used in the resolution also paints an extremely negative view of nightlife when our city is finally embracing our industry for its culture creation and economic impact. The resolution can be re-written to incorporate our comments and address the importance and seriousness of the matter without casting such a negative view of the nightlife industry.
We thank you for your consideration of our comments and look forward to working with you constructively on these critically important nightlife issues.