Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As previously reported, this year both the State of New York and the City of New York enacted legislation requiring employers to distribute sexual harassment prevention policies and to train their workforce about the prevention of workplace sexual harassment and available legal remedies. On October 31, 2018, the New York City Council introduced related legislation targeting the City’s nightlife establishments and the issue of patron harassment.
The proposed legislation would require (a) every nightlife establishment to post a notice visible to the establishment’s patrons about harassment; and (b) every nightlife establishment with five or more employees to provide annual harassment training to employees regarding harassment among patrons, in addition to harassment training required by the State of New York and City of New York.
While the proposed legislation does not target employee harassment, it would require nightlife establishments and their employees to guard against patron-on-patron harassment, and to engage in bystander intervention and other responsive action when potential harassment is observed.
What is a Nightlife Establishment?
The proposed legislation defines “nightlife establishment” consistent with Section 20-d of the New York City Charter. Section 20-d of the New York City Charter defines “nightlife establishment” as “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.” Because the definition is broad, this bill, if passed, would apply to most employers in the hospitality industry that have a liquor license or serve alcohol.
How is Harassment Defined?
Unlike the New York State and New York City laws that were recently passed, this bill is not limited to sexual harassment. Rather, the proposed legislation defines harassment consistent with sections 240.25 and 240.26 of the New York Penal Law.
Section 240.25 of the New York Penal Law defines harassment in the first degree as intentionally and repeatedly “following [another] person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.”
Section 240.26 of the New York Penal Law defines harassment in the second degree as acting with the intent to harass, annoy or alarm another person by: (a) striking, shoving, kicking or otherwise subjecting another person to physical contact, or attempts or threatens to do the same; or (b) following a person in or about a public place or places, or (c) engaging in a course of conduct or repeatedly committing acts that alarm or seriously annoy such other person and which serve no legitimate purpose.
Notice to Patrons
The proposed notice must be posted conspicuously by nightlife establishments “either behind the bar or in the establishment’s bathrooms,” informing patrons, at a minimum, that (a) the nightlife establishment is a harassment-free space; (b) a patron subjected to harassment while at the nightlife establishment may report it to security or support staff; and (c) there is a list of available government resources as determined by the City’s Office of Nightlife and the New York City Department of Consumer Affairs.
Under the proposed legislation, the New York City Department of Consumer Affairs would determine the size of the notice. A failure to post the notice would subject any nightlife establishment to a civil penalty of not more than $500 for each such violation.
The annual harassment training must include (a) an explanation of harassment as a form of unlawful conduct under the penal law; (b) how to identify harassment among patrons and an intervention protocol; (c) employee responsibilities when a patron reports harassment; (d) information on bystander intervention; and (e) government resources about harassment as determined by the City’s Office of Nightlife and the New York City Department of Consumer Affairs.
Similar to the City’s sexual harassment law, newly hired employees who work 80 or more hours within the City must receive training on patron harassment within 90 days of hiring.
Interestingly, the proposed legislation does not identify any civil penalties associated with the failure to provide either the annual training or the new-hire training.
While the proposed legislation has not passed the New York City Council, given the momentum of anti-harassment legislation throughout the country generally and in New York in particular, nightlife establishments can expect that the City will seriously consider this law or add similar compliance requirements for all NYC nightlife establishments.
We will continue to monitor this bill and report on any significant developments.