New laws aim to protect hotel workers

NATIONAL REPORT—Throughout the country, local and state governments are passing laws to create more stringent anti-sexual harassment protections in the workplace and ensure safety measures—such as the distribution of panic buttons to hotel employees—are introduced. In cities like Chicago, Santa Monica, CA, and Miami Beach, as well as states like New Jersey and Illinois, panic buttons have been mandated for vulnerable hotel workers. And, states like New York, Connecticut, California, Delaware, Illinois and Maine have all recently passed stricter laws pertaining to sexual harassment. And this trend is not going away.

“More states are enacting these laws,” said Larry Eppley, leader of Sheppard Mullin’s hospitality practice. “It’s definitely going to continue for all the right reasons, and there’s no chance at all of this going the other way.”

Rachel Gumpert, national press secretary, Unite Here, noted that the genesis of this movement predates #MeToo. “We have been winning laws and contracts with these same exact protections since 2013,” she said. “It all was birthed in New York City, Unite Here Local 6, the hotel worker union for NYC; they won first-in-the-nation sexual harassment protections including panic buttons for workers and a contract that was ratified back in 2013. That really was the first time this had ever been done, and it made huge waves across our union. We began using those same contract standards and adapting them when we would negotiate in other cities, and then we began a broader approach of passing laws that could cover nonunion hotel workers who didn’t have the right to collectively bargain on sexual harassment.”

Shawn Fabian, associate in Sheppard Mullin’s labor and employment practice, noted that the #MeToo movement did serve as a driver of this trend. “For example, following this movement, more than 15 states enacted some type of anti-sexual harassment law,” he said. “There were a number of states and municipalities that enacted prevention measures, such as requiring new policies, requiring trainings with specific criteria to impress upon employees, both management and non-management; other states and municipalities expanded their workplace protections to include, for instance, folks other than employees, such as contractors, interns and students. The breadth of these laws has really expanded.”

“The importance of the #MeToo movement goes not only to redressing wrongs, but it’s also society saying we’re not going to look past these things and pretend what we saw happened didn’t happen,” Eppley added. “That’s why you see some of these more proactive measures like safety buttons and training, and increasing devotion of resources to making sure employees are protected.”

These laws are important, Gumpert stressed. “When you look at Department of Labor statistics, our [industry] is always ranked one or two for the most sexual harassment in the workplace out of any industry at all,” she said, noting that there are a lot of reasons for this—the nature of the job, in which housekeepers often enter rooms in desolate hallways, as well as the economic and sometimes racial power dynamics that are often at play between a guest and an employee.

Gumpert noted that Unite Here generally looks for three protections: panic buttons; a commitment either in law or in the contract that if a guest is reported by a worker for sexually harassing her, that they will be removed from the property; and bans for known harassers who’ve been reported by workers returning to the hotels, for three or sometimes five years.

And, with regard to panic buttons, it’s important they be GPS enabled. “We want a GPS-enabled panic button that in real time can show the exact location of a hotel worker in distress,” she said.

Fabian noted that most of these laws are straightforward, but one thing hoteliers need to be cautious of is ensuring they’re complying with the entirety of the law. “For instance, what we’re seeing sometimes is while there may be compliance in terms of requiring a new anti-sexual harassment policy and setting forth various criteria, such as requiring reporting mechanisms, investigation procedures, remedies for relief and so forth, there’s also something about the law that employers have failed to comply with, such as the policy being in both English and Spanish, and posted in a conspicuous location in both languages,” he explained. “The hotel and restaurant industry is clearly one of those that has a bilingual and multilingual workforce, and so it’s important to ensure compliance with the entirety of the law.”

One year ago, the American Hotel & Lodging Association (AHLA) revealed the 5-Star promise, a voluntary commitment by AHLA members to enhance policies, trainings and resources, including providing employee safety devices (ESDs), with a goal of nationwide implementation by 2020. While 17 hotel companies originally signed on, there’s been a 230% increase, growing the commitment to 56 companies. This represents an estimated 20,000 hotel properties committed, with roughly 1.2 million employees; thus far, 5,000-plus properties have deployed safety devices this year.

“We continue to increase member support of the 5-Star Promise each month,” said Chip Rogers, AHLA president and CEO. “Among hotels that have implemented devices, the feedback they’ve received from staff is overwhelmingly positive, with employees reporting they feel safer at work and that they have a greater awareness of how to report suspicious activity.”

With regard to the laws, Rogers noted that the association has worked with policymakers to craft solutions, such as the Chicago ordinance. “The challenge with a patchwork of state and local laws mandating specific requirements is that each hotel is unique, from structural differences in building design and layout to differing WiFi network capabilities, to staffing and operations,” he said. “This is why a one-size-fits-all approach doesn’t work. Every hotel must evaluate the right solution for their unique needs, and that’s why participation in the 5-Star promise is critical because it allows them to do just that.”

AHLA provides resources for members on these topics. “This includes a Device Buyer’s Guide to help hospitality companies purchase and implement ESDs, and a discount program for member companies with select ESD providers,” Rogers said.

When it comes to sexual harassment, one thing hotels can’t do is ignore or underestimate incidents. “The mistakes are the incidents that get ignored,” Eppley said. “Part of the momentum of #MeToo is people take these things more seriously.”

“Only one part of the solution is having the appropriate policies and protocols in place,” Fabian added. “But the other part of this solution and, to an extent, even more important part of the solution, is the reporting mechanisms, the investigation to ensure the issues raised by employees are actually being addressed.”

Andrew Rawson, chief learning officer, Traliant, which offers regulatory online compliance training, agreed. “The single biggest problem we see is mid-level managers, completely well intentioned, saying, ‘Don’t worry about Jill; she’s just old school,’ when someone comes to them and says, ‘Jill is giving me a hard time, making comments that make me uncomfortable,’” he said. “That is the number-one thing hotels have to impress upon their managers, and that’s why we have separate manager training where we go through best practices. If someone comes to you and says they believe they have been subjected to some form of sexual misconduct or discrimination, you must take it seriously. In fact, in New York, the law now requires that if you are a manager, you must report it up the chain of command, even if someone asks you not to. When there’s a complaint and the EEOC comes in and asks for training records, a transcript of the training and all records relating to the complaint, you’re not in strong position if you say, ‘This is the first I’m hearing about it.’”

Even if a hotel is located in an area where these laws have yet to be enacted, it’s important for hoteliers to think about it. “We recommend to our clients that they should have plans in place with respect to these various issues, whether it be a plan to implement and distribute panic buttons or a policy ready to go with respect to anti-sexual harassment and trainings,” Fabian said. “Just because a particular law may not yet be adopted in the state in which a hotel operates, doesn’t mean it’s not coming to that state soon.”

“There’s societal reasons to do it, and there’s business reasons to do it, too,” Eppley added. “You need those workers and you need them to feel safe; otherwise, you’re going to lose them to somebody else where they can feel safer. It’s important to the conduct of business at all hotels that people feel safe.”

There’s also the risk of reputational harm. Gumpert pointed to the first time a ballot measure passed providing these protections in 2016. “When it was passed by voters, it was the first indication of what we already suspected, which is that the public was on our side on this, and when they learned the level of harassment inside our industry, they want those [workers] to be safe and they want employers to be responsible for keeping [workers] safe at work,” she said.

Fabian noted that in properties where panic buttons have been implemented, “employees have felt more comfortable having these buttons, knowing they can reach security in a single push. It’s good for business, it’s good for employee morale; folks want to keep their people, so every little thing you can do in complying with these laws and making employees safe is for the better.”

ESDs aren’t the only way for hotels to signal to employees that they’re serious about sexual harassment. For one, they can have customized sexual harassment training. “You can’t tell people you’re serious about having a dignified and respectful workplace and send out the same old 1980s training DVD,” Rawson said. “The learners surveys with the highest ratings are those where a senior person in the company or property will record a brief intro to the training. It sends the right message. The words they say aren’t as important as the fact they’re doing it.”

But, he said, employers are moving more toward customized training. “What we’ve seen increasingly is our customers, for the first time, really taking a more holistic approach and recognizing long gone are the days where you can just license someone’s e-learning, check the box and say you’re done until next year,” Rawson said. “Now, increasingly, people are trying to match their deeds with their words, meaning we have any number of hotels and hotel management companies going out and making sure their staff knows they’re serious about not tolerating discrimination and harassment in the workplace.

“Until two years ago, when the Harvey Weinstein story broke, no one asked if it was effective,” he added. “They asked whether it gave you a good defense in court should you have a problem. Now, everybody wants to be effective, and it’s only going to be effective if it’s truly engaging and interactive, and really tailored to the individual taking the training.”

An ongoing communication strategy is also key, whether it’s newsletters, emails or topics brought up in meetings. “Keep it top of mind because the message is ‘we’re serious and this is important,’” he said. “A genesis of the #MeToo movement was people’s fear of reprisal: They’re going to be retaliated against; there’s going to be a negative outcome. People were silenced for years because of this fear. Organizations can’t emphasize enough that if you think there’s a problem, talk to us: You are protected from retaliation. I’m not suggesting it’s easy because people are still reticent about coming forward, but a steady messaging campaign helps.” HB