By Robert T. Szyba, Gena B. Usenheimer, and Ryan B. Schneider

Seyfarth Synopsis: On December 3, 2018, the New Jersey Senate Labor Committee unanimously advanced a bill that would require covered hotels to provide “panic devices” to certain employees. New Jersey joins the increasing number of jurisdictions considering or enacting this form of anti-sexual harassment legislation.

Background

In September, two state New Jersey state senators introduced S2896 in an effort to protect “hotel employees from sexual assault and other dangerous working conditions.” As amended by the New Jersey Senate Labor Committee, the bill is now before the full Senate for consideration. Notably, the New Jersey bill would impose requirements similar to those found in the recently enacted Seattle and Chicago hotel panic button mandates. (For more information on the Chicago mandate, please see our previous post here.)

Here are some of the highlights from the New Jersey bill:

  • Covered Hotels: The mandate would apply to hotels and similar establishments that contain 25 or more guest rooms.
  • Obligation to Provide a Panic Device: Covered hotels would be required to provide a “panic device” to each hotel employee who, without others, performs housekeeping or room service duties in guest rooms, at no cost to the employee.
    • Panic Device: The bill defines “panic device” as a two-way radio or other electronic device that can be kept on the employee’s person and used to summon immediate on scene assistance from an appropriate hotel staff member. Other mandates under consideration or in effect contemplate the use of a “button.”
  • Employee’s Use: Under the proposal, an employee may use the device when the employee “reasonably believes” that there is an ongoing crime, immediate threat of assault or harassment, or other emergency in the employee’s presence. While awaiting assistance, the employee may stop work and leave the area of perceived danger. An employee who does so would be protected from adverse employment action by the bill’s anti-retaliation provision.
  • Employer Obligations: Beyond promptly responding to the employee’s location, once the device is triggered, covered hotels’ obligations include keeping records of accusations and a list of accused guests for five years, reporting any incident to appropriate law enforcement and cooperating with any investigation, and immediately reassigning the aggrieved employee to an area away from the accused guest’s room, while providing others the option to service the room with a partner or not service the room, for the remainder of the guest’s stay.
    • Guest Conviction: In the event that an accused guest is criminally convicted in connection with an incident brought to the hotel’s attention, the bill would require covered hotels to refuse occupancy for at least three years from the date of the incident.
  • Notice to Employees: The bill would require covered hotels to educate employees about use of the panic device and their rights should they do so and to encourage employees to use the device when appropriate.
  • Notice to Guests: Covered hotels would be required to notify guests of the panic devices by either requiring acknowledgement of the policy upon check in or prominently displaying a sign on the interior side of guest room doors detailing the panic device policy.

New Jersey’s Requirements Compared To Other Jurisdictions

The New Jersey bill contains notable differences as compared to other mandates now in effect. For example, the Chicago ordinance applies to hotels accommodating seven or more guests. Moreover, that ordinance requires a detailed written anti-sexual harassment policy providing aggrieved employees with, among other things, paid time off for certain reasons relating to guest misconduct, and that posters be displayed in multiple languages in areas where employees can reasonably be expected to see them. Chicago also does not provide circumstances under which an accused guest must be denied occupancy. Like Chicago’s ordinance, Seattle’s also allows paid time off to aggrieved employees.

Further unlike New Jersey, where an aggrieved employee alleges assault or sexual misconduct under penalty of perjury, covered hotels in Seattle are prohibited from allowing the accused guest to return for at least three years from the incident (i.e., whether or not the guest is convicted of a crime). Another key distinction is that Seattle hotels need only report allegations of guest misconduct and cooperate in investigations if consented to by the employee. Additionally, non-complaining employees assigned to an accused guest’s room need only be warned of the accused’s presence and advised to proceed with caution.

More generally similar measures have passed or are under consideration in Miami Beach, FL, Long Beach, CA and Oakland, CA. Notably, a California statewide mandate failed in committee, in part due to complaints of expansive employee accommodations. Nevertheless, some hotels have considered implementing panic device systems regardless of legal obligation.

Employer Takeaways

While questions about the burden and expense of compliance and the general panic device landscape may be answered over time, it is clear that this type of legislation has become a hot topic among state and local legislatures. The amended bill now before the New Jersey Senate will likely go through another round of committee review and possible amendments before the full Senate votes on the bill. The original bill was also introduced in the New Jersey Assembly in September, but remains pending in committee. As such, questions about the substance and general fate of the New Jersey mandate remain outstanding.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

By: Christopher Lowe and Alnisa Bell

On Monday, Governor Chris Christie signed the Opportunity to Compete Act (A1999) into law, which is designed to restrict employers from asking about prior criminal convictions on job applications.  Christie enthusiastically hailed New Jersey as “a state that believes every life is precious” and stated, “everyone deserves a second chance . . . Today, we’re banning the box!”

The law, which becomes effective March 1, 2015, applies to employers with 15 or more employees [1] over 20 calendar weeks and who do business, employ persons, or take applications for employment within the state of New Jersey.  The law prohibits employers from asking any questions (whether oral or written) about an applicant’s criminal record during the initial application process, unless the employment is for a position in law enforcement, corrections, the judiciary, homeland security, emergency management, or any other employment position where a criminal history check is required by law, rule or regulation, or where, by law, rule or regulation an arrest or conviction would preclude the person from holding such employment, or for a position designated by the employer as part of program to encourage employment of persons with arrest or conviction records. [2]

In short, subject to the limited exceptions outlined above, employers may inquire into criminal history only after the first interview has been conducted, whether in person or by other means.  Employers may then refuse to hire an applicant based on criminal history properly uncovered, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon.  Of course, an employer’s rejection of an applicant must be consistent with other applicable laws, rules and regulations.

Furthermore, an employer is prohibited from publishing any advertisement for employment that explicitly provides that the employer will not consider persons who have been arrested or convicted of one or more crimes or convictions.  Notwithstanding, this does not apply to an advertisement that solicits applicants for positions exempted under the law, as discussed above.

Most importantly, perhaps, the law provides strong protections for employers.  Specifically, it creates no private right of action, sets no standard of care or duty for employers with respect to other laws, and deems inadmissible any evidence that an employer violated the law, except in an action by the Commissioner of Labor and Workforce Development to enforce the law.

An employer who violates this law shall be held liable for a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

As you may be aware, the new law underwent several major revisions before being signed it into law.  Earlier versions placed more burdensome restrictions on employers, including, among other things, requiring employers to consider in good faith additional factors (e.g. accuracy of the criminal record, rehabilitation efforts, the nature of the offense, and the duties and settings of the job sought or held) before making an adverse employment decision; and outlining certain offenses/crimes that an employer could/could not consider when making an adverse employment decision.   Employers should be mindful that such requirements still exist in other states, as well as under the federal law.


[1] The law is not clear as to whether the employer has to have 15 or more employees within the State of New Jersey.  However, a reasonable reading of the statute, along with court interpretations of similar language in other NJ statutes, suggests that the employer need only have 15 employees in any state(s) to be covered.

[2] Employers are entitled to make inquiries should the applicant voluntarily disclose his/her criminal background.