Most employers are familiar with the basic premise that a tip is a voluntary amount a guest leaves for an employee over the amount due for the goods sold or services rendered, while a service charge is an amount agreed-upon in advance by a venue for services provided, often in connection with large pre-planned events. However, service charges are treated differently than tips for tax and other purposes, and automatic gratuities add an extra complicated layer in this analysis. A brief synopsis of the differences of these terms from a legal perspective is set forth below:
The application of the laws relating to tips, service charges, and gratuities is constantly evolving. Thus, while it is imperative to be familiar and comply with the laws as set forth above, it is equally important to be on the lookout for any changes that occur to these laws, so that you don’t find yourself on the wrong end of a class action lawsuit.
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ADA regulations require hotels to make reasonable modifications in their policies and practices when necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. Because the purpose of a hotel’s website is, in large part, to allow members of the public to review information pertaining to the goods and services available at the hotel and then reserve appropriate guest accommodations, such websites have been found to be subject to the requirements of ADA regulations. According to these regulations, a hotel must identify and describe accessible features in the facilities and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given facility or guest room meets his or her accessibility needs. Thus, rather than alleging that the website itself is inaccessible to users with disabilities, these “new” website accessibility lawsuits claim that a hotel’s website violates the ADA by failing to sufficiently identify and describe the physical “brick and mortar” accessibility features of the hotel.
The promulgation of these regulations have made it easier than ever for plaintiffs to file lawsuits against hotels. Previously, a even a “drive by” plaintiff had to physically go to a hotel, experience some sort of an ADA violation, and then allege an intent to return to the Hotel in order to establish standing necessary to bring a lawsuit. Now, however, Plaintiffs can sue multiple hotels on the same day from the comfort of their own home. They can file these types of lawsuits simply by claiming that they WANTED to visit a specific hotel (or multiple hotels), but were deterred from doing so and/or making a reservation because the hotel’s website failed to provide enough information for them to determine whether the accessibility features of the hotel meets their needs. Thus, a plaintiff can assert a claim against your hotel without ever visiting, without ever making a reservation, and without contacting you first to notify you of the alleged deficiencies on your website.
The amount of these types of lawsuits is increasing exponentially, with several plaintiffs (represented by the same few plaintiff law firms) filing dozens of these suits each and every day. Accordingly, if your hotel does not already provide a plethora of accessibility-related information regarding your property, it is imperative that you make changes to your website as soon as practicable. In particular, you should provide plenty of information about both the common areas of the hotel as well as the accessible guestrooms.
At a minimum, you should include information regarding the accessibility features of the primary features of your hotel — that is, your parking, main entrance, public restrooms, pool lift, restaurants and bars, fitness centers, and business centers. You should also provide information regarding whether there are accessible routes to get to these highly utilized common areas. It is of course equally important that these areas are actually compliant with the ADA, as providing false, inaccurate, or misleading information could result in liability as well.
Additionally, you need to provide as much accessibility-related information as possible regarding the specific room that will be booked. This includes the bed type (double double, queen, king, etc.), number of beds, type of bathroom and shower (roll-in shower, transfer shower, bathtub with accessible bench, etc.), and whether any visual alarms exist.
Based on the dearth of case law in this relatively new and complex area of the law, it is still a bit of a guessing game as to how much information is “sufficient” under the law. And, although ADA compliance is imperative, you also want to strike a balance between the amount of ADA-related information you are providing and various logistical and aesthetic issues that your website may face so that you do not overwhelm the reader. Just keep in mind that at the end of the day, providing as much accessibility related information as possible on your website will significantly increase your compliance with the ADA, and, as a result, will also decrease the chances that you will be hit with this type of “website drive by” lawsuit that so many hotels are now being forced to defend against.
]]>This settlement brings to light the “predictive scheduling” trend that is occurring throughout the nation. Historically, restaurants and retailers have used on-call scheduling to help control labor costs. But as workers began claiming that the daily unpredictability of on-call scheduling hindered their ability to earn a living, hold more than one job, arrange reliable child care, and attend classes, this practice began to change.
Now, to combat worker uncertainty, numerous states and municipalities have begun passing these types of laws, referred to as “predictive scheduling,” “fair scheduling,” “secure scheduling,” and “fair workweek.” For the most part, predictive scheduling laws typically require employers to provide employees (i) with their schedules two to four weeks in advance; and (ii) with predictable pay if changes to work schedules are made within this window. Most of these laws contain exceptions to these requirements where an employer’s inability or failure to provide an employee with scheduled work results from specific causes beyond its control.
While San Francisco was the first locality to pass predictive scheduling legislation in the form of a “Retail Workers Bill of Rights” in November 2014, these types of laws are now becoming much more commonplace.
For example, in May 2017 New York City passed a law requiring fast food employers to schedule non-salaried workers for their shifts at least two weeks in advance, provide workers with good faith estimates of their hours, and pay workers extra when they work closing and then opening shifts back-to-back. The law also creates a private right of action for employees who seek to enforce their rights.
Similarly, a new comprehensive predictive scheduling law took effect for Seattle in July 2017, pursuant to which employers are required, among other things, to provide (i) new employees with a written good faith estimate of their work schedule, including the average number of hours the employee should expect to work as well as the employer’s expectations that an employee will be on call; and (ii) existing employees with a written work schedule, posted in a conspicuous and accessible location, at least 14 days before the first day of the work schedule.
As of August 2017, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, and Rhode Island, as well as numerous municipalities, are considering enacting some type of predictive scheduling laws.
Thus, employers in all states, and in particular those in the retail and food service industries, should closely monitor state and local legislation developments on this issue. In any location in which legislation has been proposed, employers must educate themselves about and prepare themselves for both the practical and legal challenges that changes in these scheduling laws will present to their businesses. However, employers should not wait for predictive scheduling laws to pass in their city or state before updating work scheduling policies, as a quick examination of laws in other jurisdictions provides an outline for what to expect.
Although predictive scheduling laws are designed to benefit employees, employers can, with careful planning, make changes in a way that is least disruptive to their businesses. Further, implementing predictive scheduling changes that incorporate varied work shifts, straightforward schedule changes, and an effective communication process could help employers stay compliant with these evolving laws.
Finally, even if the state or municipality in which you do business is not affected, predictive scheduling could become a practice that improves employee relations and/or employee morale. Thus, employers should evaluate their existing workforce and scheduling practices and consider whether moving toward predictive scheduling may be beneficial for their businesses.
]]>Last year, Massachusetts passed the nation’s first law prohibiting employers from asking job applicants for their current salaries or salary history. Pro employee groups praised this law as a way to counter the pay discrimination that can follow a woman throughout her career when the salary bump she gets with each job move is based on pay that is already less than her male peers. Many advocates for women believe that by basing future salaries on previous wages, employers are perpetuating the long-standing gender based pay gap. Indeed, some argue that the widening of the gender pay gap as women age supports the theory that employers are relying too heavily on previous salaries. Companies and business groups, on the other hand, have expressed their views that this new law is misguided and represents yet another government-mandated intrusion into the way they conduct their businesses. Employers further argue that these laws could have a negative impact on job growth and, in addition, there is nothing unlawful or unfair about using salary history to set pay and manage their costs.
Following the passage of this law in Massachusetts, California enacted a similar ban in January as an amendment to an existing fair pay law and, within the past two months, New York City and Philadelphia each have enacted bans on salary history inquiries (although the Philadelphia ban is currently being challenged in court by the Chamber of Commerce of Greater Philadelphia on the grounds that the ban deprives businesses of their First Amendment rights).
At least eight other states, including Illinois, Maine, Maryland, New Jersey, New York, Pennsylvania, Rhode Island and Vermont currently are considering similar measures. Moreover, Washington D.C.’s city council is considering a similar bill that would require employers to publish salary ranges for open positions. These salary history bans generally are part of broader laws that are attempting to prevent employers from underpaying women. The legislation in Massachusetts and proposed legislation in some other states also prohibit employers from instructing employees not to discuss their wages, although such an instruction would already arguably be prohibited by the National Labor Relations Act, which allows all employees (not just union members) the right to engage in concerted activities relating to terms and conditions of their employment. Generally, the laws allow employers to rely on salary information if/when the job candidate volunteers such information. Employers, however, must be careful to stay clear of claims that the interviewer encouraged the candidate to share his or her salary history.
If this law becomes reality in a state or city in which you operate, you will need to remove salary inquiries from both paper and online application forms. You also will need to update your policies and hiring procedures to ensure that questions regarding salary history are eliminated and that the written policies comply with the law. Ensure all interviewers are instructed as to the new prohibition on such inquiries during the interview process. Importantly, since you will not be able to use previous compensation levels to determine whether a candidate is worth pursuing, it will be critical to include the company’s salary range in a job posting or share that information orally with a candidate early in the interview process, to avoid wasting time and resources pursuing an individual who is not on the same page in terms of their financial expectations.
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