Keeping the workplace safe from violent incidents requires hospitality employers to be able to identify warning signs and risk factors. But the work starts before that; it starts with the hiring and employee monitoring processes.

Before And After You Hire: Internal Threats Of Violence

Internal threats of workplace violence require separate considerations from external threats. Preventing internal threats of violence generally requires a focus on pre-employment screening, employee monitoring, and effective employee training. Hospitality managers can think about this as occurring in two phases: before the hire and after the hire.

Before You Hire

An important time to begin taking measures to prevent and minimize workplace violence is during the hiring process. Effective pre-employment screening can help you avoid hiring employees with “red-flag” behavior. Some steps that hospitality employers can take to avoid future instances of workplace violence include:

1. Criminal history and background checks. You are permitted to conduct criminal history and background checks for job applicants. While federal law prohibits the use of this information in ways that would discriminate against or disparately affect protected classes (e.g., race and national origin), you can use previous convictions, and sometimes arrests, as a screening tool, on a case-by-case basis, where such convictions may relate to an essential job requirement. With the level of daily customer contact present in the hospitality industry, properly conducted criminal history screenings, particularly where there is a history of violent crime, can work to prevent future incidents of workplace violence. Note, however, that state and local laws often govern the use of background checks by employers, so you should consult with legal counsel on best practices for implementing this screening tool.
2. Social media. There are currently no federal laws that prevent you from monitoring the social media activity of prospective and current employees. Despite valid privacy concerns and the potential for bias, the social media accounts of both potential and current employees can provide a wealth of information for employers. In the hospitality industry, a large majority of the employees are millennials who are often more comfortable portraying their true thoughts through a computer screen. Through these sites, you may possibly learn of the potential violent predispositions that job applicants may have. A job applicant’s social media presence can demonstrate to you whether warning signs like fascination with violence, for instance, are present. This applies equally to current employees.

It is important to note, however, that the use of social medial as a pre-employment screening tool or a monitoring device for current workers comes with a number of potential pitfalls that you must work diligently to avoid. A potential employee’s social media can also alert employers to information such as the employee’s race, religion, gender, disability, sexual orientation, pregnancy status, etc., none of which can be taken account in the decision to hire an applicant. Moreover, a current employee’s social media feed might reveal private information you might not want to know for fear that your knowledge could be used against you in a later discrimination or retaliation claim. Therefore, you should consult with legal counsel before deciding to implement any sort of social media screening.

After You Hire

Because warning signs of future workplace violence are not always apparent before you hire, you must still take steps to monitor their current employees for potential signs. In the stressful environment of the hospitality industry, it does not take much for a simple disagreement between line cooks in the kitchen to turn into knives being pulled against a coworker. A few tips for employers:

1. You should implement and maintain an effective workplace violence plan. This plan will contain outright bans on certain “trigger” behavior such as harassment, fighting, threatening, and bullying—and outline the discipline for such behavior. The plan may also contain a ban on employees carrying weapons on your premises as well. The plan should provide conflict resolution tips and strategies for employees to use to deescalate a stressful situation.
2. You should train employees on how to identify and report “suspicious behavior,” some of which can include a fascination with violence, excessive verbal threats to other employees or against restaurant patrons, substance or alcohol abuse, obvious indicators of mental instability, or a history of poor impulse control or violence. In training employees on how to identify and report suspicious behavior, you should also have an effective procedure for handling employees that have been reported:
   1. First, management needs to take all threats seriously;
   2. Where the reports are of internal conflicts, harassment, or bullying, you need to work quickly to understand the root of the conflict and diffuse it; and
   3. You should discipline as appropriate in order to clearly demonstrate that any such violent behavior will not be tolerated.
3. Employee training should also include training on conflict resolution between other employees in the workplace. Effective conflict resolution training is necessary to aid employees in immediately deescalating situations that may arise in the workplace. Importantly, these skills can also be used when dealing with the public. In training employees on how to effectively manage conflict and deescalate potential acts of violence, you should adopt the following training guidelines:
   1. Where tempers are running high, it is best to separate the employees and give them space to calm down;
   2. It is important to understand what the nature of the conflict is;
   3. Extreme care should be taken not to pass blame or take sides; and
   4. Management should be informed about the situation as soon as practicable.

The high rate of turnover in the hospitality industry presents an added layer of responsibility as it relates to dealing with internal threats of violence, because you must ensure that your new employees are constantly being trained. As such, you should consider implementing both a new-hire training schedule, as well as periodic refresher trainings.

When It Is Out Of Your Control: External Threats Of Violence

Because hospitality employers welcome the public, monitoring external threats of violence is extremely important. It only takes one angry customer or even a random criminal act to result in serious incidents of workplace violence. Some best practice tips:

1. Just like you have a fire evacuation plan, you should also have plans for other emergencies like active shooters, robberies, or other violent workplace incidents. For instance, your staff should know where to go, who is responsible for contacting emergency services, and where the emergency equipment (e.g., first aid kits) are located. A comprehensive workplace plan is a useful tool in making such designations. Ideally, a workplace plan should contain a procedure for employees to follow in the event of an incident of violence and should identify a designated manager or other responsible employee who will coordinate evacuation or other employee safety efforts, and initiate or maintain contact with law enforcement.
2. Many hospitality businesses operate at late hours, so it is important to structure employee shifts in order to avoid employees closing alone or working in isolated areas late into the night.
3. As with internal threats of violence, it is also important to train employees on effective conflict resolution and deescalating incidents between employees and the patrons, or among patrons. While factors such as whether alcohol is served or not may play a role in how extensively employees should be trained, it is advisable to have at least some level of conflict resolution training.
4. Hospitality operations, like other cash-heavy businesses, are also targets for robbers. You need to keep this in mind and train your employees to be cognizant of how they handle cash in front of customers and other members of the public. Employees also need to be trained on who to contact in case of criminal attacks, and how to behave during attempted robberies in order to deescalate the situation.
5. Where financially practicable, you should consider investing in onsite, visible security. This could include visible security cameras but can go as far as security guards. Having such visible security can serve as a major deterrent for both internal and external acts of workplace violence. Even where it is not financially practicable to make such security investments, you should still consider having this kind of visible security on special occasions where the risk of violence may be heightened—e.g., Super Bowl Sunday, St. Patrick’s Day, New Year’s Eve, etc.

Conclusion

It is important to note that some instances of workplace violence cannot be reasonably foreseen or prevented, mostly due to the unpredictability of human nature. While careful background screenings, social media review, and even putting in place effective policies and procedures for times of violent incidents will go a long way to minimize the occurrence and impact of these incidents, they cannot prevent against some of the recent incidents of workplace violence covered by the media. Regardless, you have steps you can take to prevent and minimize the impact of incidents that may be within your control.

Because several legal issues may arise with an employer’s decision to both implement effective pre-employment screening tools and construct workplace violence plans, you should consult with legal counsel as you develop these procedures. If you need assistance with how to implement best practices to combat workplace violence, contact your Fisher Phillips attorney.

For more information, contact the author at CEnekwa@fisherphillips.com or 404.231.1400.

About Fisher Phillips
Employers often must take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back up management. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases.Whether it’s a class action involving thousands of potential class members, a jury trial with exposure in the millions, or a union organizing effort or strike that could cripple a company, employers with their choice of employment lawyers choose Fisher Phillips to handle their most difficult and dangerous cases.

Hotels invest significant amounts of money and time to recruit, hire and train employees, often using recent developments in advertising (social media), technology (online applications), and psychology (personality and behavioral assessments). So why is it that hotels—after hiring and training—still manage people like they are operating in the 1950s?

From my interactions with hotel operators and hotel employees for the past 30 years, a disconnect continues to exist between those operators and their employees; and that disconnect is primarily driven by the operators’ inability or unwillingness to recognize, comprehend and meet the basic needs of employees.

Below, I have set out 5 reasons why hotels lose their good and often best employees.

1. Not scheduling in advance
As challenging as it may be, hotels must provide employees with their schedules at least two weeks in advance, and three weeks in advance for the holiday season. Employees have lives outside the workplace, and they want to plan those lives. If you are not using a cloud-based scheduling app, then you are way behind the curve on this. Bottom line: by scheduling in advance, you demonstrate to your employees that you care about them; employees do not care how much you know, until they know how much you care.

2. Lousy paid time off (PTO)
A hotel with a shoddy PTO policy reminds me of the last economic crash in 2008 when hotel companies would not allow their employees to travel while simultaneously besmirching the general public and other businesses that cut their travel budgets. Generous PTO is a magnet for good employees, even if it is “use it or lose it” so it does not accrue (a good policy for small operators).

Bottom line: PTO is good for employees, good for productivity and good for the business.

3. Not holding employees accountable
It is often amazing how long hotels take to separate from poor employees. Hold employees accountable to core values and performance targets from the get-go. If they do not comply or perform, coach them and develop a performance improvement plan, then support their development. If it does not work, it is time to go! No more warnings, no suspensions (which is an obsolete tool and creates chaos for the business)—accept the fact that you made a poor hire and ease on down the road, Dorothy.

Bottom line: Good employees like to work with other good employees; if you are not holding your poor performers accountable, your good performers will walk, leaving you with a whole team of poor performers.

4. Not embracing remote work stations
Seriously what is the hold up here? Do you have trust and control issues? Assuming you are utilizing cloud-based platforms (if you are not, stop reading this and learn about them now), working remotely is ideal for marketing, sales, revenue and accounting staff.

I’ve heard of abysmal decisions by hotel sales departments during the last weather challenge in Houston. We had ice and snow, which we never have, so people do not know how to deal with it much less drive in it. The mayor was advising everyone to stay home, but traditional hotel sales execs were pressuring their staff to venture in, telling them to bring a bag to stay overnight in case they could not get back home. This was zero notice for non-essential personnel (or alternates for essential personnel) that had children and pets.

This behavior was incredibly shortsighted and deplorable, putting their employees’ lives at risk for zero benefit; even worse, it was premeditated, not spontaneous split-second decision making. It also demonstrated a total lack of empathy for employees and their lives outside the workplace.

Bottom line: Working remotely, with the right people, the right guidelines, and the right oversight increases productivity and makes for much happier employees.

5. Not being sensitive to employees’ physical health
There are two primary situations at the front desk that stand out here: one is insisting that front-desk associates stand at the desk throughout their shift. Is this some kind of acid test? I hear from many front-desk associates that the standing created leg and back challenges for them and ultimately led to their leaving the hotel and most often the industry.

Over the last 20 years, when I have brought it to the attention of GMs, the response I often hear is “Well, that is what I had to do, so they should, too.” What a ridiculous justification for continuing to insist on an archaic and unhealthy practice (keep in mind that it was reported during the Iraq War that the U.S. used standing for eight hours at a time as a method to break down the enemy during interrogation sessions).

The second situation is stationing smoking and vaping areas near the front entrance. The secondhand smoke and vape (both poison) drifts right into the desk area and, since breathing is not voluntary, the desk agents are forced to breathe it in. This is a reprehensible practice that also alienates customers. Smoke and vapor drift up to 200 feet; please do the math. You would never allow someone to stand at your entrance with a spray bottle of poison misting guests and employees, and yet, that is exactly what you are doing when you allow smoking and vaping near entrances and exits.

I encourage you to immediately add e-cigarettes and vaping to your no-smoking prohibitions in public areas, guestrooms, registration cards and websites. Then strongly consider making your entire premises tobacco and vapor free. You will be amazed how positively it will impact your employees and bottom line; because how often does a decision please 87% of your target market?

Two major cities have responded by enacting ordinances to address the problem, while unions representing hotel employees have raised the issue in collective bargaining. But all hotels, regardless of location or whether they are unionized, should be concerned about the issue and would be wise to take steps to address it.

Cities And Unions Take Steps To Combat Hotel Harassment

As mentioned above, cities and unions alike have initiated responses to address the problem of guest harassment of hotel employees. In November 2016, voters in Seattle approved the Hotel Employees Health and Safety Initiative, which requires hotels to provide a “panic button” to employees working alone in guest rooms. An employee may use the button and stop performing their work if they reasonably believe that an ongoing crime, harassment, or other emergency is happening in their presence.

The law further requires employers to maintain a list of all guests accused of violence or sexual harassment against an employee within the five preceding years. When a listed guest stays at the hotel, employers must notify any employee assigned to work alone in that guest’s room of the situation and warn them to exercise caution. Further, if a guest is accused of assault or harassment of any kind, and that accusation is supported by a sworn statement, the hotel must refuse service to that guest for a period of three years. Finally, Seattle’s new law provides certain protections for employees who report assault or sexual harassment, and requires employers to post notices of the law in the workplace.

In October 2017, Chicago passed similar legislation, called the “Hands Off Pants On” ordinance. Like Seattle’s law, the ordinance requires hotels to provide panic buttons to all employees who work alone in guest rooms or other areas. The ordinance further requires hotels to develop, maintain, and comply with a policy prohibiting sexual harassment. Among other things, the policy must:

• encourage employees to report incidents of sexual harassment and assault by guests;
• describe the procedure that the hotel and employee are to follow when a complaint is made;
• allow employees to stop their work and leave the area if they perceive danger;
• offer employees reassignment for the duration of the offending guest’s stay at the hotel; and
• prohibit retaliation against employees who use the panic button or report sexual assault or harassment.

You should expect to see similar legislation passed in other jurisdictions during the coming months and years. Even if your business does not have operations in Seattle or Chicago, you should consider taking similar steps in an effort to reduce problems and provide safer working conditions for your employees.

In addition to anti-harassment legislation, unions representing hotel employees have prioritized the issue of guest harassment at the collective bargaining table. As a result of negotiations, housekeepers at all unionized hotels in New York City have been equipped with panic buttons since 2013. Just recently, unions representing hotel employees in Las Vegas announced their plan to request panic buttons in upcoming negotiations, and you can be sure the issue will be a top priority for other unions across the country in coming years.

Hotels Everywhere Should Take Preventive Steps Now

Should hotels outside Chicago, Seattle, New York, or Las Vegas be concerned? In short, yes. Under Title VII and many state antidiscrimination statutes, you may be held accountable if an employee is sexually harassed by a hotel guest or other third party. Generally, an employer can be found liable if it knew or should have known of the harassment, and then failed to take prompt and effective remedial action. Moreover, the employer may face tort liability for such harassment if it knew in advance or should have known that a guest posed a risk.

In large measure, the steps you should take to protect employees from guest harassment—and, incidentally, minimize liability from such harassment—are from a familiar playbook. As with any anti-harassment policies, you should clearly state that sexual harassment by guests (or any other third party, for that matter) is unacceptable. The policy should explain how employees should respond if they are subjected to such harassment and provide multiple avenues for reporting an incident. Also include a statement assuring employees that they will not be retaliated against for making such a complaint.

However, having a policy in place is only the first step. You should train employees on your policies, as well as how to respond if they are faced with guest harassment. In the same vein, train management how they are to respond to employee reports of sexual harassment by a guest. In some instances, managers will be required to respond quickly and may not have time to seek guidance from upper-level management, human resources, or legal counsel.

In addition to training your employees, you should conduct assessments of your operating procedures and physical premises to determine what means are available to reduce or eliminate any risks to employees who work alone, such as implementing the panic buttons required in Seattle and Chicago.

Conclusion

In this era of heightened awareness about sexual harassment, all employers need to make sure their employees are afforded a professional working environment. Now that you know how frequently hotel employees encounter naked guests or receive unsolicited kisses, hugs, and propositions for sex, hoteliers are increasingly responsible for protecting their staff from sexual harassment. Your employees need to know that you find these kinds of actions absolutely unacceptable and that you will take every effort to prevent their occurrence. The simple steps outlined above can help to protect your employees, while also minimizing your hotel’s legal liability.

For more information, contact the author at DMackender@fisherphillips.com or 303.218.3650.

The details of the horrific Mandalay Bay attack offer a clear example to the hospitality industry as to just why proactive – and often covert – security standards must be tested and implemented.  The name of the game is to detect, deter or neutralize an attack before it takes place. In order to do this, smart technology and keen intelligence gathering techniques must be deployed. Well-versed analytical personnel must have unfettered access to the intelligence and offer management their professional assessment as to the threat at hand.

We note here some of the suggestions we have provided in recent conversations with hotel security personnel or in hospitality sector security associations or meetings.  If implemented, these revised or updated protocols could further enhance security for guests and employees. But to be effective, they each must be studied by the hotel operator, assessed for potential legal challenges and training must be provided to employees.

Again, with the emphasis on being proactive and getting out in front of potential threats, consider the following measures:

• Ensure your hotel security personnel participate in any local or regional periodic security meetings with their peers from other hotel chains.  That is a great way to share intelligence on criminal or extremist trends affecting the tourism sector and hotels in particular. Even though a particular crime trend may not have reached your geographic area or if it is affecting only brands that do not reflect your  demographic, you still need to be aware of it and prepare for it. And don’t keep the intel to yourself-your staff needs to be aware and that includes employees at the worker-bee level.

• Ensure to provide meaningful and recurrent training to staff with frequent guest interface regarding possible indicators of suspicious activity.  Probably the most important line of defense here is the housekeeping staff, which enters guest rooms on a daily basis, often more than once. Staff should be trained to recognize the signs of potentially unsafe or illegal activity, such as telltale signs of human trafficking or prostitution.  The accumulation of several unmarked boxes, bags or suitcases inconsistent with the number of guests assigned to the room is something noteworthy as well. Any unusual or foul odor or the presence of an unknown substance in any area of the room should trigger a notification to security personnel.  Again, we are reminded of the saying “see something, say something”.

• Room entry when the “do not disturb” sign hangs on the outside of the guest room should not be interpreted as a mandate not to enter.  Each hotel operator will have to establish its own policy with regard to periodic staff entry and as to how long is too long before a knock or a call from the front desk is made.  Entry policy should be closely coordinated with the hotel’s legal counsel.*

*Key Point:  Consider adding a waiver or consent clause to your guest registration paperwork in which the room occupant specifically agrees to periodic entry by hotel staff to ensure the safety of all guests and employees.

• A clear “know your customer” policy should be established.  In other words, hotel security staff or employees at the operator’s corporate headquarters need to implement a cursory background check of certain arriving guests who may seem out of place in the establishment.  For example, if you are welcoming a 20 year old man or woman into your hotel and if the room is in the $400-$500 per night category, you may want to do a “Google” check or similar check on the name. The person has done nothing wrong so far and possibly never will, but in general, a 20 year old does not fit the demographic of a hotel charging that amount of money per night.  You may find nothing, but you may find that the person has had a series of run-ins with the law. That of course does not necessarily mean he or she should be excluded from the premises, but it’s a nice heads up to the staff.
  

• The use of check-in/check-out apps has to be the most frustrating technology out there for hotel security personnel.  It allows the guest to have virtually no interface with the hotel staff in that check in and out is performed electronically and billing is automatically charged to the credit card on file.  Room entry is achieved with a downloaded code or barcode, which the guest holds in proximity to a reader made a part of the exterior door lock. If you use this technology at your hotel, ensure that you DO have interface with the guest during his or her stay by knocking on the door occasionally or by placing calls to the room.

There are many other proactive ways to enhance security at hotels and large venues.  Various technologies are commercially available which permit iris scanning or facial recognition.  Of course, with the adoption of new techniques, some privacy is given up. Individual brands and properties will determine the right mix for their locations, based on customer demographics, prior incidents, crime and terrorism trends and importantly, the law.  Privacy cannot and should not be total in a hotel as guest and employee security and safety must be taken into consideration.

So, what are some best practices?

1. Quality over quantity. Evaluations don’t need to be 10 pages long. Short and to the point is better, especially if that format allows the author to provide some specific examples to support the assessment.
2. Avoid evaluation inflation. What does “exceeds expectations” mean if it is third from the top and right above “average?” To a jury it means the employee is doing a good job, but in your organization it might mean that the employee is one step from being fired.
3. Be specific. Multiple choice rankings work well in large organizations because managers do not like to write narratives, and the rankings allow the accumulation of data that can be useful in establishing trends and metrics. That said, every evaluation should have some narrative! Give examples of what the employee did well, or not so well, and some feedback on how to improve.
4. Evaluate the Evaluator. HR has an important role in ensuring that evaluations are done correctly. That means more than just the mere fact they are completed on time. If a supervisor is giving everyone in his or her department high or low marks, that should raise questions. Similarly, if there is an employee whom everyone knows is having trouble, the evaluation should reflect those problems.
5. Delivery is Key. Lastly, the paper evaluation is only half of the process. Delivering the message is equally important and should not be overlooked. Make time to have a meaningful meeting and not just a five-minute conversation. Reviews should include both praise and constructive feedback on areas for improvement. Ask the employee to provide his or her views on strengths and weaknesses. Many times they will identify the same weaknesses, which softens the blow.

The holidays are a busy and stressful time for everyone. Many companies have moved away from evaluations at the end of the year for this reason, but if not, it is important for this consequential process not to get lost in the shuffle. Supervisors must understand the significance of the process, and the need for both consistency and fairness. Sugarcoating helps no one, and giving everyone high marks diminishes the performance of the organization’s super stars. Balancing all of these interests is critical to creating a successful process that measures and rewards performance, and also protects the integrity of the process in case the company is forced to justify its decisions in litigation.

What is Seasonal Influenza?

Seasonal influenza, also known as the flu, is a very contagious viral disease that spreads through droplets created when an infected person coughs, sneezes, or talks. There are several viruses that cause influenza – including H1N1, H3N2, and influenza B. Influenza vaccines are available and must be received every year to be protective. Protection against infection typically begins within two-to-three weeks of immunization. It is important to note that the flu cannot be treated with antibiotics since it is caused by a virus.

The Current Trend of Seasonal Influenza in the Northern Hemisphere

The influenza season in the Northern Hemisphere generally begins in October and can last as late as May. According to the most recent influenza report from the WHO, dated Nov. 27, overall disease activity in North America continues to increase while activity in Europe remains low. The dominant circulating virus in North America is influenza A(H3N2), while influenza A(H3N2) and influenza B viruses are the primary strains circulating in Europe. Influenza A(H3N2) and influenza B viruses are covered by the traditional influenza vaccine.

Strategies to Prevent the Spread of Influenza in the Workplace:

1. Raise Awareness about Seasonal Influenza

Employees who believe they are at risk of becoming infected with influenza, and who understand the consequences associated with influenza infection, are more likely to alter their behaviors in order to reduce the risk of infection. Therefore, it is important that employers educate workers about how influenza is spread, what symptoms the flu causes, and the potential complications related to influenza infection. This information should be communicated to employees in a number of ways, such as through emails and by placing flyers or posters in high-traffic areas, to maximize visibility.

2. Encourage Proper Coughing Etiquette and Hand Washing

It is extremely important for employers not only to teach and remind employees the proper way to cover coughs and sneezes but also to remind them to regularly wash their hands throughout the flu season.

3. Keep the Workplace Clean

Since the flu can spread on contaminated surfaces or objects, it is extremely important that employers develop procedures and policies that ensure all commonly touched work surfaces, work areas, and equipment – for example, telephones, doorknobs, lunch areas, copy machines, etc. – are cleaned frequently. Routine cleaning agents are sufficient to disinfect surfaces against influenza, but employers should provide easy access to cleaning supplies.

4. Encourage Annual Flu Vaccinations

Even though the effectiveness of influenza vaccines depend on how well-matched the vaccine is to active influenza viruses, influenza vaccination remains an important additional defense against influenza infection. However, vaccination is arguably the most difficult measure to implement due to misconceptions about the influenza vaccine. For example, many people believe that the influenza vaccine makes people sick. In reality, the standard influenza vaccine contains virus that has been inactivated and is, therefore, unable to make people sick. Furthermore, many non-influenza illnesses have symptoms that can be described as flu-like. As a result, individuals may incorrectly attribute such symptoms to a recent vaccination instead of illness due to another infectious agent.

Employers should consider hosting a flu vaccination clinic at their place of business. The US CDC recommends providing vaccines to employees at little-to-no cost and promoting vaccination within the local community. If hosting a flu vaccination clinic is not plausible, employers should consider notifying their employees of local pharmacies and clinics offering influenza vaccinations. Since many pharmacies and clinics are only open during normal business hours, employers should consider allowing their employees the time to go to these clinics while still on the clock.

Conclusion

The flu can cause widespread business disruptions resulting in financial losses. Employers can mitigate such losses by implementing measures that will help prevent the spread of the influenza virus within the workplace: raising awareness about seasonal influenza, promoting proper hygiene, keeping the workplace clean, encouraging employees to receive their annual flu vaccination, and adopting flexible leave plans.

To help keep your workplace well this flu season, we’ve created this handy infographic: Top 6 Tips for Workplace Wellness this Flu Season. Download it now and share with your colleagues.

Besides being eminently re-watchable, the movie also provides valuable instruction on how to throw a proper office holiday party. The folks at the Nakatomi Corporation did some things right, and did some things wrong, when it comes to hosting annual holiday festivities. If you learn from their example this year, you’ll enjoy the holidays knowing that your office party won’t lead to any human resources disasters or lawsuits.

“Can I Get You Anything? Food? Cake? Some Watered-Down Champagne?”

Any discussion of office holiday parties has to start with a discussion about alcohol – the cause of many an HR headache. The alcohol was certainly flowing at the Nakatomi party: the moment McClain stepped into the office, a roving bartender offered him a glass of mystery punch. While there’s nothing inherently wrong with having alcohol available at a holiday party, there are some established best practices when you throw adult beverages into the mix.

First, let’s look at two of the things that Nakatomi did that you should emulate. Number one: they hired professional bartenders to serve the alcohol, which helps avoid a situation where one of your own employees is serving drinks. Professional bartenders are trained to spot attendees who have had more than their fair share and need to be cut off, and they can also limit your own company’s liability. Number two: the company offered a spread of food to go along with the liquor, which helps slow down the processing of alcohol in the body and can help minimize its undesirable side effects. Plus, even the Scroogiest of people love a good holiday treat: even Hans Gruber, the leader of the gang of criminals, snacks on some of the food during the heist.

But there is a long list of things that Nakatomi could have done to handle its liquor better, so to speak. We have no idea if they offered non-alcoholic alternatives to the guests. In fact, manager Holly Gennaro encourages her very-pregnant assistant Ginny to have some champagne, which is one of the more cringe-worthy moments of the movie. They serve a mystery punch to their guests, which (like spiked eggnog) is never a good idea. If your guests don’t know what they’re drinking or how much alcohol they are consuming, they are more likely to become inebriated. Along those lines, shots are a bad choice nearly 100% of the time.

Another problem: the liquor flows freely with no oversight or limitations. In contrast, you should establish a drink ticket system so that your guests are limited in their alcohol consumption, are less likely to become drunk, and more likely to leave the party with their dignity fully intact. Moreover, you should ask a few managers to forego drinking for the night; they can spot problems before they get out of hand, and hang out near the exit doors to prevent people from driving home if they walk out of the party more lit than the holiday tree.

We never find out if Nakatomi planned to close the bar early before the end of the party (as, alas, their party ended prematurely when Gruber and his boys roll up), but you should shut down access to alcohol about an hour before the end of the festivities to help your guests sober up so that they leave filled with holiday spirit, not alcohol and spirits. You can even hold an awards ceremony, make special announcements, or give away door prizes near the end of the evening to keep people sticking around.

“Mr. Mystery Guest – Are You Still There?”

Guests at the office holiday party are a mixed bag; our job is to let the good ones in and keep the bad ones out. Nakatomi Corporation made one smart move in this regard: they invited spouses and significant others to attend (well, at least one spouse that we know of). Employee’s significant others do some of the babysitting for you, as their attendance will reduce the chances of crude and unprofessional behavior among your workforce. People tend to make more scrupulous choices when they are in the presence of loved ones. Likewise, those loved ones are likely to pressure their counterparts to act right.

At the same time, you should do your best to prevent unwanted gate-crashers from attending. It is doubtful that a band of well-armed European safe-crackers will crash your party, but it is possible that your employees’ friends might decide to stop in for the fun if nobody is guarding the door. That can be a recipe for trouble. Nakatomi stationed a building security guard in the lobby to admit known guests. Likewise, you should have someone make sure that the only people who are enjoying your party are invited guests.

“Welcome To The Party, Pal!”

Attendance at your party should be voluntary, not mandatory. After all, you might have some employees whose religious beliefs prevent them from celebrating holidays. Or you might have recovering alcoholics who would prefer not to be in the presence of liquor. Nakatomi violates this rule by holding the party at the office at the end of a work day (Christmas Eve, no less!), so if you do the same, make sure you let your employees know they don’t have to stick around if they don’t want to.

At the same time, don’t be a Scrooge and make your employees work during the party. At the beginning of the movie, the party is already in full swing, and Gennaro’s assistant Ginny is still hard at work finishing up some paperwork while everyone else is having a good time. Besides being a possible wage and hour problem, this approach will surely kill everyone’s holiday vibe. If you want loyal employees with good morale, don’t make them work late and miss the party.

“Yippee-Ki-Yay, #$@&%*!”

The whole point of hosting a holiday party is so that you can thank your employees and collectively have a good time with them. And while you don’t want to be a party pooper, you also don’t want the party to be so wild that it later becomes the festive centerpiece of a lawsuit. You should send a communication to all of your employees in advance of the party reminding them to keep it classy, as work rules still apply during the festivities.

This means that you should not tolerate off-color remarks (such as the one referenced in the memorable quote from this section’s subheading), untoward humor, illegal drug use (as demonstrated by the smarmy coworker Harry Ellis in someone else’s office), sexual innuendos or misconduct (such as the amorous couple spending time in the private office), or any other unprofessional behavior. Let your employees know that they are still subject to your regular policies and that violations could lead to disciplinary consequences.

“I’m Argyle…I’m Your Limo Driver”

Another solid move by Nakatomi was hiring a private driver for their guests (or at least for McClain). Argyle the limo driver picked McClain up from the airport and was on standby to drive him wherever he needed to go after the party was over. We’re not saying you need to rent a fleet of limousines to chauffeur your guests around, but you should offer rides to all attendees who are departing the party. You can pay for taxis or set up ride-share cars via a corporate account to make payment easy and rest easy knowing that you won’t be held responsible for any injuries or deaths caused by drunk drivers. This extra expense is the best insurance to keep your employees and the general public safe and spare you from costly liability claims.

“Now I Have A Machine Gun. Ho – Ho – Ho”

The most memorable holiday decoration in the film was the plain, grey sweatshirt worn by one of the criminals, which McClain transformed post-mortem into a classic ugly Christmas sweater with a red Sharpie marker. But keen observers of the film will also note that Nakatomi also set up a few tastefully appointed Christmas trees around the office. Should you be worried if you want to set out holiday decorations at your office party?

Although you may be concerned about political correctness run amok, you will be happy to hear that the Equal Employment Opportunity Commission (EEOC) has said that typical Christmas decorations – wreaths, trees, holiday lights, Santa and reindeer, etc. – are secular symbols and do not automatically create a religious discrimination situation in your private workplace. However, the EEOC’s words of caution from its Compliance Manual are worth noting: “As a best practice, all employers may find that sensitivity to the diversity of their workplace promotes positive employee relations.” In other words, take the specific dynamics of your workplace into account before decorating for the holidays.

Regardless of your office dynamics, the cardinal rule of office holiday decorating is no mistletoe. Careful viewers will see that Nakatomi followed this rule: although they might have a legacy of greed around the globe, at least they knew well enough not to hang what amounts to an invitation for a sexual harassment lawsuit in the office. Avoid the mistletoe and avoid the problems it will inevitably create.

“Nice Suit. John Phillips London. I Have Two Myself.”

Certainly every workplace varies in its location on the style spectrum. Some offices embrace a more business casual, John-McClain-like approach with simple slacks and plaid button-ups. Others are more formal and favor black on black and expensive suits (perfectly coordinated with Heckler & Koch HK94 machine guns, which should be unwelcome at your holiday party and every other day at your office).

Regardless of your company’s normal style, you should still maintain some semblance of a dress code, and your employees should stick with outfits that they would normally wear to work. You should communicate to your employees that they should dress appropriately since it is a work-related event. Revealing clothing is for the night club. Bloody, white muscle tanks are for fighting German terrorists. Neither of those styles have a place at the office holiday party.

“Its Just A Small Token of Appreciation . . . It’s A Rolex”

Maybe you’re thinking that all of this holiday party business sounds more like an obstacle course where you have to outmaneuver employees who are ready to hit you with a lawsuit. If you have an antisocial or poorly behaved workforce, it may be better to show your appreciation in a different way. Holly Gennaro was rewarded for her hard work for the year with a Rolex, for example. Your budget may not contemplate your employees walking out of the office dripping in company-gifted diamonds, but there are alternatives.

Some employees might prefer to take the time that would be otherwise spent at the party as PTO. You could also take the money that you would normally spend on the party and issue bonuses, gift cards, or other treats. Just remember that if you go this nontraditional route, any tangible gifts you offer up should be treated as supplemental wages subject to payroll and income tax.

Authors

Richard Meneghello – Partner, Fisher & Phillips
Katherine Sandberg – Associate, Fisher & Phillips

Often times, employers tend to focus solely on their duty of care obligations to their employees domestically.  Employers, however, would be remiss not to focus on their duty of care to their employees abroad.  The bottom line is that employers need to be familiar with and sufficiently address the issues facing their workers who travel and/or perform work abroad.  Understanding the legal obligations and preventing the risks associated with employee foreign travel and work assignments is imperative for employers, exclusive of size and industry.

Workplace health and safety is a paramount concern in the United States, as evidenced by the Occupational Safety and Health Administration Act of 1970 (“OSHA”) and workers’ compensation laws.  OSHA establishes the primary standards for workplace health and safety and a general duty of care.  OSHA’s main focus is on preventing workplace injuries by imposing obligations upon employers to maintain a safe work environment.  On the other hand, workers’ compensation laws impose responsibilities on an employer to financially compensate an employee who actually suffers an injury or occupational disease in the course of employment.  Although costly and constantly evolving, OSHA and the workers’ compensation system at least provide some level of certainty to an employer regarding its financial and legal responsibilities when an employee is injured, contracts an illness, or dies on the job.

Once a United States employee steps outside of the United States borders, however, employers find themselves outside the confines of these commonly understood and applied protections and laws.  The result is that an employer finds itself subject to a negligence claim with virtually no level of certainty with respect to liability and damages.

The recent increased emphasis on the duty of care and the idea that an employer is responsible for the health, safety, security, and well-being of its globally mobile employees has proved to a daunting and scary concept for employers to comprehend.  To mitigate risks and provide some level of certainty, employers should strive to understand its legal obligations and to mitigate its liability risk through a travel risk management plan that involves assessing company-specific risks and developing policies and procedures, communicating to and training of employees, and documenting and analyzing incidents.

To learn more about employer best practices and drafting a travel risk management plan, please see the following article entitled “Legal Perspective on the Health, Safety & Security Responsibilities for US Mobile Workforce,” which can be found here.  The article was published in partnership with the International SOS Foundation and the American College of Occupational and Environmental Medicine.

MOSTLY HISPANIC KITCHEN STAFF

Mark Austin began working as a cook in the kitchen of Bonefish Grill in April 2015. He was one of two African-Americans working full-time in the kitchen. The other eight kitchen employees were all Hispanic. Kevin Rothery was the restaurant’s on-site manager. When Austin began working in Bonefish’s kitchen, he observed the Hispanic staff would routinely “rub, pinch or smack one another’s backsides as they moved past one another, massage one another’s shoulders and put their arms around one another.” The Hispanic staff also refused to answer Austin’s questions or assist him when he spoke in English. He reported these issues throughout the first few months of his employment without resolution.

A few months after beginning, Austin complained about the kitchen staff’s behavior in touching one another, claiming that both he and the other non-Hispanic employee felt “sexually harassed.” Rothery told Austin that he would “talk to the guys” about the harassment but the behavior did not stop. In fact, Austin’s co-workers began to “look at him and smile” while putting their hands into each other’s pants. Austin voiced his complaints to other managers throughout his employment. He found that “the more he complained, the more vulgar the kitchen staff would get.” He alleged that Rothery was not only aware of the behavior but was “present while the employees mimicked sexual acts.”

COMPLAINTS IGNORED

In September 2015, Austin put his complaints in writing, including the kitchen staff’s “inappropriate sexual games.” Rothery did not follow up on Austin’s written complaint. After Austin complained about a specific employee inappropriately pinching him, Rothery placed that particular employee directly next to Austin on the food prep line.

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Create Exclusive Deals for Your Text Messaging Subscribers

Customer loyalty is important in any industry, but especially in hospitality where competition is fierce. You want your guests to feel valued, and one way to do so is to create exclusive deals that only your subscribers can receive. When your guests feel special, they are more likely to be loyal to your company. When you send out deals through text messaging, make sure that those who are receiving these messages know that the deal is exclusive to texts. With SMS alerts for hotels, you can give your customers discounts on hotel stays, or offer upgrades when bookings are low.

Send Text Messages as Reservation Confirmations

Text messages are an easy way to let a hotel guest know that you have received their request for a booking. Whether the guests want to stay an extra night or is reserving a table at your restaurant, a quick text lets your guest know that the request has been received. While you can take the time to make a phone call to let your guest know the information was received, a text message is faster and a more direct form of communication.

Let Guests Know What is Going on in the Area

Guests feel cared about when you share interesting activities that are going on during their stay. Whether your hotel is hosting a comedy night, or there is a fun event in town, share these events with your guests through text messaging. You’ll be able to reach guests no matter where they are, and you’ll be providing great customer service at the same time.

Texting Can Be Essential for Communicating in a Crisis

It’s simply not possible to call every guest at once, but you can reach all your guests instantly through texting. With two-way texting, you can both send out alerts and also enable guests to respond to confirm their safety or give tips to law enforcement. A real-world example of using texting during a critical situation is Omni Dallas Hotel was able to use their texting platform to ensure the safety of staff and guests when the Dallas police shootings occurred in 2016. They sent a total of four messages during the crisis that allowed them to first alert employees about the issue and then give them the all clear when they hotel had been secured. They said about the whole ordeal that it brought them “great peace of mind to know that we can reach our entire team during events like this.”

Allow Guests to Order Room Service

When you have guests that would prefer to text an order rather than use a phone, text messaging in a room service order provides the opportunity. Once the food has been ordered, you can send out a text to let the guest know that their order has been received. Once the meal is ready for delivery, another text can be sent to the recipient to let them know the meal is on the way to their room. Text messaging makes ordering room service a more streamlined process.

Ask for Hotel Guest Feedback Right Away

It’s important to know if your guests enjoyed their stay at your hotel. If there is a problem, you’ll want to address this problem right away. When you send out a survey to ask for feedback when the guest checks out of your hotel, you are more likely to receive the feedback that you want. Guests will often answer the survey while traveling back home, when the stay is still on their mind. Keep the survey simple so that you receive clear answers to the questions you seek.

Text messaging is an essential tool when you are trying to provide quality customer service. With messaging in place, you can request customer feedback and offer deals that are exclusive to recipients. Texting offers an open form of communication that is clear and direct, giving you the ability to provide excellent customer service at all times.