ADA/Standing
1. Brito v. Wyndham Hotels and Resorts, LLC, 2018 WL 317464 (D. Colo., 01/08/2018). Plaintiff is a paraplegic and requires the use of a wheelchair to ambulate. While at defendant hotel he encountered multiple violations of the Americans with Disabilities Act (ADA) that effected his use and enjoyment of the premises and sued. The hotel challenged plaintiff’s standing. To establish standing, a plaintiff must show, inter alia, that he suffered an injury in fact. To prove that, plaintiff must establish a likelihood that he will return to defendant’s premises. Factors a court considers are the proximity of the business to plaintiff’s residence, the plaintiff’s past patronage of the business, the definitiveness of plaintiff’s plan to return, and the plaintiff’s frequency of travel near defendant. In the complaint plaintiff stated he lives in the same county as defendant, he has frequented defendant hotel for “pleasure purposes,” he was a guest at the premises for a two day stay, and he alleges an intention to return within four months. This constitutes a personal stake in the outcome to constitute standing and avoid dismissal of the complaint.
Bankruptcy
2. In Re Lorraine Hotel 2017 LLC, 2018 WL 5288893 (N.D. Ohio, 10/22/2018). Plaintiff hotel filed a Chapter 11 petition in bankruptcy. The debtor’s sole asset was a 93-room hotel, of which 54 rooms were rentable. The debtor did not have casualty insurance covering destruction of, or damage to, the facility. The Bankruptcy Code, Section 1112(b) authorizes a judge to dismiss or convert a Chapter 11 case to Chapter 7 “for cause.” Cause exists where a debtor fails to maintain appropriate insurance resulting in risk to the estate. The court stated appropriate insurance coverage is of “paramount importance” in this case because of the single asset in the estate and the status of the business as a struggling downtown hotel. The court thus dismissed the Chapter 11 case and denied conversion to Chapter 7. Instead, creditors can pursue their state remedies.
Class Action
3. Valverde v. Xclusive Staffing, Inc., et al, 2018 WL 4178532 (D. Co., 08/31/2018). Plaintiff is an employee of Omni Hotel. Per the written employment policies of the management company that operates the hotel, a $3.00 processing fee is deducted from each paycheck plaintiff and other employees receive. Plaintiff objected and seeks certification of a nationwide class of plaintiffs. Defendant objected arguing the allegations were insufficient to show that plaintiffs from other states were subject to the same policy. The court noted that defendant management company’s policies are national and controlled centrally from its Colorado headquarters. They are contained in its written employment policies used nationwide. The court thus found the evidence sufficient to certify a nationwide class.
Contracts
4. Murphy Elevator Co., Inc., v. Coco Key Hotel & Water Resort, 2018 WL 1747924 (Ohio Appls Crt, 04/11/2018). The parties had a two-year elevator maintenance contract. After the first year and a half, the hotel failed to pay. The elevator company stopped performing and sued for breach of contract. The hotel argued that it should only be liable for the unpaid moneys up to the time plaintiff stopped performing. The court rejected this argument and granted the elevator company lost profits. Noted the court, an award of damages should put the injured party in the same position it would have been in had there been no breach.
5. Stanciel v. Ramada Lansing Hotel and Conference Center, 2018 WL 842907 (Mich. Appls, 02/13/2018). Plaintiff fell when entering a hot tub at defendant hotel. Plaintiff attributes the fall to a broken support bar leading into the tub. Plaintiff sued, and the parties purportedly agreed to a settlement. Defendant prepared a written settlement agreement and submitted it to plaintiff. The documents included a “Medicare addendum.” Defendant’s attorney told plaintiff’s counsel to advise if he had a problem with any of the wording. Plaintiff returned the signed documents to defendant but unilaterally crossed out language in the addendum. Plaintiff now seeks to enforce the settlement agreement. Defendant argued the agreement was not valid because defendant was not willing to agree to the settlement without the eliminated clause. Plaintiff argued the clause that was crossed out was not an essential term of the settlement agreement so there was still a meeting of the minds on all the essential terms. The court ruled the parties did not reach an enforceable settlement agreement. Case dismissed.
6. Claris, Ltd. v. Hotel Development Services, LLC, 2018 WL 3203053 (Crt. Appls, Ohio, 06/29/18). Per contract dated 8/2005, defendant agreed to build plaintiff a 4-floor, 122 room hotel which plaintiff planned to operate as a Candlewood Suites. The construction was completed in late summer 2006. In 2013 the hotel began experiencing water penetration when rain occurred. Plaintiff’s expert witness investigated defendant’s construction work of the hotel’s walls and identified five deficiencies. The expert excluded one of the five as the cause of the water problem but did not identify the extent to which the other four may have contributed to the damage. Therefore, plaintiff failed to establish that a breach of contract by defendant caused the leakage. Thus, the court reversed a jury verdict in favor of plaintiff and directed a verdict for defendant.
7. Couture Hotel Corporate v. US, 2018 WL 3076847 (Crt. of Fed. Clms, 06/21/2018). Plaintiff purchased a $9 million hotel near Nellis Air Force Base intending to participate in the off-base lodging business for visitors to the base utilized when on-base lodging is full. To meet the base’s requirements, plaintiff made modifications costing in excess of $1 million. When the work was completed, defendant advised plaintiff that, due to lowered demand, it was not adding any new facilities to its overflow listings at the time. Plaintiff sued, claiming that defendant’s refusal to permit plaintiff to compete for off-base services violated the Competition in Contracting Act, various associated procurement regulations, and a contract implied-in-fact. The court held for the government finding procurement rules were not violated, and a contract-in-fact did not exist. While the government representative talked to plaintiff about prerequisites to qualify for the lodging overflow business before plaintiff purchased the facility, documents provided to plaintiff clearly stated that a prerequisite to the government signing a contract were various inspections and approvals. Said the court, “[I]n negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied.” The complaint was thus dismissed for failure to state a claim.
Default Judgment
8. Travelodge Hotels, Inc. v. Durga, LLC, 2018 WL 5307809 (D. NJ, 10/26/2018). Defendant was a franchisee of plaintiff. Defendant ceased operating and plaintiff filed suit for damages for breach of contract. Plaintiff ultimately received a default judgment. Defendant now seeks relief from that judgment. He argued his failure to defend was excusable because he was traveling the world searching for experimental medical treatments for their daughter who suffers from a rare anoxic brain injury which worsened about the time of the lawsuit. Per defendant, this search “consumed” his life. The court granted the relief, noting that the defendant’s inattention to the lawsuit was excusable given the daughter’s illness.
Eminent Domain
9. North Carolina Dept. of Transportation v. Laxmi Hotels, Inc., 2018 WL 2207793 (05/15/2018). Defendant operates a Super 8 Motel. The Department of Transportation (DOT) sought to widen and improve the street on which the hotel was located. As a result of the work, the hotel lost several parking spaces. Also, due to a 15-foot tall retaining wall installed, visibility of the facility from the nearby thoroughfares was totally lost. The DOT claims it explained the extent of the work to be performed. The hotel’s president stated the DOT assured him the hotel would not lose any parking spaces and failed to explain the height of the retaining wall. As a result of the lost parking and street visibility, the hotel claims the DOT significantly underpaid for the taking since the loss of parking and visibility severely impacted the value of the hotel. The court agreed that the DOT did not adequately inform the hotel of the extent of the taking of hotel property. The court thus ordered the DOT to provide just compensation. The case was remanded for further calculation of appropriate reimbursement for the hotel.
Employment/Actual Employer
10. Frey v. Hotel Coleman, et al, 2018 WL 4327310 (7th Cir., 2018). Plaintiff worked at a Holiday Inn Express in Algonquin, Illinois. The hotel was owned by Hotel Coleman, Inc. which hired Vaughn Hospitality, Inc. to manage the facility. Vaughn Hospitality consisted of Michael Vaughn and his wife. Plaintiff’s paychecks came from Hotel Coleman; she was trained, supervised, evaluated, assigned, etc. by Vaughn Hospitality. Plaintiff claimed Michael Vaughn sexually harassed her and she filed a claim with the EEOC. She was thereafter fired and sued Hotel Coleman and Vaughn Hospitality for retaliatory discharge. The lower court determined Vaughn Hospitality was not plaintiff’s employer and dismissed the charges against it. Following trial against Hotel Coleman, plaintiff appealed Vaughn Hospitality’s dismissal. The appeals court reviewed several factors to consider when determining who is an employer, the most important being the right to control and supervise the worker. The court vacated the ruling that Vaughn Hospitality was not a joint employer and remanded the case. In doing so the court commented that the district court will “likely” conclude that Vaughn Hospitality was plaintiff’s employer.
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Authors
KAREN MORRIS
(585) 256-0160
Judgekaren@aol.com
Karen Morris is an elected Town Justice in Brighton New York, a Professor of Law at Monroe Community College (MCC), and an author. She was elevated to the title of Distinguished Professor, awarded by the Chancellor of the State University of New York.
She has written several textbooks including numerous editions of Hotel, Restaurant and Travel Law, the latest of which was published in 2017 by Kendall Hunt and won a Textbook Excellence Award from Text and Academic Authors Association. She also wrote two editions of New York Cases in Business Law for Cengage Publishing. In 2011, she published Law Made Fun through Harry Potter’s Adventures, and in 2017, Law Made Fun through Downton Abbey. She also co-authors Criminal Law in New York, a treatise for lawyers. She writes a column for Hotel Management Magazine entitled, Legally Speaking, and a blog for Cengage Publishing Company on the law underpinning the news.
Among the courses she has taught are Hotel and Restaurant Law, Business Law I and II, Constitutional Law, Movies and the Law, “The Michael Jackson Trial” and “O.J. Simpson 101; Understanding Our Criminal Justice System.” Her course offerings include some in traditional classroom settings and others online. She won the Excellence in Teaching Award in 1994, having been selected by her peers, and the Chancellor’s Award for Teaching Excellence in 2002, conferred by the Chancellor of the State University of New York.
DIANA S. BARBER
(404) 822-0736
dsbarber@gsu.edu
Diana@LodgeLawConsulting.com
Diana S. Barber, J.D., CHE, CWP is currently an adjunct professor teaching hospitality law and hospitality human resource management at Georgia State University in Atlanta, GA. In addition, she conducts a one-day workshop on contracting and risk management for the Events and Meeting Planning Certificate Program offered by The University of Georgia in Athens, Georgia.
In 2017, Diana became a co-author of Hospitality Law, Managing Legal Issues in the Hospitality Industry (5th Edition), along with Stephen Barth.
Ms. Barber is a recipient of the J. Mack Robinson College of Business Teaching Excellence Award in 2011 and was awarded 2011 Study Abroad Program Director of the Year by Georgia State University. In addition, Ms. Barber is the recipient of the 2010 Hospitality Faculty of the Year award and in 2012, received a Certificate of Recognition from the Career Management Center for the J. Mack Robinson College of Business. Ms. Barber is a member of Phi Beta Delta, an honor society for international scholars. Diana also completed her certification as a Certified Wedding Planner through the nationally recognized [the] Bridal Society.
Ms. Barber has recently launched a consulting/speaking company called LodgeLaw Consulting using her combined academic and hospitality legal skills; specializing in providing education to hospitality companies on preventative measures to reduce legal exposure, as well as a full range of legal services to hotels, motels, restaurants, event planning companies and private clubs. She has over thirty years of legal hospitality experience. Diana began her law practice as an associate attorney at King & Spalding in Atlanta, Georgia after graduating cum laude from Walter F. George School of Law at Mercer University in Macon, Georgia. She then spent over fourteen years with The Ritz-Carlton Hotel Company, LLC serving as vice president and associate general counsel. She is a member of the State Bar of Georgia, G.A.H.A., and the Georgia Hotel & Lodging Association (“GHLA”).
]]>Background About Ergonomics
An ergonomic hazard is a physical factor within the work environment that has the potential to cause a musculoskeletal disorder (MSD). MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system; i.e., muscles, tendons, ligaments, nerves, discs, blood vessels, etc. Common ergonomic hazards include repetitive movement, manual handling, workplace design, uncomfortable workstation height, and awkward body positioning. The most frequent ergonomic injuries (or musculoskeletal disorders) include muscle/tendon strains, sprains, and back pains, Carpal Tunnel Syndrome, Tendonitis, Degenerative Disc Disease, Ruptured / Herniated Disc, etc., caused by performing the same motion over and over again (such as vacuuming), overexertion of physical force (lifting heavy objects), or working while in an awkward position (twisting your body to reach up or down to perform a work task).
MSDs are the single most common type of work related injury. According to Bureau of Labor Statistics data, MSDs alone account for nearly 30% of all worker’s compensation costs. OSHA estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses (approx. 34% of all lost workdays reported to the BLS), and employers spend as much as $20 billion a year on direct costs for MSD-related injuries and up 5x that on indirect costs (e.g., lost productivity, hiring and training replacement workers, etc.).
Federal OSHA’s Ergonomics Enforcement Policy
Nevertheless, federal OSHA has been lost in the woods for years searching for a coherent ergonomics enforcement policy. In the final days of the Clinton Administration in November 2000, federal OSHA promulgated an extremely controversial midnight Ergonomics Standard, requiring employers to take measures to curb ergonomic injuries in the workplace. Days later, utilizing the Congressional Review Act (CRA), the Republican Congress voted to overturn the ergonomics regulation and newly elected President George W. Bush signed the resolution of disapproval, repealing the ergonomics standard. Because the CRA prevents the agency from promulgating a substantially similar regulation, ergonomic injuries have since gone unregulated, other than sparing use of the general duty clause.
Although employers in states subject to federal OSHA jurisdiction have thus been able to adopt a wait-and-see approach with respect to ergonomics enforcement generally, and specifically how the Trump Administration will roll-out its overall deregulation agenda to workplace safety matters, some states with their own OSH Programs are stepping in to fill the void.
Cal/OSHA on Ergonomics
To no one’s surprise, California is one state pushing progressive new worker safety regulatory requirements, even as federal OSHA retreats in that area. One significant new move by Cal-OSHA is the recently finalized safety standard on Hotel Housekeeping Musculoskeletal Injury Prevention. The new standard, which will be enforced by Cal/OSHA, was approved on March 9th by the Office of Administrative Law, and will become effective July 1, 2018.
This standard, which focuses on ergonomic hazards associated with housekeeping positions, follows closely on the heels of a series of “panic button” ordinances enacted by several large cities across the country to protect housekeepers from sexual assault by hotel guests and/or visitors.
California adopted the new workplace safety and health regulation to prevent and reduce work-related injuries to housekeepers in the hotel and hospitality industry. This is the first ergonomic standard in the nation written specifically to protect hotel housekeepers. In a press release announcing the final standard, Cal/OSHA’s Chief Juliann Sum explained:
“Hotel housekeepers have higher rates of acute and cumulative injuries compared to workers in other industries, and data shows those injuries have steadily increased . . . This regulation requires employers to identify, evaluate and correct housekeeping-related hazards with the involvement of housekeepers and their union representative.”
The standard, applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public, from high-end hotels and resorts, to motels, inns and bed & breakfasts. The standard specifically excludes from this definition hospitals, nursing homes, residential communities, prisons, shelters, boarding schools and worker housing.
Covered establishments will be required, under the new standard, to develop, implement and maintain a written Musculoskeletal Injury Prevention Program (“MIPP”) that is tailored to hazards associated with housekeeping. Employers have the option of including the MIPP with their preexisting Injury & Illness Prevention Program (“IIPP”) or to create a standalone program specifically for housekeeping MSD risks.
Regardless of its form, the MIPP must be available to covered employees on any shift. Notably, employees must also be able to access the MIPP electronically — a requirement that may pose a challenge to smaller establishments.
The required elements of a housekeeping MIPP will be familiar to any employer that has developed an IIPP, which should already include:
Notably, covered employers must also complete an initial worksite assessment within three months of the effective date of the standard, which assessment is intended to identify and address a variety of potential ergonomic risk factors, ranging from unpredictable trauma occurrences such as slips, trips and falls, to more traditional repetitive stress MSD concerns such as regular and frequent reaching above shoulder height, lifting, bending, kneeling, squatting, pulling and/or pushing.
Perhaps most controversial about Cal/OSHA’s new Hotel Housekeeping Ergo rule, though, is the agency’s effort to wade into operational concerns by requiring employers to assess “excessive work rates” as well as “inadequate recovery time” between tasks.
Covered employers should act promptly so they are prepared once the standard goes into effect in July of this year. Lodging establishments that wait until the last minute will be feeling the heat as they attempt to develop the required program and conduct the initial worksite assessment within three months of the standard’s effective date.
* * * * *
For more information about Cal/OSHA’s new Hotel Housekeeping Ergonomics Rule and other Cal/OSHA developments, join Conn Maciel Carey attorneys for a complimentary webinar on July 10, 2018 – “New Cal/OSHA Issues California Employers Must Track.”
Authors
Andrew Sommer – Partner, Conn Maciel Carey
Andrew J. Sommer is a partner in the Labor • Employment Group and OSHA • Workplace Safety Group. He counsels clients on a broad spectrum of employment-related matters as well as matters involving OSHA and Cal/OSHA.
Aaron Gelb – Partner, Conn Maciel Carey
Aaron R. Gelb is a partner in Conn Maciel Carey’s Chicago office. He specializes in labor and employment, and OSHA litigation.
]]>In a speech given to the Heritage Foundation in October 2017, the Acting Director of ICE, Thomas Homan, indicated that he expects the number of worksite investigations to increase “four to five times” in the coming years. According to Homan, “we’re taking worksite enforcement very hard this year. We’ve already increased the number of inspections and worksite operations, you’re going to see that significantly increase this next fiscal year.”
The communicated immigration priorities of the current administration present a justifiable concern for the hospitality and retail industries and pose real operational, financial, and legal dilemmas for entities in both industries — which tend to employ a large number of immigrant workers. Recent actions by ICE support these concerns and should provide a cautionary tale to both industries.
In January 2018, ICE agents raided dozens of 7-Eleven stores in search of undocumented workers. This raid targeted 98 stores — from Los Angeles to New York — and resulted in 21 arrests. The targets of these raids, however, were not simply the workers. The managers who willingly employ undocumented workers were also a prime target of ICE.
Acting Director Homan described the raids as a warning to other companies that may employ unauthorized employees. According to Homan, “[t]oday’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce. ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.” Derek N. Brenner, acting head of ICE’s Homeland Security Investigations, ominously stated that the 7-Eleven raid was “a harbinger of what’s to come.”
In order to safeguard themselves, businesses in these targeted industries must familiarize themselves with ICE’s worksite enforcement strategy. ICE utilizes a three-prong approach to conduct worksite enforcement:
A notice of inspection from ICE simply notifies business owners that ICE intends to audit hiring records to determine whether the businesses are in compliance with the law. Employers are required to produce their company’s I-9’s within three business days. Should ICE determine that employers are not in compliance with the law, the businesses will likely incur civil fines and possible criminal prosecution should it be determined that they are knowingly violating the law. Civil Penalties can range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end of the spectrum.
In light of the increased focus on workplace enforcement by ICE, how can employers in the hospitality and retail industries ensure that they do not become the next 7-Eleven? In order to be adequately protected and prepared it is recommended that employers conduct internal audits of their Form I-9’s and any related compliance processes and procedures. It is also suggested that any employees who are responsible for maintaining the Form I-9’s be given annual training to ensure that they are kept abreast of any updates in the law. As Benjamin Franklin famously said, “an ounce of prevention is worth a pound of cure” and taking these steps will help employers be prepared when the inevitable ICE storm arrives.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
]]>Earlier this year, a Texas teenager, who was the unfortunate victim of human sex trafficking, filed suit in Harris County Texas against several well-known hotel chains as well various truck stop operators and the website “Backpage.com,” which was alleged to advertise and promote illicit sexual encounters. All businesses named were sued under the theory that these entities profited from the illegal sexual exploitation of a minor. This suit, along with a similar lawsuit filed last year in Pennsylvania, provides yet another cautionary tale to the hospitality industrythat the specter of human trafficking at one of its facilities raises significant concerns of civil liability to both the owner and operators of those facilities.
According to the Texas complaint, “Jane Doe,” alleges that she was involuntarily thrust into the shadowy underworld of human trafficking just prior to her 16th birthday. The suit claims that she was instructed by her trafficker to rent a hotel room, or have her exploiter rent a room, using payment methods which did not provide any identification to the hotel, i.e., a pre-paid credit card or cash. Once inside the room, Jane Doe maintains that she was sexually exploited by a “constant flow of male customers.”
Despite the warning signs raised by pre-paid credit card or cash payment, the complaint alleges that hotel management and staff failed to intervene, contact the police or otherwise prevent the sexual exploitation of minors at their properties. Essentially, Jane Doe contends that her continued sexual exploitation was caused when hotel management “turned a blind eye to the plague of human trafficking and the sexual exploitation of minors at their locations.”
Jane Doe filed her complaint utilizing a Texas law which creates liability for individuals or entities that intentionally or knowingly benefit from participating in a human trafficking venture for damages arising from such trafficking. This statute mirrors the federal Victims of Trafficking and Violence and Protection Act (TVPA) which creates civil liability for various entities, including hotels, restaurants, casinos, and bars, which “knowingly” benefit from human trafficking if it can be demonstrated that they knew or should have known about the illegal venture.
Significantly, liability under the TVPA is not restricted to hotels. Rather, as noted above, a trafficking victim may bring an action against “whoever” knowingly benefits from participation in a venture that they knew or should have known involved sex trafficking. Accordingly, businesses such as restaurants, casinos, bars, and nightclubs must take heed of the potential consequences of ignoring the signs of human trafficking.
Lawsuits filed under the TVPA, or a state counterpart, are likely to cause the hospitality industry much consternation and concern simply because of the significant potential monetary exposure and public relations/reputational risk associated with having a brand connected to human trafficking. The question thus becomes: what is a hospitality related business to do in order to properly shield itself from potential liability?
Since the legal standard is whether the business knew or should have known that human trafficking was occurring in connection with its business, it puts the onus on the business to be self-aware of what is occurring on its property. It is, therefore, crucial that a comprehensive and thorough anti-trafficking compliance program be implemented, including but not limited to, training hotel management and people working in specific departments, such as security, housekeeping, and the front desk, to identify and report human trafficking when they suspect that the illegal activity is occurring in their workplace.
One state has already taken action to ensure that businesses in the hospitality industry have a heightened responsibility in self-policing their properties. In 2016, Connecticut became the first state to pass legislation mandating that all hotel workers receive anti-trafficking training. The training instructs workers on sex and labor trafficking, the legal responsibilities of lodging establishments and practical tools for identifying signs of sex and labor trafficking. The workers also learn how to deter traffickers, report suspected crimes and help victims connect with services. Although Connecticut was the first state to require mandatory training, it is anticipated that it will not be the last. In fact, there is currently a bill before the Florida legislature which would limit the liability for businesses that can demonstrate that they had training and protocols in place to identify trafficking.
The scourge of human trafficking is not going away and will, unfortunately, continue to be synonymous with the hospitality industry. Accordingly, it is imperative that members of the industry proactively engage in anti-trafficking compliance and training in order to combat exploitation and reduce potential civil liability.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
]]>The ransom demand arrived one recent morning by email, after about a dozen guests were locked out of their rooms at the lakeside Alpine hotel in Austria.
The electronic key system at the picturesque Romantik Seehotel Jaegerwirt had been infiltrated, and the hotel was locked out of its own computer system, leaving guests stranded in the lobby, causing confusion and panic.
“Good morning?” the email began, according to the hotel’s managing director, Christoph Brandstaetter. It went on to demand a ransom of two Bitcoins, or about $1,800, and warned that the cost would double if the hotel did not comply with the demand by the end of the day, Jan. 22.
Mr. Brandstaetter said the email included details of a “Bitcoin wallet” — the account in which to deposit the money — and ended with the words, “Have a nice day!”
With the 111-year-old hotel brimming with eager skiers, hikers and vacationers, some having paid about $530 for a suite with a panoramic view and sauna, Mr. Brandstaetter said he decided to cave in.
Guests had already complained that their electronic room keys were not working, and receptionists’ efforts to create new ones had proved futile. Bashing down the doors was not an option.
The reservation system for the hotel in the village of Turracherhöhe, about 90 minutes by car from Salzburg, was paralyzed.
“We were at maximum capacity with 180 guests and decided that it was better to give in,” he said. “The hackers were very pushy.”
Security experts said the attack on the hotel appeared to be a novel example of an increasingly malicious and prevalent type of modern-day piracy.
The weapon? A type of software known as ransomware.
The crime is as simple as it is mendacious. Victims typically receive an email with a link or attachment that contains software that encrypts files on their computer and holds them hostage until they pay a ransom. Many of the hackers who carry out such attacks operate in Russia and Eastern Europe, according to the police, and often demand a ransom in Bitcoin, a digital currency that is hard to trace.
“Ransomware is becoming a pandemic,” said Tony Neate, a former British police officer who investigated cybercrime for 15 years. “With the internet, anything can be switched on and off, from computers to cameras to baby monitors.”
Still, he added, “hacking a hotel and locking people out of their rooms is a new line of attack.”
Mr. Neate, now chief executive of Get Safe Online, a government-backed security charity in Britain, said that demands in ransomware schemes were usually low enough that victims would acquiesce. As a result, however, hackers waged dozens of attacks a day to make them financially viable.
He nevertheless counseled victims not to pay, arguing that that would only further encourage more attacks and that the funds used to pay the ransom would bankroll nefarious activity, including possibly terrorism. Hotels, he warned, should also guard against copycat crimes by reinforcing their digital security.
According to the United States Justice Department, ransomware attacks quadrupled in 2016 to an average of 4,000 a day. The F.B.I. said the costs to victims of such attacks rose to $209 million in the first three months of 2016, compared with $24 million throughout 2015.
It is a sign of the crime’s sinister proliferation that it has also entered popular culture.
In an episode of the legal drama “The Good Wife,” a Russian hacker attacked a law firm in the middle of a prominent case, encrypting its files and demanding a $50,000 ransom. The hacker eventually relented after the firm turned the tables by infecting the extortionist’s computer with propaganda criticizing Russia’s president, Vladimir V. Putin.
In the real world, however, many have been forced to pay up.
Last year, hospitals in California and Kentucky were targeted in ransomware attacks. In one case, a Los Angeles hospital paid more than $17,000 to hackers to restore its computer network, and all of its digital medical files. Other victims in Europe and the United States have included a municipal utility, companies, schools, law firms and police departments.
A recent study by the Institute for Critical Infrastructure Technology, a Washington-based organization focusing on cybersecurity, noted that ransomware threatened to “wreak havoc on America’s critical infrastructure community” and called it the digital equivalent of a “centuries old criminal tactic.”
Mr. Brandstaetter said he had decided to go public with the attack at his hotel so that others would be more vigilant.
To guard against future attacks, however, he said the Romantik Seehotel Jaegerwirt was considering replacing its electronic keys with old-fashioned door locks and real keys of the type used when his great-grandfather founded the hotel.
“The securest way not to get hacked,” he said, “is to be offline and to use keys.”
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]]>Effectively immediately, Gatrell takes over the full management contract of a hotel she has been overseeing as general manager for seven years. Prior to joining the Oswego, Gatrell began her hospitality career in England working for well known chains and brands like Fairmont Hotels & Resorts, Hilton Hotels & Resorts, and Holland America Line. It was during her tenure with the UK’s Gidleigh Park Hotel, a Relais & Chateaux with a two Michelin star restaurant, that she fell in love with smaller, boutique properties. A move to Canada to work with a sister Relais & Chateaux property, Inn at Manitou, had her fall in love with Canada.
“I have been lucky that my 28-year career has allowed me to train in all aspects of hospitality management, from working in food and beverage, to being a director of rooms, to heading up a sales and marketing team and successfully working with a strata property like the Oswego,” says Gatrell.
Gatrell took over management of the Oswego during the 2008 recession and it was struggling. She then led a turn around that has made it one of the most successful strata hotels in British Columbia. A strong believer of promoting from within, Gatrell has worked with local hospitality schools to build her team, and involved the Oswego with the community, sponsoring the Conservatory of Music and events like Victoria’s Pride Parade. She is active on the board of directors for Tourism Victoria and is passionate about co-chairing Artemis Place for Girls, an integrated counselling and educational program which provides a unique alternative to traditional school for 15 – 19-year-old girls.
While her immediate focus will be ensuring the transition for the Oswego to Kingsbridge Management Ltd. is as smooth as possible, Gatrell will begin looking for other hotel management opportunities in Canada, US, and UK.
“My future clients are owners of boutique properties who like their independence and enjoy knowing their hotel is an important player within the local community,” says Gatrell. “I see lots of opportunities here on Vancouver Island, where for the Oswego we have built a strong repeat visitor base among the government, corporate and leisure markets who look for hi-touch, personalized service within the heart of a vibrant community.”
With headquarters in Victoria, BC, Kingsbridge Management Ltd, is a new full-service management company specializing in operating independent, small hotels in Canada, the US and UK.
Click here for the original article.
]]>Led by the National Labor Relations Board, there is a trend to hold multiple parties accountable, not only for their own employees, but also for the employees of their contractors, franchisees and others with whom they do business. This results from an apparent shift in public policy, and the corresponding expanding definition of and greater reliance on “joint employer liability” across administrative agencies, legislative bodies and the courts.
In August 2015, the NLRB issued a decision in Browning-Ferris Industries of California, et al. v. Sanitary Truck Drivers, 362 holding that it was no longer necessary to exercise direct, immediate control over workers to be deemed a joint employer. Rather, if an employer exercises “indirect control” over working conditions or if it has “reserved authority” to do so, it is the joint employer, even over a staffing agency’s employees.
Some states like California have gone even further expanding the scope of liability for employers who contract with temporary staffing agencies. Under California Labor Code Section 2810.3, affected California employers now “share” civil responsibility and liability with their “labor contractors” regarding wages and workers compensation coverage of assigned temporary workers.
Even though the Browning-Ferris ruling involved a contractual relationship between a staffing agency and an employer and not a franchisor-franchisee relationship, there are many parallels between the two. In fact, using similar reasoning, the NLRB has filed complaints against McDonald’s USA with respect to employees of certain of its franchisees, contending that McDonald’s should be held to be a joint employer.
Employees of McDonald’s franchisees have also sued McDonald’s Corporation and McDonald’s USA alleging joint employment liability. While typically relying on traditional common law theories of joint employment liability, these cases are surviving summary judgment under the ostensible agency theory: “Ostensible agency exists where (1) the person dealing with the agent does so with reasonable belief in the agent’s authority; (2) that belief is ‘generated by some act or neglect of the principal sought to be charged’; and (3) the relying party is not negligent.”
There are a number of steps hotel owners, franchisors and managers can take to reduce the risk of liability. In the next part of this series, we address some of these steps.
Arthur Chinski and Ruth L. Seroussi are attorneys with Buchalter Nemer in Los Angeles.
]]>It is also hard to measure the performance of the security department when assessments are largely binary. How do you know if team members are meeting your needs when the expectation is that ‘nothing has happened’?
Irving “Bulla” Eastman knows. As Senior Director Safety and Security for Aqua-Aston Hospitality, he works to ensure the safety and security for the group’s nearly 50 hotels and resorts across the Hawaiian Islands and on the US mainland. I had an opportunity to meet with Bulla at a tourism conference in Hawaii to ask him a few questions. It is rare to find a security director willing to talk so effusively, so I was eager to proceed.
Both the management team and its security officers have had to adjust policies and procedures to be prepared for today’s challenges. This includes training, implementation and coordination of information provided by the Department of Homeland Security.
Security officers are now required by law in the State of Hawaii to be licensed. As licensed security officers, individuals are required to successfully complete a minimum of 8 hours of classroom instruction before they start service, and a minimum of 4 hours of classroom instruction biennially covering topics such as the legal limitations on the actions of guards, access control, safety, fire detection, emergency response, homeland security issues and procedures, techniques of observation and reporting of incidents, the fundamentals of patrolling, professional ethics, and professional image and aloha training.
An understanding that the safety of our guests and employees is the primary responsibility of everyone. This principle extends to every aspect of operations, including not only the obvious threats, such as robberies, fire, assaults and the like, but also the prevention of ‘slip and falls’, minding youngsters around the pool or even the storage of cleaning chemicals. Next, add onto this planning for potential situations, such as natural disasters or external threats.
The easiest way we explain this to our guests, especially in a resort climate, is that we welcome them to ‘our home’ and hope they enjoy their stay as if it were ‘their home’. We want them to feel comfortable, relaxed, safe and secure. In the same breath, we ask them to treat our home like they would their own home and to be mindful of others. Anything that compromises the safety and the security of the property or guests should not be tolerated.
The buy-in has to start at the top with your CEO, then down to the property GM, and ultimately with all of the staff. Additionally, you need a ‘Safety Champion’ or a person who is genuinely focused on the documentation of all of the policies and procedures. We also have risk management consultants who act as ‘mystery shoppers’. They do walkthroughs of each property twice a year, during which they ask employees a variety of questions regarding safety. As examples, we may ask if they know what PPE (personal protective equipment) is, or where the location of the eye wash stations and SDS (safety data sheets) are at their property.
Management companies must have a written manual with detailed procedures for each specific property, covering everything from a theft or a fire to a bomb threat, tsunami or hurricane.
There is a fine line, but a correlative one, between the two. To successfully manage a crisis, preparation before a situation arises is necessary. Crisis communication is managing the flow of information leading up to, during and after a crisis from the management company to its guests, vendors, employees and the general public.
One of the world’s most published writers in hospitality, Larry Mogelonsky is the owner of Hotel Mogel Consulting Limited and founder of LMA Communications Inc., an award-winning marketing agency based in Toronto. His experience encompasses hotel properties around the world, both branded and independent, and ranging from luxury and boutique to select-service. Larry is also a principal of Cayuga Hospitality Consultants and is on several boards for companies focused on hotel technology. His work includes three books “Are You an Ostrich or a Llama?” (2012), “Llamas Rule” (2013) and “Hotel Llama” (2015). You can reach Larry at larry@lma.ca to discuss hotel business challenges or to book speaking engagements.
This article may not be reproduced without the expressed permission of the author.
]]>For a detailed discussion on Chicago’s shared housing ordinance, see Practice Note, Chicago’s Shared Housing Ordinance (IL).
Internet Providers
There are generally two types of internet providers for short-term rentals:
(Chicago Municipal Code § 4-13-100.)
Rental Intermediary
A rental intermediary under the shared housing ordinanceis any person or entity that for compensation or for a fee:
A shared housing unit is a dwelling unit that:
(Chicago Municipal Code §§ 4-6-300, 4-13-100, 4-14-010, and 17-17-0104-S.)
Advertising Platform
An advertising platform is any person or entity that for compensation or for a fee:
(Chicago Municipal Code § 4-13-100.)
An advertising platform typically:
(Chicago Municipal Code § 4-13-100.)
Shared Housing Surcharge and Hotel Accommodations Tax
The shared housing ordinance imposes a tax of 4% of the gross rental or leasing charge for a short-term rental (shared housing surcharge). The purpose of shared housing surcharge is to fund supportive services for:
Up to 8% of the shared housing surcharge is used to enforce the shared housing ordinance with the remaining revenue for supportive services.
The shared housing surcharge is in addition to an existing hotel accommodations tax of 4.5% of the gross rental or leasing charge that is imposed on short-term rentals for a total tax of 8.5%.
(Chicago Municipal Code § 3-24-030.)
License Fees
The shared housing ordinance requires that certain entities and individuals pay a license fee to operate within Chicago.
A rental intermediary must pay a license fee of:
An advertising platform must pay a license fee of:
A shared housing unit operator must pay a license fee of $250.
(Chicago Municipal Code § 4-5-010.)
Obligations and Responsibilities
The shared housing ordinance also:
The shared housing ordinance imposes financial penalties on hosts for noncompliance with the ordinance.
For more information about the ordinance, see City of Chicago: Shared Housing Surcharge. For a copy of the shared housing ordinance, see the Chicago of Chicago’s website.
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]]>This webinar will focus on verbal and nonverbal tools to handle confrontational exchanges with agitated people. We will review the stages of how a confrontational situation typically progresses and how they can be averted. Attendees will learn ways to prevent the incident from becoming personal and getting emotionally charged. This will enhance one’s ability to de-escalate hostility when faced with it. This includes practical measures regarding environment, demeanor, attitude, speech, and body position and setting limitations when dealing with these types of situations. These tools can help one feel more self-confident when handling such situations and prevent them from getting out of control.
This webinar will be done in an interview format, covering the following content:
• Dynamics of a Confrontation
• Underlying Factors Driving Behavior
• Fear and Anxiety
• Non-Verbal De-escalation Techniques
• Verbal De-escalation Techniques
• Typical Progression of a Confrontation
• Recovery Considerations
Reserve your webinar seat now at:
https://attendee.gotowebinar.com/register/8074969900026024707