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?

Room poaching occurs when companies position themselves as an event’s housing bureau in order to entice attendees to unwittingly book rooms outside of the official room block. Fake or out-of-block reservations can result in lost reservation fees for hotels, surprise charges and inconvenient and expensive last minute re-booking at alternative hotels for consumers. Further, trademark infringement can erode brand equity and good will between partnering hotels and groups.

In a recent anti-poaching case against Tarzango, an unaffiliated travel agency, U.S. Poultry, was successful in securing a default judgment award of $750,000 for both statutory and common law trademark infringements, unfair and deceptive trade practices, and attorneys’ fees. Tarzango targeted U.S. Poultry’s International Production & Processing Expo (IPPE) attendees with unsolicited room offer emails claiming to be endorsed by, or affiliated with, U.S. Poultry. These emails were brought to the attention of U.S. Poultry via attendee inquiries, and continued to be sent by Tarzango even after a cease and desist letter had been served.

This is the first major verdict for anti-poaching efforts, and the biggest win since a substantial settlement victory in 2008 by the American Society of Association Executives (“ASAE”) who brought suit against Complete Event Planning, Inc. for similar practices. Both cases were aided by general attendee awareness as well as a willingness by the event group to pursue third party violators past the demand letter phase. This allowed the event groups to collect email evidence, and to also demonstrate to poachers that demand letters might have teeth.

The Tarzango case comes on the heels of proposed legislation in both the U.S. House and Senate to make prosecution of poachers easier. The Stop Online Booking Scams Act would create standing for state attorneys general on behalf of the consumer in restitution claims.

While some remedies currently exist, such as restitution claims available to current consumers, and pending legislation, attorneys general, the recent Tarzango case indicates several positive developments and takeaways in the fight against room poaching:

• Trademarking events provides strong legal leverage for prosecution of violators
• Ongoing and collaborative efforts between hotels, event organizers, and other consumers expedite detection of poaching—building these relationships is important
• Congress is showing a significant interest in, and willingness to help protect, the interests of the industry. It’s worth being part of that conversation and those lobbying efforts.

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:

• worksite hazard evaluations;
• injury investigations;
• hazard abatement efforts;
• employee training; and
• recordkeeping.

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:

1. I-9 inspections, civil fines, and referrals for debarment.
2. Enforcement through the arrest of employers who knowingly hire undocumented workers along with those undocumented workers.
3. Outreach programs to instill a culture of compliance and accountability.

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.

Hotel safety protocols

Scene I

Exterior: London, England. Upscale major branded hotel. End of the year.

Interior: A conference is being set up.

Most of the conference is ready to go; we just need to email the hotel and request they present some safety and security measures for our conference attendees at the beginning of the conference. The hotel owner agrees but suggests sending this information to the guests prior to arriving for the conference. We rapidly agree and are shown some of the most thorough policies and procedures we have ever seen. The attendees greatly appreciate having this information pre-conference.

End scene I.

Scene II

Exterior: Convention Destination City, USA. Upscale major branded hotel managed by a third party. End of the year.

Interior: A conference is being set up.

Before the conference prep is complete, we speak to the owner about presenting safety and security protocols for the hotel at the beginning of the conference. We were advised that the hotel did not have such protocols in place and, in fact, that this information had never been requested by a meeting planner before.

End scene II.

As amazed as we were with the information provided by the London Hotel, we were just as dumbfounded by the response of the U.S. hotel. Given the challenging safety and security climate today, every hotel needs safety and security protocols that it is willing to share with conference hosts and attendees. Just as importantly, meeting planners need to request the information be provided to their attendees.

We are not suggesting that a hotel share its internal security response systems or all of its security methods. Hotels should be sharing just what the attendees, who are unfamiliar with the property, need to know so they can respond quickly in case of an incident at the property. This information includes emergency exit locations, safe rooms in the occurrence of a natural disaster and how to dial emergency services from the in-room phone.

As an aside to this, just as meeting planners and corporate travel buyers are ramping up their vetting of hotels from a safety and security perspective, hotels should be vetting the conference prior to entering an agreement to host the event.

Your hotel, employees and guests all benefit from strategically crafted incidence response protocols. We encourage quick development of these procedures before an incident happens.

Authors

Paige Tidwell – Marketing & Social Media Assistant, HospitalityLawyer.com

Paige Tidwell is a junior at the University of Houston, Conrad Hilton College of Hotel and Restaurant Management. She is seeking a Bachelor of Science in Hotel & Restaurant Management with an emphasis in Sales & Marketing. In addition to working for HospitalityLawyer.com, Paige works as a teaching assistant for two professors at the Hilton College where she works with students of all levels. Raised in both Baton Rouge, Louisiana and Houston, Texas, Paige naturally developed a passion for food and people. Her interest in hospitality was cultivated at a young age when she and her dad would cook for their church groups. In her free time, Paige enjoys trying new places to eat with friends and going to the gym.

Stephen Barth – Founder, HospitalityLawyer.com

Stephen Barth, author of Hospitality Law and coauthor of Restaurant Law Basics, is an attorney, the founder of HospitalityLawyer.com, the annual Hospitality Law Conference series, and the Global Travel Risk Summit Series. As a professor at the Conrad N. Hilton College of Hotel and Restaurant Management, University of Houston, he teaches courses in hospitality law and leadership. In addition to legal and risk management insight, Stephen specializes in communicating the importance of Emotional Intelligence in leadership roles; and has provided valuable insight to many companies including The Methodist Hospital System, Best Western Hotels & Resorts, Dine Equity, Business Travel News and Aramark. His fun, fast paced presentations provide practical information and solutions to enhance your personal and professional life.

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.

But rather than dwell on the seemingly endless armed conflict, it’s worthwhile to take a look at the hotel bombing and emphasize once again the critical need for hotel operators to implement effective and smarter security controls aimed at detecting and neutralizing non-traditional or “asymmetric” threats to the sector. It is not enough to erect barriers outside the entrance or to have guests pass through a magnetometer, however inconvenient that may be. A wholesale rethinking of hotel security practices is necessary. Such re-crafting of the process cannot be accomplished using a “one size fits all” approach; rather, a carefully calibrated protocol must be established and implemented for each property bearing in mind the threat environment in which the establishment operates.

Last September’s mass shooting at the Mandalay Bay Resort in Las Vegas was a clarion call for the hospitality sector to take a more proactive approach to security. In the case of Las Vegas, or other tourist and convention oriented cities in the US and Europe, current protocols need to be strengthened and non-traditional measures need to be adopted. A good look at who is checking in-what is he or she about and does the potential guest mesh with the established demographic-should be priority questions. In other words, if you operate a five-star hotel and charge close to $400 per night, should you be concerned about a 21-year-old man who checks in alone? What about a single female of the same age group? And a group of student back-packers?

The answer in our view is while no particular concerns may be apparent at the time of check-in, a person who clearly looks out of place in your property may be a good candidate for a little extra screening. What type of screening can be accomplished to allay concerns about the person? Consider adopting some of the following measures:

• While not possible in every case, a cursory background computer check (think “Google”) can reveal issues that a reservationist, front desk clerk or your hotel website cannot detect at the time of reserving. Has the person got multiple weapons arrests or has he or she been cited for domestic abuse? Has the person been of concern to authorities for any reason, but especially for making threats? You are not required to house each and every guest that has a reservation and you can unilaterally cancel a reservation for security concerns.
• Has the person requested some sort of non-routine access? For example, if the guest asks for a tour of the kitchen or the back office “just to see how it operates”, that is a flag that should immediately go up. Is this pre-operational “casing”? Is it an attempt to discover employee or security protocols? Is there a robbery being planned? Many questions should come to mind here. Clear disobedience of security protocols-for example, unauthorized access to the roof, electrical boxes or rooms, fire alarms or equipment-could be cause for immediate expulsion from the property.
• That “do not disturb” sign on the exterior door handle of the guest room is of concern if it is present for more than say 8 hours at a time. The guest could be amassing weapons, as in the case of the Stephen Paddock, the Las Vegas mass shooter. Or, there could be other illegal activity taking place therein, such as prostitution or drug dealing. Remember that frequent entries and exits of unregistered visitors to the room could be a sign of either. Ensure that hotel management knocks on the door periodically, even if the sign is present. You are not required to provide 100% privacy and safety concerns must take precedence.
• More frequent, overt or covert security rounds are a great source of intelligence on guest activity. Try checking in an “undercover” employee as a guest and allow him or her to mingle with others at the bar, in restaurants, at the pool. The astute person will be able to gather a good deal of information on guest activity. An overt addition to security could be the use of trained canines to detect explosive compounds or the chemical remnants of gunpowder, which is left on weapons, magazines and clothing as a by-product of shooting ammunition. If this had been done in Las Vegas, the presence of dozens of weapons and thousands of rounds of ammunition in the shooter’s guest room might have been discovered in time to prevent the tragedy.

Finally, if you do observe or otherwise detect suspicious activity, the hotel has the right to take quick action to ensure the safety of guests and employees. An innocent person who is expelled from the hotel might be able to raise a valid claim against the property, but a reasonable expulsion of someone who just does not seem “right” or is acting in a way incompatible with security may make the difference between a safe stay for all and a tragedy of immense proportions.

There is no hard and fast, right or wrong protocol in implementing non-traditional and proactive security measures at hospitality locations. Those that are most appropriate will be dictated by events on the ground, intelligence gathered, local and national law enforcement liaison and a good deal of thinking outside the box. The important thing is to not rely exclusively on barriers and door locks. As the threat evolves, so must your security protocols.

• Joint Vision/Motivated Parties – A new brand entering the U.S. has to show that it is fulfilling a niche in the market that has not already been captured. Therefore, in developing its first few hotel projects, finding the right location and developer are paramount. The brand needs to be certain that a developer will be (i) able to source a site that optimizes the brand strategy while offering significant visibility of the new brand to the market, (ii) able to complete the project on time and within their budget (to ensure the project is completed), and (iii) committed to the brand vision so that they will be equally focused on building to brand standards. But this requires quite a balancing act. For example, opening a flagship property in New York City under the new brand may provide great visibility but such a location comes with big city challenges such as union relations, greater regulation, greater cost to develop, and potentially longer lead times to open. From the developer’s perspective, it needs to make sure that the company behind the brand has the resources to support and grow the vision for the new brand and the financial commitment to overcome inevitable initial challenges in rolling out the brand so that the brand has a legitimate opportunity for long-term success.
• Brand Investment – Although existing hotel brands typically allocate their overall brand marketing costs to their hotel owners, developers for new brands will often not be willing to bear the costs of ramping up the marketing efforts of the new brand both because of the significant upfront costs to launch a brand and the lack of a sufficient portfolio of hotels within the new brand to reasonably bear the allocated costs. Also, the brand may be looking to invest marketing dollars well outside the locales of its initial branded hotels in order to extend brand awareness, and to create interest for new developers to build branded hotels in other markets. That said, developers of initial brand hotels also benefit from such initiatives, especially if their hotels are located in gateway markets, so such developers may be more motivated to contribute to marketing campaigns that do not have an immediate impact on their local market.
• Developing Vision – Another consideration for new brands is that the brand standards may not yet be fully defined or may be evolving at the time of the initial project development. This may allow an initial developer to be part of developing the brand vision or, alternatively, may allow the developer to request some concessions or changes to the standards for the project. However, this may also cause frustration between the brand and the developer as there is not a defined set of standards for the brand to point to in negotiating the agreements or requesting capital expenditures. This may be true even if the brand is already established in another market outside the US as some changes to the brand standards may be necessary to adjust the brand for the US market or to comply with US laws. To avoid unnecessary tension between the brand and its initial developers and in order to avoid development delays as these conflicts are ironed out, it is important that the brand and the developer agree upfront on what is meant by the brand’s brand standards; such as, whether there are comparable existing hotels the parties can look to in the future that set the quality level of the brand’s standards, the projected competitive set of hotels to the new hotel, and the projected costs of implementing the standards, from a hard and soft goods perspective and from an operational and staffing perspective.
• Brand Resources – Unless the brand is being launched by an established US brand or an established international brand, there may or may not be a larger platform supporting brand services for the initial hotels opening under the new brand, such as technical services, reservations, and purchasing. So the developer may be agreeing to brand services that may be developed in the future, may never be developed or may never grow beyond a small platform or a limited number of properties. For the developer, it is important to ensure that the cost of any centralized services are fairly allocated to the property (i.e., the first hotel should not bear the burden of the entire centralized services or marketing costs for an international brand and the marketing fee should be fairly allocated between US and international marketing efforts). The brand should be sensitive to these concerns and have a strategy for the timing of development of brand resources in the future to present to any potential developers.
• Brand Longevity – One of the biggest considerations for the brand and the developer is what happens if the brand does not grow or somehow misses the mark. If the hotel is not successful, then both parties may want to either end the relationship or reposition the property. It is important for the parties to discuss the parameters for any exit ahead of time as the brand’s and the developer’s interest may not be aligned once the hotel fails to hit projections.

Above all, both the brand and the developer need to keep in mind that working with a new brand is different than working with an established brand and, to ensure that the project and the brand are a success, both sides need to be flexible in addressing the inevitable challenges of launching a new brand.

Some plaintiffs’ lawyers have found a lucrative niche by engaging the services of “testers” – private citizens who go from business to business looking for ADA violations. The law does not require claimants to notify a business of alleged violations so they might fix the problem prior to filing a lawsuit; hence, many businesses are caught off guard when served with the lawsuit. Worse, they will spend thousands of dollars in attorneys’ fees to resolve a case when the cost of actual compliance is very low. In fact, after the costs of enforcing the technical requirements of the law are paid and the lawyers receive their fees, the plaintiff often receives no damages for the case.

A 21st-Century Twist On The ADA

A modern twist on these standard ADA cases is becoming increasingly prevalent. Now people are using this same section of the ADA to bring allegations that business websites are inaccessible to those with disabilities. No longer do testers need to actually visit a brick-and-mortar establishment, but can merely surf on the World Wide Web looking for those businesses with websites that are not accessible for those with disabilities.

In 2010, the U.S. Department of Justice (USDOJ) issued an Advance Notice of Proposed Rulemaking on the Accessibility of Web Information and Services. The purpose: “to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.” Although the comment period closed in January 2011, the USDOJ has still not published clear guidance or final regulations for the private sector. The latest news suggests that will happen sometime in 2018. For now, though, the lack of clear policy has left the field wide open to unfettered litigation.

The bad news is that the delay in the regulatory process has not slowed the torrent of ADA lawsuits against businesses for alleged failure to provide equal access to web-based services. This means that your hospitality business can be sued by someone who is simply surfing for a lawsuit. You should take steps now to ensure your company’s website is reasonably accommodating those with disabilities.

What You Can Do To Stop The Surfing Suits

Some of the more common website accessibility issues affect individuals with vision or hearing impairments and those who are unable to use a mouse and must navigate with a keyboard, touchscreen, or voice recognition software. Those with visual impairments may need special software to magnify the content of a page, have it read aloud, or to display the text using a braille reader. For those with hearing impairments, the issue is often that audio content on the website does not include closed captioning, or that images do not include captions. You may need to build your website to properly interact with any adaptive software or technology designed for accessibility purposes.

Fortunately, the Web Content Accessibility Guidelines (WCAG) exist to provide web designers with standards for making digital content more accessible to those with disabilities. The USDOJ has made it increasingly clear over the last several years that it considers a website “accessible” if it complies with the standards of the WCAG 2.0 AA. The agency has used this standard in settlement agreements and consent decrees with businesses it believes to have violated the ADA. There is speculation that this will be the standard adopted for the private sector in 2018.

If your company website posts menus, accepts orders, permits customer reviews and testimonials, takes reservations, provides addresses and directions to brick-and-mortar locations, accepts job applications, includes FAQs, has email or chat features, or your business has any other online presence, you should consult with your web designer about ways to make these aspects accessible to those with disabilities. It is both the right and the legal thing to do, and it could save your business the unwanted expense and stress of litigation.

For more information, contact the author at MAnderson@fisherphillips.com or 504.529.3839.

Want to read more about the ADA? Check out these articles:

• Recent Verdict Strengthens the Growing Need for Websites to Increase Accessibility to Disabled Individuals
• ADA Interactive Process: A Quiz for Employers

To address this threat, gig companies can take some relatively easy steps to prevent contractors and departing employees from taking confidential information in the first place, and to protect that information from use by competitors.

Defending Trade Secrets

Businesses in the gig economy create and retain a trove of information that could be valuable in the hands of competitors: customer lists, purchase histories, customer preferences, and all kinds of financial information. And that’s just scratching the surface. Most gig employers have policies restricting employee or contractor use of and access to such information, and most states have laws to protect employers against trade secret theft.

As of 2016, federal law also provides a civil cause of action for trade secret misappropriation.  However, in order to recover punitive damages or attorneys’ fees under the law, the Defend Trade Secrets Act (DTSA) requires employees or contractors to be given notice of whistleblower immunities in all agreements dealing with trade secrets and confidential information. Gig businesses should take advantage of the trade secret protections afforded by this new law by reviewing policies and agreements to ensure they comply with the DTSA’s various provisions.

Protecting Relationships

A gig business’s relationships with its customers, contractors, and vendors are among its most valuable assets. Some employees and contractors are expected to develop lasting relationships on behalf of the company. Well-drafted agreements with these individuals should include a provision prohibiting them from soliciting customers, contractors, and vendors – especially those with whom they interact directly ­– for a reasonable period of time. State laws regarding the validity of non-solicit agreements can vary and can be complicated. That said, an enforceable agreement can be a potent tool to prevent individuals from poaching customers, contractors, or vendors on behalf of a competitor.

Non-Competition Agreements

One of the more sweeping measures a business can take to protect its relationships and confidential information is to ask workers to sign a non-competition agreement. These agreements generally prohibit departing workers from joining a businesses that competes with the company in a specified geographic area for a limited amount of time after their tenure with the company ends. Though a handful of businesses use non-competition agreements liberally, we generally recommend that companies limit these restrictive covenants to higher-level positions. As with the non-solicitation agreements discussed above, state laws vary widely regarding the enforceability of non-competition agreements, so well-tailored agreements are crucial.

Conclusion

With the deluge of stories about data security, now is an opportune time to review and update employment and independent contractor agreements and policies to protect trade secrets, confidential information, and relationships. On this front, an ounce of effort on the front end can save a ton of headaches in the event that an employee or contractor decides to take the company’s valuable information or relationships to a competitor.