Duff on Hospitality Law

A new statewide leave law that has taken many employers by surprise

In November 2016, Washington voters passed Initiative 1433, best known for increasing Washington’s minimum wage to one of the highest in the nation. However, I-1433 also included a requirement for statewide paid sick leave (“PSL”) for non-exempt employees that has caught many employers by surprise.

The PSL law becomes effective on January 1, 2018, and the Department of Labor and Industries (“L&I”) just published final administrative rules about the law’s requirements. All Washington employers need to review these requirements and take action to ensure compliance.

On Monday, July 25, 2016, the Seattle City Council unanimously voted to place Initiative 124 (“I-124”), entitled the “Seattle Hotel Employees Health and Safety Initiative,” on the November 2016 ballot. Many voters will likely not even bother to look beyond the title before casting their vote. But they should. There is much more to this initiative than the title suggests.

I-124 is comprised of five substantive parts, plus definitions and a “miscellaneous” section (containing perhaps the most important piece of the entire initiative – more on that in the following paragraph). Each of these parts has an admirable statement of purpose (e.g., “Protecting Hotel Employees from Violent Assault and Sexual Harassment”), and a slew of requirements that are allegedly aimed at achieving that purpose. But, as with the title of the entire initiative, each part contains language that prompts countervailing concerns.

In the latest of a series of twists and turns regarding the legality of certain tip pools in Western states, on February 23, 2016, a divided three judge panel of the Ninth Circuit Court of Appeals validated regulations by the Department of Labor (“DOL”) that significantly limit employers’ ability to have tip pools that include more than “customarily and regularly tipped” employees. This development means that employers operating in states or territories in the Ninth Circuit (covering Washington, Oregon, Alaska, Idaho, Montana, Nevada, California, Arizona, Hawaii, Guam, and the Northern Mariana Islands) cannot include in their tip pools “back of the house” employees (such as cooks or dishwashers) or other employees who are not customarily tipped. We examine the impact of and history behind this decision below.

If you are a regular reader of Duff on Hospitality, you are well aware of the recent battle between the U.S. Department of Justice (DOJ), which enforces the Americans With Disabilities Act (ADA), and hospitality owners and trade associations over swimming pool accessibility regulations (see previous posts here and here). With DOJ’s twice-extended deadline for compliance right around the corner on January 31, 2013, and industry-backed legislation dead in Congress committees, pool owners need to focus on compliance with DOJ’s requirements immediately, if they have not already. Mike Brunet, a partner in our Seattle office's labor and employment group and member of our Hospitality Practice Team, has prepared this post to help readers understand the requirements and nuances of the new law. Please feel free to contact Mike Brunet directly if you have any questions.

What are the DOJ requirements?

Under DOJ’s interpretation of the applicable regulations on swimming pool accessibility, owners of pools or spas open to the public must, if “readily achievable” (more on this below), provide at least one accessible means of entry to small swimming pools, which must either be a sloped entry or a pool lift. Larger swimming pools (with more than 300 linear feet of wall) must have two accessible means of entry, one of which must be a sloped entry or a pool lift. Each pool or spa on the property (with a minor exception for clustered spas) must have a separate accessible means of entry. If the means of entry is a pool lift, which is the most popular choice given its cost relative to other means of entry, it must be affixed to the pool deck or apron in some manner, and must be in place and ready for use (including charged batteries, if using a battery-powered lift) during all hours that the pool or spa is open for use.

It has been a busy year thus far for public accommodations issues under the Americans with Disabilities Act (ADA). In this week’s post, Mike Brunet, a member of our Hospitality, Travel & Tourism team, rounds up past issues, discusses a new public accommodations ruling that could affect your business, and speculates as to where public accommodations issues might go in the next year, informed by his attendance at the recent 2012 National ADA Symposium. 

March 15, 2012: ADA revisions become effective.

As detailed in a prior 2012 post, the first significant revisions to public accommodations regulations in almost 20 years became effective March 15, 2012. These revisions are far-ranging, potentially requiring changes to existing and planned features in any place of public accommodation, including hospitality properties and restaurants.

April-May, 2012:  The battle over swimming pool accessibility heats up.

Also discussed in two posts previously this year (here and here), was a battle between the U.S. Department of Justice (DOJ), which enforces ADA regulations, and hospitality owners and trade associations over swimming pool accessibility. DOJ interpreted the new ADA regulations to require fixed (as opposed to portable) swimming pool lifts that could not be shared between pools, while hoteliers raised safety, financial and availability reasons why the DOJ’s interpretation was incorrect. DOJ extended the date to comply with its interpretation until January 13, 2013, and legislation has been introduced in Congress to clarify what is required to comply with swimming pool access regulations.  

In Mike Brunet’s April 16, 2012 post, he discussed the history and potential future of the Department of Justice’s (DOJ) controversial requirement that hoteliers install permanent lifts at all swimming pools to comply with the Americans with Disabilities Act (ADA). Today, he writes about a recent extension on the deadline to satisfy DOJ’s mandate. 

As of May 16, hotel owners and others operating swimming pools open to the public had a mere five days, until May 21, to install permanent pool lifts at their facilities pursuant to the DOJ’s interpretation of the 2010 Standards to the Americans with Disabilities Act. However, on May 17, the DOJ extended the deadline for compliance with its requirement by over eight months, to January 31, 2013. The fact that DOJ extended the deadline is not a total surprise, as the agency has been accepting comments on a possible six-month extension since March of this year, and interested parties, including hoteliers and trade associations, have been vocal in their support. However, the length of the extension is somewhat of a surprise, especially given DOJ’s hard-line stance on this issue in the past.

In Mike Brunet’s January 2012 post, he shared a PowerPoint presentation concerning the 2010 Standards for Accessible Design, adherence to which became mandatory for places of public accommodation, such as hotels, on March 15, 2012. In this month’s post, Mike focuses on one of the most controversial elements of those 2010 Standards, pool accessibility, and brings you up to date on the current requirements.

Thank you Mike . . .

The 2010 Standards require that public accommodations provide at least one accessible means of entry to small swimming pools, which must either be a sloped entry or a pool lift. Larger swimming pools must have two accessible means of entry, one of which must be a sloped entry or a pool lift. After analyzing the cost and safety issues associated with methods of accessible entry, most hoteliers decided that a portable pool lift would be the safest and most cost-effective option. However, the 2010 Standards did not specifically address portable pool lifts or when or how those lifts would be put in place. 

This week’s post comes from Hospitality Team member Mike Brunet (Employment and Litigation), as a follow-up to his January 21, 2011 post on revisions to the public accommodations sections of the Americans with Disabilities Act. Mike recently presented on these revisions to the Seattle Hotel Association, and, in this post, shares his extensive presentation on the ADA revisions, applicable deadlines, and what you should get done before March 15.

In a blog post here almost a year ago, I provided an overview of the first significant revisions to the ADA regulations since 1991. At that time, I focused primarily on the new regulations that became effective in March 2011, related to communications accessibility, service animals, and mobility devices. Hopefully you were able to implement changes to your operations and policies to address those regulations; if not, then this blog post should serve as a reminder to do so as soon as possible.

As lawyers, we’re responsible not only for knowing the existing law, but also keeping a close eye on proposed legislation. This week, Employment law specialist, Mike Brunet, highlights two proposed bills, one national and one local, that could have a huge impact on the hospitality industry.

Employment Law specialist, Mike Brunet, details a growing trend and how it will impact the Seattle-area hospitality industry.

This week’s topic may appear limited in scope, but is representative of a national and local trend. On April 25, 2011, the Seattle City Council unanimously passed an amendment to the City of Seattle’s municipal code to define and punish “wage theft,” the practice of improperly withholding amounts owed to employees. Seattle thus joins a growing number of jurisdictions, including Miami-Dade County, FL, and the cities of Austin, TX, Denver, CO, Kansas City, KS, and San Francisco, CA in having a specific law in place to combat wage theft. A number of legislators in cities, counties, and states around the nation are considering pending bills that would add to this list. Although the goals of Seattle’s Wage Theft Ordinance may be laudable, the scope of the bill could cause well-meaning employers, including hoteliers and restaurateurs, to unintentionally run afoul of it.