Duff on Hospitality Law

Remember when Facebook was just for college kids? Well, things have changed. These days it seems like even giant companies are using social media to show their warm and fuzzy sides and to connect with customers. Obviously, the CEOs of these companies are not spending their time maintaining the accounts and posting clever comments. On the contrary, companies usually dedicate one or more employees to speak on behalf of the company, through a company-sponsored Facebook, Twitter, or other social media account. If done right, an account can build up thousands of followers and grow to host useful information, photos, or communications, becoming an important resource for customers. 

But what happens if the employee who is running a company-sponsored account quits? In a perfect world, that employee would gladly relinquish control of the account back to the company. But what if the employee leaves on bad terms? What if the employee leaves for a rival company? What if the employee changes the password and starts posting negative comments, confidential information, or trade secrets? Sorry to get all lawyer-y, but these are the questions that keep me up nights.

Have you ever seen the iconic advertisements on the side of the Hotel Figueroa in Los Angeles? I bet you have - if not on a commute opportunity through the metropolis, then in a movie. Or, perhaps your business is similar to the Pier House 60, Clearwater Beach Marina Hotel where a condition of approval required compliance with both the public art requirements for the development and the local sign code. If you are interested in how to avoid an eight-armed strangle on your business’ commercial speech, read on for the latest on the enforceability of local sign regulations.

Some employers don’t take the Form I-9 seriously, but they should. The government has significantly increased its audits of all kinds of employers – not just the bad guys - and are assessing hefty fines for mere technical violations. This is particularly true in the hospitality industry, which can be a target for audits and which, because of employee turnover, has seen disproportionately high fines.

Every employer knows that the government’s one-page form, the “Form I-9, Employment Eligibility Verification,” must be completed for every new employee. And most make sure that they get theirs completed in a timely manner. But failure to be vigilant regarding the timelines or whether the forms are completed fully or correctly can cost even the best employer thousands of dollars in fines.

Most employers consider themselves good guys. They don’t purposely seek out or hire employees who are not authorized to be employed in the U.S. But those employers are mistaken if they think that Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security, only audits unscrupulous employers. ICE does focus on certain industries in which there is a history of unauthorized employment, but the reality is that ICE has become very good at conducting audits, and has a team of forensic auditors on staff that it wants to keep busy. ICE does that by initiating seemingly random individual audits or nationwide actions in which up to 1,000 audits are served in a single day, providing as little as three days’ notice before documents have to be surrendered. The writing is on the wall – employers should plan for and expect a government audit of its Form I-9 documentation.

Managing a business is hard. Managing a hospitality business is even harder. You try to have your employees understand that top notch customer service is the be all and end all of your business. They are your reputation. They are your “face.” But, there is always that one employee…

Reality shows that use mystery diners or guests to demonstrate how the bad employee can drag down the entire business may be entertaining for the public, but are nightmares for hospitality managers. It is easy to do the immediate firing when the mystery diners have the bad behavior on film, but that rarely happens in the real world. So, how do you manage the employee who is causing you endless headaches? Set expectations, respond consistently and document your efforts to change the bad behavior.

The United Kingdom's Office of Fair Trading (OFT) issued a Statement of Objections this Tuesday alleging that industry giants Booking.com, Expedia, Inc. and InterContinental Hotels Group violated the UK’s Competition Act of 1998. The Statement of Objections will not be made public, but from OFT’s comments, its rate parity and best rate guarantees that are causing the trouble.

Back in February, we gave you the heads up that Oregon was in the process of adopting the 2009 FDA Food Code. Bar and food cart owners, restaurateurs, and folks employed in the food industry were urged to prepare for new changes in labeling laws and implement best practices to protect themselves from liability once the new rules were announced.

Last month the Federal Trade Commission filed a lawsuit against Wyndham Worldwide Corporations and three of its subsidiaries (“Wyndham”) in U.S. District Court in Arizona. The complaint alleges that Wyndham engaged in unfair and deceptive practices by failing to implement reasonable data security protections on computers used by independently owned Wyndham hotels and because the company’s public privacy policy misrepresented the security measures it actually employed to protect customer’s personal information. Specifically, the Commission alleged that Wyndham:

• • failed to use strong (and in some cases any) passwords to limit access to computer files;
  • failed to use firewalls to separate corporate and hotel computer systems;
  • improperly stored payment information in clear text;
  • failed to implement reasonable measures to detect security breaches;
  • failed to implement proper incident response procedures or  remedial steps after learning of a data breach; and
  • failed to adequately restrict access to company systems by third party vendors.

The claims stem from three separate data breaches over a period of two years in which hackers obtained the private information of more than 600,000 customers, which led to more than $10.6 million in fraudulent charges.

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.  

Just this week, the Seattle Office for Civil Rights released its final regulations for the new Paid Sick/Safe Time ordinance. They arrived not a moment too soon, because the ordinance goes into effect on September 1, 2012. If you haven’t already started planning for compliance, you should now.

The new law will require businesses to accrue and provide paid sick and safe leave for employees when they or their family members are ill or are a victim of domestic violence. The law also includes notice and posting requirements to employees, as well as record keeping and reporting.

In an earlier posting, we walked through the basic requirements of the law. Here is a more detailed look at the law and tips on how you can ensure compliance.

Alcohol has been making the headlines over the past several weeks in Washington as the state prepares for Initiative 1183 to take effect. And while the privatization of liquor sales remains a popular topic, another alcohol-related headline deserves some notice from business owners. The Seattle Times recently described a questionable situation caught by KOMO News cameras: beer in the temporary offices of Kiewit, the construction firm responsible for some of the work being done on Highway 520. Partially in response to the pending investigation by the Department of Labor and Industry, clients and other readers have been asking whether a business can have alcohol in the workplace without running afoul of liquor regulations.