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H OSPITALITY LAW HOSPITALITY LAWM A R C H 2 0 0 8 Helping the Lodging Industry Face Today’s Legal Challenges

March 2008 Vol. 23, No. 3 Court backs hotel’s right to make personnel decisions ADA Good policies, procedures save tunity to articulate a legitimate, nondiscrimina- Marriott loses battle hotel in age discrimination lawsuit tory reason for the adverse employment action, over accessible golf carts By Carolyn D. Richmond & Eli Z. Freedberg and courts will not question the wisdom of the on its courses ...... 7 It often seems as though an employer has a decision. Roeben v. BG Excelsior LP d/b/a The ARBITRATION thousand eyes looking over its shoulder every Peabody Little Rock, No. 4:06-cv-01643 (JLH) (W.D. Court upholds time a personnel decision is made — eyes ready Ark. 01/03/08). arbitrator’s decision to file a lawsuit or another type of grievance. In this case, Richard Roeben, a former direc- to certify class in FLSA However, every so often a court decision comes tor of purchasing at BG Excelsior LP d/b/a The lawsuit ...... 5 down reminding us that personnel decisions are Peabody Little Rock, brought an action against BREACH OF CONTRACT still the province of the employer, so long as “best The Peabody and two of its officers. Roeben practices” are followed. primarily alleged that The Peabody violated his Restaurant ordered A recent federal court decision out of the rights under Age Discrimination in Employ- to honor contract with Western District of Arkansas highlights that ment Act. janitor ...... 10 good, consistent human resources policies will The Peabody hired Roeben in 2002 when he ENVIRONMENT go a long way in withstanding a discrimination was 67. On Jan. 12, 2006, when Roeben was 70 ASSE to help hospitality lawsuit. The court acknowledged that employ- years old, Jessica Hillman, a Peabody employee, industry go ‘green’ ers have the right to fire at-will employees for received a call from Brenda Tutor, who stated safely ...... 2 good reasons, bad reasons, or no reasons at all, that she worked at a company called AKB Prop- G DISCRIMINATION provided that there was no discriminatory in- erty Preservation. Tutor informed Hillman that ENDER tent involved in the decision to terminate the Roeben had been evicted from his home and that Resort security officer employment. As the Arkansas court demon- AKB’s employees had gone into Roeben’s home could not show company strates, employers are provided with the oppor- (See AGE on page 4) discriminated against her ...... 8 Clerk’s case dismissed for failure to identify owner RELIGIOUS DISCRIMINATION Class certification Lawsuit charges wrong owner the UAW after a majority of eligible employees granted to waiter with negligence for worker’s injuries signed union authorization cards. Shortly after alleging religious By James J. Zuehl and Kyle B. Johansen the employers recognized the UAW, employees discrimination ...... 9 Two recent National Labor Relations Board filed petitions seeking to decertify the UAW. The SAFETY decisions may change how unions are recog- NLRB dismissed both petitions based upon its Going ‘green’ can save nized and the way “employee” is defined under recognition bar doctrine, which prohibits the some green ...... 2 the National Labor Relations Act. Both decisions filing of an election petition by employees for a could have a significant impact on union-orga- reasonable period of time after an employer vol- UNION ACTIVITIES nizing efforts in the hospitality industry, and untarily recognizes a union based upon a card Bellmen fail to show may prevent aggressive organizing tactics em- check majority. hotel violated bargain- ployed by some unions. The NLRB made a significant change to its ing agreement ...... 3 In Dana Corp., 351 NLRB No. 28 (2007), the previous recognition bar doctrine, however. It Employees must show NLRB considered whether neutrality and card held that employees now have 45 days to file a genuine interest in check agreements should act as bars to election decertification petition after they learn that their job ...... 6 petitions. In this case, two separate employers employer voluntarily recognized a union based WORKERS’ COMP had entered into neutrality and card check agree- upon a card check majority. The NLRB made a Employee granted ments with the International Union, United Au- similar change to the contract bar doctrine, find- workers’ comp after tomobile, Aerospace, and Agricultural Imple- ing that a collective bargaining agreement ex- assault by hotel ment Workers of America, AFL–CIO. Under those ecuted on or after the date an employer voluntar- guest ...... 11 agreements, the employers voluntarily recognized (See UNION on page 6) 2

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M A R C H 2 0 0 8 ASSE to help hospitality industry go ‘green’ safely Efforts to make an operation more Throughout the country, every business is discussing plans to become more “green,” tout- Going ‘green’ can save some green ‘green’ can also ing their commitment to the environment and Installing “green” lighting can really make result in improved improving conditions for guests and workers. a difference, not just in helping protect the Hospitality properties that adhere to greener environment but in energy savings. The Ameri- safety and health for business practices are not only benefiting the can Society of Safety Engineers said that Earth, but their reputations, since reports esti- Philadelphia’s Sheraton Rittenhouse Square workers involved saved 78 percent in energy costs with a pay- mate that 43 million travelers prefer to do busi- back in two years when it installed compact and for the general ness with hotels that share their concerns about fluorescent lights, and a hotel in California public. Greening the environment. However, there can be some changed 4,400 incandescent light bulbs, re- safety implications for going green. sulting in a savings of $61,000 a year in efforts eliminate or The American Society of Safety Engineers’ electricity costs equaling 203,000 kilowatt hours and 300,000 pounds of carbon dioxide reduce some tradi- Hospitality Branch recently released a white in the atmosphere. n paper, Safety Implications of Greening that pro- tional risks, but may vides a framework to help hospitality firms go increase existing green while explaining the risks and benefits of The ASSE recommends: some greening programs. • Using more energy-efficient equipment in risks or introduce “Safety, health and environmental profession- heating, cooling and lighting and in construc- new ones. als must understand the implications of this tion materials for remodeling or expansions. increased focus on environmental concerns,” • Reducing the use of hazardous products — David Natalizia, said ASSE Hospitality Branch chairman David or materials. American Society Natalizia. “Efforts to make an operation more • Encouraging employees and guests to ‘green’ can also result in improved safety and recycle. of Safety Engineers health for workers involved and for the general • Using energy-efficient or alternative fuel public. Greening efforts eliminate or reduce some vehicles and encouraging employees to partici- traditional risks, but may increase existing risks pate in ride-share programs. or introduce new ones.” • Promoting water and natural resource The ASSE said the first step hospitality firms conservation, through educating customers should make in a bid to become more environ- and employees on being environmentally mentally friendly is to evaluate their current conscientious. greening status by looking at key performance The ASSE also said it’s imperative for hotels to indicators such as energy and water use, safety have the support of management and create a team metrics, equipment energy efficiency, construc- designated to create a successful green program. tion practices, hazardous chemical use, waste For a complete copy of this report, go to www.asse disposal practices, environmental and safety .org/practicespecialties/hospitality/docs/ training, and legal and regulatory compliance. HospitalityNewsletter1-15-08.pdf. n

HOSPITALITY LAW

Publisher: Kenneth F. Kahn, Esq. VP Marketing/Customer Service: Jana L. Shellington VP Editorial: Claude J. Werder Marketing Director: Lee Ann Tiemann Executive Editor: Candace Golanski Production Director: Joseph Ciocca Managing Editor: Lanie Simpson Publications Director: Roberta J. Crusemire Editor: Angela Childers

Copyright © 2008 LRP PUBLICATIONS This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is provided with the understanding that the publisher and editor are not engaged in rendering legal counsel. If legal advice is required, the service of a competent professional should be sought. Hospitality Law (ISSN 0889-5414) is published monthly for $245.00 per year by LRP Publications, 747 Dresher Road, P.O. Box 980, Horsham, PA 19044-0980, (215) 784-0860. Periodicals postage paid at Horsham, PA. POSTMASTER: Send address changes to Hospitality Law, 747 Dresher Road, P.O. Box 980, Horsham, PA 19044. Editorial offices at 360 Hiatt Drive, Palm Beach Gardens, FL 33418. Tel: (561) 622-6520, Ext. 8721, fax: (561) 622-9060. Authorization to photocopy items for internal or personal use, or the internal or personal use of specific clients, is granted by LRP Publications, for libraries or other users registered with the Copyright Clearance Center (CCC) for a $7.50-per-document fee and a $4.25-per-page fee to be paid directly to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923. Fee Code: 0889-5414/08/$7.50 + $4.25. 3

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M A R C H 2 0 0 8 Bellmen fail to show hotel violated bargaining agreement Bouncer awarded Union could not prove hotel and subjected the group to improper disciplin- implemented new service standards ary sanctions. The group also argued that the $300K after fight led When service standards are modified at your AAA standards reduced tip income because it to facial scarring hotel or restaurant, it’s crucial to ensure that any required the bellmen and doormen to spend more A male bouncer at a time with each guest. McKeesport, Pa., bar was changes in staff expectations are in compliance awarded $300,000 in a with any applicable collective bargaining agree- The union, on behalf of the doormen and personal injury verdict for ments. Union workers at a New York hotel failed bellmen, filed a formal grievance against the the facial scarring he suf- to prove that the hotel violated its agreement by hotel to contest its implementation of the disci- fered after he tried to instituting new service standards, which they plinary system in violation of the CBA. The break up a fight between arbitrator found that the standards were not two nonparty women at claimed resulted in a loss of tip profits. Bishop, et the tavern where he was al. v. Hotel and Allied Services Union Local 758, et al., new and that the union’s grievance be denied. employed. The bouncer No. 04 Civ. 10074 (CSH) (S.D.N.Y. 01/14/08). The bellmen and doormen moved to vacate the alleged that he suffered a Robert Bishop, along with other bellmen and award and claimed they were dissatisfied with nose fracture, multiple doormen at the New York Palace Hotel, were the union’s representation during the arbitra- contusions, and lacera- tion award, as well as the result. The union tions to his face that led members of the Hotel and Allied Services Union. to permanent scarring The group alleged that the hotel breached its claimed that its testimony was disregarded by when he was struck by collective bargaining contract with the union the arbitrator. the codefendant. and that the union breached its duty by failing to The U.S. District Court, Southern District of At the time of the inci- press a grievance on their behalf. New York looked to decisions made by the 2d dent, the bouncer was off- U.S. Circuit Court of Appeals, finding that the duty and Beemer’s had The bellmen and doormen claimed that after dismissed its other secu- the hotel lost one of its diamonds from the Ameri- workers’ complaints regarding the arbitrator’s rity personnel for the can Automobile Association that managers be- fact-finding cannot justify vacatur of the award. evening. The bouncer gan evaluating and disciplining them based on The court granted the hotel’s motion to confirm contended that the tavern the AAA standards, which caused a unilateral the arbitration award and dismissed the work- failed to properly hire, train ers’ complaint. n and supervise its employ- change of work practices in violation of the CBA ees, failed to provide ad- equate security, and Make sure new standards don’t violate bargaining agreement failed to provide a safe environment for its pa- By Elisabeth Moriarty-Ambrozaitis hotel’s AAA rating was reduced that the hotel trons. The bouncer also A recent case in New York, Bishop v. Hotel and began evaluating them using AAA standards. The said that the tavern’s neg- Allied Services Union Local 758, illustrates that bellmen and doormen contended that the hotel’s ligence was the cause of hotels which implement outside standards of ser- imposition of the AAA standards constituted a his injuries. He said that vice may open themselves up to claims from their unilateral change of established work standards. the codefendant inten- unionized employees. In this case, the bellmen They argued that the standards resulted in im- tionally struck him in the and doormen at a hotel brought action against a proper disciplinary sanctions and a reduction of face with brass knuckles, hotel alleging violations stemming from the hotel’s tip income. that the attack was mali- implementation of service standards promulgated At arbitration, the union, on behalf of the cious with the intent to by the American Automobile Association. Specifi- bellmen and doormen, argued that the hotel harm, and that it was un- cally, the bellmen and doormen alleged that the unilaterally created and implemented new and provoked. Beemer’s and hotel improperly used AAA service standards to additional guest service standards, resulting in the codefendant denied evaluate and discipline them, in violation of the an unjust and otherwise improper disciplinary liability, and the tavern collective bargaining agreement. system. The arbitrator rejected the union’s ar- contended that it had no The AAA issues ratings for hotels based upon guments. The arbitrator found that the hotel’s duty to the bouncer. the hotel’s service, décor and amenities. The standards had been in fact for a number of years The case is ratings are based on a number of “diamonds.” As and that no loss of tip income was suffered as a Evanovich v. Beemer’s part of this process, AAA distributes detailed writ- result of the hotel’s usage of AAA standards. Inc.; Molinari (Common ten “standards of service” to hotel managers to The court affirmed the arbitrator’s denial of the Pleas 05018872). This determine a hotel’s rating. The “standards of ser- union’s claims. case appeared in the vice” include the services that bellmen and door- While the arbitrator and court ultimately ruled in January 2008 issue of men are expected to render to guests. the hotel’s favor — the case demonstrates that LRP Publications’ Per- The hotel alleged that it incorporated the AAA hotels should take care in instituting new standards sonal Injury Verdict Re- standards into the hotel’s own standards of ser- of service to ensure that they do not conflict with any views®. For ordering in- vice and instructed the bellmen and doormen to applicable collective bargaining agreement. formation, please call comply as early as 2000. The bellmen and door- Elisabeth Moriarty-Ambrozaitis practices at the (800) 341-7874. n men, however, argued that it was only after the law firm of Seyfarth Shaw LLP. n 4

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M A R C H 2 0 0 8

AGE (continued from page 1) So long as the HLAW comment by Carolyn D. Richmond decision is not based to salvage his personal items. Tutor then in- and Eli Z. Freedberg formed Hillman that during the course of the Not every case will be as straightforward as on unlawful investigation, AKB’s employees came across Roeben. However, employers can decrease anticipated litigation costs by maximizing “best discrimination, the items that they believed belonged to The Peabody. practices.” First, employers must make sure Tutor elaborated that AKB’s employees found that the at-will employment relationship is pro- employer is free to commercial steaks, commercial cleaning sup- tected. An at-will statement should be high- use whatever factor plies, blankets, gold box frames, lobby furniture, lighted in employment applications, offer let- washcloths and towels with The Peabody’s logo, ters, employee handbooks, training manuals and related materials. it wants to terminate and toiletries such as shampoo and conditioner Second, employers should make sure that an employee — fair labeled with The Peabody’s logo. they have well-articulated policies and proce- Almost immediately after this phone call, The dures that are consistently followed by man- or unfair. Peabody commenced an investigation into these agement and employees. Third, as The allegations. The team conducting the investiga- Peabody did in Roeben, employers should — Carolyn D. Richmond make sure that a potentially adverse employ- tion met AKB’s owner at the storage units where ment decision is thoroughly investigated and and Eli Z. Freedberg, the items taken from Roeben’s home were being planned out before the decision is made. Con- attorneys stored. The investigation team viewed the con- firm that the decision is based on legitimate tents of the storage units and interviewed the business interests, and not on an unlawful or n AKB employees who had collected the items from discriminatory basis. Roeben’s home. The team drafted a memo, item- izing the property belonging to The Peabody that ployer offers such a reason, then the burden was found at the storage facility, specifying the shifts back to the employee to provide evi- people interviewed during the investigation and dence to imply that the reason stated by the noting whether the items belonging to the Peabody employer is pretextual. were discarded or maintained. The Peabody’s Upon motion for summary judgment, the Dis- officers gave Roeben the opportunity to respond trict Court held that Roeben failed to present any to the report, and Roeben vigorously denied the evidence supporting the allegation that The allegations. Nevertheless, The Peabody termi- Peabody terminated his employment for any nated Roeben’s employment on the same day reason other than the telephone call from AKB. that the memorandum was distributed. The court held that it did not matter whether Shortly afterward, Roeben sued The Peabody Roeben in fact stole from The Peabody; rather all for violating the ADEA, which states that it is that matters in the context of an age discrimina- unlawful for an employer “to fail or refuse to tion lawsuit is whether age played any role in hire or to discharge any individual or otherwise the employer’s decision to terminate the em- discriminate against any individual with re- ployee. The court determined that age was not a spect to his compensation, terms, conditions, or factor in The Peabody’s decision to fire Roeben privileges of employment, because of such and refused to examine the validity of their true individual’s age.” motive to fire Roeben. The court relied on a long In a disparate treatment case based on indi- line of cases for the proposition that employers rect evidence, the parties proceed under the are free to make employment decisions based traditional burden-shifting framework. This upon mistaken evaluations, personal conflicts framework requires that a plaintiff first make between employees, or even unsound business out a prima facie case of age discrimination by practices. So long as the decision is not based on showing: 1) that the plaintiff is at least 40 years unlawful discrimination, the employer is free to old; 2) that he suffered an adverse employment use whatever factor it wants to terminate an action; 3) that he was meeting the employer’s employee — fair or unfair. Consequently, the reasonable expectations; and 4) that he was District Court awarded summary judgment in replaced by a substantially younger employee. favor of The Peabody. If the plaintiff is able to make out the prima facie Carolyn D. Richmond is cochair of the Hospitality case, then the burden shifts onto the employer to Practice Group and partner at the law firm of Fox provide a legitimate, nondiscriminatory reason Rothschild LLP. Eli Z. Freedberg is an associate in for the adverse employment action. If the em- Fox Rothschild’s New York office. n 5

H OSPITALITY LAW

M A R C H 2 0 0 8 Court upholds arbitrator’s decision to certify class Restaurant chain’s mandatory Class action lawsuit arbitration didn’t protect it from class Revisit reasons for arbitration policies filed by stockholders Instituting a mandatory arbitration can be a Several large restaurant chains, including of Panera restaurants A class action lawsuit helpful way for companies to handle disputes Ryan’s Restaurants and Waffle House, have at was recently filed by with employees. However, an arbitration policy one time instituted arbitration policies similar to the one used by Long John Silver’s, and these stockholders of Panera should not be implemented in a bid to avoid policies have been challenged by employees Bread Co., alleging that class certification of employees. A Circuit Court in the courts. the restaurant chain’s affirmed an arbitrator’s award of class certifi- Paul Mollica, a partner with the Chicago law officers and directors violated federal securi- cation to employees who claimed their restau- firm of Meites, Mulder, Mollica and Glink, said ties laws. rant chain violated the Fair Labor Standards this case shows the importance of keeping abreast of the law and how it might affect a The suit was filed by Act. Long John Silver’s Restaurants v. Cole, company’s arbitration policy. Schatz Nobel Izard PC in Kaufman and McWhorter, No. 06-1259 (4th Cir. “Any company that has an arbitration policy the U.S. District Court, 01/28/08). need[s] to keep constant watch on the state of Eastern District of Mis- souri on behalf of indi- Erin Cole, Nick Kaufman and Victoria case law,” he said. viduals who purchased McWhorter were all employees of Long John Mollica said that companies that intend to implement an arbitration policy in the hopes of Panera stock between Silver’s Restaurants. The three said the company avoiding any class action lawsuits could end Nov. 1, 2005, and July violated the FLSA by failing to pay them and up surprised. He also said that in his experi- 26, 2006. The complaint other employees overtime wages. The three held ence, employees fare just as well as employ- alleges that company leaders violated federal managerial roles and said the restaurant en- ers or better in arbitration compared with the securities laws by issu- gaged in unlawful employment practices that results in litigation. “Arbitrators try to reach sensible decisions; ing a series of materially included payroll deductions and salary … overall [this decision] struck me as a sensible false and misleading givebacks to cover losses in the company’s res- result; it affirmed the arbitrator’s decision, which statements. Specifically, taurant operations. was well within his discretion,” he said. attorneys said the com- pany highlighted its in- In 1995, the restaurant chain implemented a If your restaurant is considering implement- creasing systemwide mandatory arbitration policy, and in January ing a mandatory arbitration policy, Mollica cau- tions restaurants to think twice or consider using sales and, as a result, 2004, Cole and Kaufman initiated arbitration a voluntary arbitration policy. continuously increased proceedings on behalf of themselves and others “In general, employers are finding that if they its earnings guidance. similarly situated. An arbitrator ruled that the set up mandatory arbitration policies, employ- Wayne T. Boulton, at- torney with the firm, said arbitration agreement did not preclude a class ees are more likely to raise claims and the the company was also arbitration proceeding and later issued a class arbitrators are more likely to try to reach in between, reasonable outcomes for employees rapidly opening new lo- award to the employees. and employers,” he said. “If the goal is to mini- cations throughout the The arbitrator ruled that the employees could mize claims or the expense of litigating them, I United States. Unbe- serve as representative plaintiffs in an “opt-out” don’t know that either of those things has really knownst to investors, class arbitration proceeding, with current and panned out.” the complaint alleges, Panera’s aggressive former managerial employees with potential For more information, contact Paul Mollica at (312) 263-0272. n growth strategy was caus- FLSA claims comprising the class. ing the company to expe- Long John Silver’s filed a request to vacate the rience declining sales at award, but the U.S. District Court, District of fundamental and substantive, is not waivable … its existing stores. South Carolina denied Long John Silver’s re- although LJS’s references to the text and legisla- On July 26, 2006, Panera announced its fi- quest for relief. The restaurant chain appealed to tive history of the FLSA reassure us of Congress’ nancial results for the the 4th U.S. Circuit Court of Appeals, contending intention that the ‘opt-in’ procedure should second quarter of 2006. that the District Court should have vacated the apply in arbitration as in court proceedings, On this news, the price of class award to the employees. Long John Silver’s they fail to also convince us that Congress ex- Panera common stock argued that the arbitrator manifestly disregarded pressly intended that the ‘opt-in’ procedure fell $7.34 per share, or approximately 12 per- controlling legal principles and exceeded the could not be waived by the parties’ agreement to cent, to close at $51.93 scope of his authority by certifying the class an alternate procedure.” per share. under the “opt-out” provision. The court found that because the FLSA does Contact Wayne T. The court stated, “LJS asserts, as a threshold not explicitly overrule the opt-out feature of the Boulton at (800) 797- 5499 or by e-mail at matter, that an employee cannot be made a party arbitration agreement, that the arbitrator did not [email protected]. n to an FLSA-related civil proceeding without his ignore the FLSA or other legal principles by consent, and that this statutory right, being both certifying the class. n 6

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UNION (continued from page 1) Anyone who has a Employees must show genuine interest ily recognizes a union will not bar a decertifica- Under Toering, the National Labor Rela- genuine desire to tions Board’s Office of the General Counsel, tion petition, unless notice of recognition has gain employment, which prosecutes all unfair labor practice been given and 45 days have passed without the charges, including those alleging discrimina- despite the fact that filing of a valid petition. The NLRB made these tion on the basis of their union activity, must changes because it found that a card check is not prove: 1) that the applicant submitted an em- they want to be hired as reliable an indicator of employee preferences ployment application personally or through someone authorized to act on his behalf; and so they can organize as an NLRB-conducted election. 2) that the applicant retained a genuine inter- Based on this decision, the NLRB now re- est in becoming employed by the employer. the workforce, quires that the parties to neutrality and card The employer may challenge the applicant’s continue to be check agreements notify the appropriate NLRB “genuine interest” by submitting evidence of: regional office in writing of any voluntary recog- 1) the applicant’s refusal of similar jobs with considered employees the employer in the recent past; 2) belligerent nition that has been granted and provide a dated or offensive comments included on the appli- under the NLRA and copy of the agreement, including a description of cation; 3) the applicant’s disruptive, insulting the bargaining agreement. The employer also or antagonistic behavior during the hiring pro- are protected from must post an official NLRB notice in conspicu- cess; 4) other conduct by the applicant that is ous places for 45 days. inconsistent with a genuine interest in employ- antiunion ment; or 5) the applicant’s submission of a For unions like UNITE HERE, neutrality and discrimination. stale or incomplete resume. The NLRB specifi- card check agreements have become a major cally noted that a union’s mass submission of — James J. Zuehl organizing tool. Dana Corp. may impact union applications does not demonstrate genuine willingness to aggressively pursue these agree- intent to gain employment. n & Kyle B. Johansen, ments. Significantly, one of the primary reasons attorneys unions such as UNITE HERE pursue card check the hiring employer. agreements with employers is to avoid the NLRB The issue of whether an applicant is an em- and its procedural requirements. Following Dana ployee under the NLRA normally arises when an Corp., the NLRB’s increased role in monitoring employer refuses to hire union “salts.” These and policing card check agreements could make individuals are union members normally sent by such agreements less attractive to unions seek- a union to an unorganized workplace first to ing alternatives to the NLRB election process to obtain employment and then later to organize organize employees. Under Dana Corp., the par- employees. Prior to Toering Electric Co., all appli- ties likely will experience some delay in negotia- cants, regardless of their true intentions or ac- tions until the window period for filing decerti- tions during the interview process, were pre- fication petitions has passed, thereby sumed to be employees and protected from undercutting one of the very reasons for the popu- discrimination on the basis of their union activity. larity of neutrality and card check agreements. While Toering narrows the group of appli- There are also questions regarding the NLRB’s cants who are protected from antiunion discrimi- ability to monitor and enforce compliance with nation, it does not leave all salts unprotected. this decision. It is unclear what action the NLRB Anyone who has a genuine desire to gain em- will take if an employer fails to notify the NLRB ployment, despite the fact that they want to be when it has voluntarily recognized a union or hired so they can organize the workforce, continue what penalties, if any, the NLRB could impose if to be considered employees under the NLRA and the employer declines to post the NLRB notice or are protected from antiunion discrimination. the parties desire to post their own notice. These two decisions are likely to have a signifi- In another recent decision, the NLRB modi- cant impact on the hospitality industry because fied the scope of job applicants who qualify as unions are aggressively trying to organize em- employees under the NLRA and therefore are ployees. Questions remain about how the deci- protected from antiunion discrimination. Under sions will be implemented, but generally, they Toering Electric Co., 351 NLRB No. 18 (2007), a job represent good news for hotels and other hospi- applicant is considered to be a statutory em- tality employers. ployee only if he submits an employment appli- James J. Zuehl is a partner at Franczek Sullivan cation and evidences a “genuine interest” in P.C. Kyle B. Johansen is an associate at the same firm. establishing an employment relationship with Jennifer Niemiec also contributed to this article. n 7

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M A R C H 2 0 0 8 Marriott loses battle over accessible golf carts Hotel labor union Court says failing to provide carts threatens to picket for disabled golfers violates ADA What are accessible golf carts? new Trump hotel Golf courses may now be required to make golf Accessible golf carts, also known as single- Officials from a hotel carts accessible for disabled golfers. In a recent rider carts, are used by individuals with mobil- employee labor union are case against Marriott International, a judge stated ity impairments. The carts are operated with considering picketing the that the hotel chain is required to provide single- hand controls and have seats that swivel to get recently opened Trump the golfer into a hitting position. The carts are rider carts for golfers with disabilities. Celano, International Hotel & designed to avoid injury to the course and can Tower in Chicago. Thesing and Hefferon v. Marriott International, No. be driven up onto tees and greens. Local 1 of UNITE C 05-04004 PJH (N.D. Cal. 01/28/08). About 400 golf courses currently provide HERE — a union repre- Lawrence Celano, Richard Thesing and Wil- the carts. Disability Rights Advocates had senting more than liam Hefferon all suffer from disabilities that asked that Marriott provide one or two ac- 400,000 needletrade, in- cessible carts for each course that it oper- make playing golf with a standard golf cart im- dustrial and textile, hotel ates or owns. n and restaurant employ- possible. The three filed a complaint against ees — is threatening to Marriott because the golf course did not provide demonstrate in front of the “accessible” or “single-rider” golf carts to allow sidered “personal devices” and do not constitute hotel to express frustra- them to play golf at Marriott courses in violation auxiliary aids under the law. Marriott also ar- tions over the inability to of the Americans with Disabilities Act. gued that the three men lacked standing because strike a deal with the they did not attempt to visit all 26 of Marriott’s Trump Organization. La- Judge Phyllis J. Hamilton said that Marriott’s bor officials said discus- failure to provide accessible golf carts violated golf courses for a round of golf. sions between the union the Americans with Disabilities Act by “failing to According to Marriott, the only course the and hotel broke down provide accessible golf carts as a reasonable plaintiffs attempted to play was Marriott-owned several months ago after accommodation for plaintiffs’ mobility impair- Camelback in Arizona, which the company the Trump Organization states now does have accessible golf carts avail- wanted to exclude food ments.” Marriott currently operates 26 golf and beverage employ- courses throughout the United States through its able for use. ees from the potential bar- business division Marriott Golf, the world’s larg- Judge Hamilton found that it was unneces- gaining unit. UNITE est golf resort management organization. sary for the plaintiffs to actually visit each of the HERE said it could not Marriott argued that it was entitled to sum- 26 golf courses to have been deterred from play- allow the workers to be ing there. The three men did arrange tee times at left out. mary judgment because it had accessible golf The union is hoping to carts at four of its course locations and contended several different Marriott courses but said they reach an agreement with that the antidiscrimination provisions of the ADA were informed that those courses did not provide hotel officials. UNITE do not require courses to purchase these carts. accessible carts in advance. Hamilton said be- HERE currently holds Marriott said it did not discriminate against the cause the men play golf regularly with the use of contracts for hotel em- accessible carts on non-Marriott owned proper- ployees at Trump loca- golfers because it allowed disabled golfers to tions in New York City and bring their own accessible carts to any of the ties and have shown sufficient interest in play- Atlantic City, N.J. courses. The company argued that carts are con- ing on Marriott’s courses, they had standing to More than 300 em- pursue the case. ployees are expected to work at the hotel, which is Government to provide accessible carts Although the judge declined to enter injunc- tive relief immediately, Disability Rights Advo- only partially opened while crews finish con- While this is the first court ruling addressing cates, the firm representing the plaintiffs, is hope- access to golf courses in the private sector, the struction on the tower’s federal government has recently acknowledged ful that individuals with disabilities will have 92 floors. that it must make its recreational activities, such the carts necessary to enjoy the golf course. “This For more information, as golf, available to disabled veterans return- suit is not only about providing an accommoda- visit the UNITE HERE ing from Iraq and Afghanistan. tion that allows a person to play a game, it is also Web site at www.unite here.org. n This past September, the Department of about providing access to the unique social, eco- Defense announced its plans to acquire two accessible golf carts for each of the 174 courses nomic and professional opportunities that golf operated on U.S. military bases. The Depart- provides,” said Sid Wolinsky, director of litiga- ment of the Interior has similarly opined that the tion at Disability Rights Advocates. “Everybody Americans with Disabilities Act requires that knows that business deals are formed and nur- accessible carts be provided at municipal golf tured on the golf course. People with disabilities courses. The Department of Justice has taken the same position. n should have an equal chance to initiate these types of professional relationships.” n 8

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M A R C H 2 0 0 8 Resort security officer could not show company discriminated against her

Court orders employee to pay company’s legal disciplined for statements she made during the investigation, fees after finding charges were unfounded even though the coworker received no discipline. Employees angered by a termination can find many differ- An arbitrator hired to end the dispute found that Schoenfeld ent ways to allege unfair treatment. However, employers who presented insufficient evidence that she endured a hostile maintain good records and conduct fair and prompt investi- work environment and said that she could not establish a gations after incidents can protect themselves from employees prima facie case for gender discrimination because she did not who may file a claim of discrimination after they’ve been fired. present evidence that she was treated differently than male A security officer for a resort manage- employees. Schoenfeld said the ment company was ordered to pay the arbitrator’s order should be vacated legal costs of her employer after a Dis- Thoroughly record investigations because he disregarded the law appli- In Schoenfeld v. U.S. Resort Manage- trict Court found her claims of gender ment, the company easily showed that its cable to her claims. discrimination and hostile work envi- termination of the plaintiff was due to an The U.S. District Court, Western Dis- ronment to be unfounded. Schoenfeld v. investigation after an incident. Had the com- trict of Missouri found that the arbitra- U.S. Resort Management Inc. and Strategic pany not thoroughly recorded its prompt tor correctly stated that Schoenfeld was Outsourcing Inc., No. 05-4368-CV-C- investigation, the lawsuit may have had a not engaged in a statutorily protected different outcome. n NKL (W.D. Mo. 01/03/08). activity when she was involved in the Amanda Schoenfeld worked for 3½ picture-removal incident, which led to months as a dispatcher in a security office for U.S. Resort her discipline and subsequent termination. Management when she applied for a position as a road officer. With regards to the claim of gender discrimination, the Schoenfeld said her supervisor, Roger Strope, told her women court also found that the arbitrator erred by taking into account do not make good road officers and said he planned to hire a the fact that Schoenfeld lied during the investigation of the male. He also told Schoenfeld that she would have to climb up picture incident in his dismissal of her gender discrimination and down a hill for a physical fitness test. She was given the claim; the court did say that the result would have been the job of road officer but claims Strope told her that she would be same if the arbitrator had applied the proper legal analysis. fired if she messed up. The court denied Schoenfeld’s request to vacate the Schoenfeld said she was subjected to inappropriate com- arbitrator’s decision and confirmed the arbitrator’s judgment ments about her weight and gender, and she said that when for the employer. The court also granted U.S. Resort $3,485.65 her personal photos were taken by a male employee, she was in costs. n SUBSCRIPTION OFFER

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H OSPITALITY LAW

M A R C H 2 0 0 8 Class certification granted to waiter alleging discrimination U.S. Supreme Court Worker says restaurant discriminated to hear arguments based on religion, ethnicity Provide religious accommodations in restaurant case Treating all employees fairly should always The U.S. Supreme More and more lawsuits have been crop- Court is preparing to hear be a management goal. Failure to provide the ping up asserting discrimination based on arguments in a case in- same opportunities to all employees could lead religion. Muslim men from various hospital- volving an employee of a to charges of discrimination. A District Court ity companies have filed lawsuits, claiming Cracker Barrel restaurant that they were harassed because of their approved class certification requested by a Mus- who allegedly was termi- religious beliefs, such as not drinking alco- lim man of South Asian descent who said a Smith nated in retaliation for race hol, or claiming that they were treated un- discrimination complaints & Wollensky restaurant discriminated against fairly. Some have argued that they have he made. The court will him and other employees on the basis of their been treated differently for their inability to determine whether retali- religion and ethnicity. Rahman v. Smith & handle pork products in accordance with ation claims can continue Islamic law. Wollensky Restaurant Group, et al., No. 06 Civ. 6198 to be brought under stat- Muslim women, too, have been filing more (LAK) (JCF) (S.D. N.Y. 01/16/08). ute 1981 under the Civil lawsuits for being asked to violate their reli- Rights Act of 1866 — one Mohammed Muhibur worked as a waiter at gious beliefs by removing head scarves to of the country’s oldest stat- the Park Avenue Café, owned by Smith & comply with company dress codes. utes and the legislation Wollensky. Muhibur claimed that he was sub- Under Title VII of the Civil Rights Act, em- that gave further rights to ployers are required to accommodate reli- jected to hostility in violation of Title VII of the the freed slaves after the gious practices unless they can prove that Civil Rights Act from managers, chefs and super- end of the Civil War. doing so would pose an undue burden to the Legal representatives visory personnel because he was a South Asian company. To ensure your hotel or restaurant is for the restaurant chain Muslim. He also said other Muslim waiters were not violating Title VII, think twice before deny- said that such claims, discriminated against by being denied the op- ing an accommodation. Some common modi- which have been permit- fications could include allowing: portunity to serve VIP parties where tips were ted under the law for • Employees flex time or space for worship typically more generous, and he said when he years, should not be al- during work breaks. lowed because the stat- worked as a captain, he was denied the 6 percent • Modified uniforms, such as allowing ute doesn’t contain bonus routinely given to white and non-Muslim women to wear a long-sleeved T-shirt under specific provisions pro- captains. Rahman said he was terminated in short-sleeved uniforms to cover their arms or hibiting retaliation. How- allowing head coverings in accordance with retaliation for objecting to a racist comment made ever, civil rights experts their religion. by managerial employees and claimed his em- argue that if the court fails • Floating holidays or optional holidays. to permit retaliation suits ployer falsely accused him of stealing by misus- • An employee to refrain from handling under the statute, many ing a gift certificate. pork products or other items that may go against victims of racial discrimi- Rahman filed a charge of discrimination with their religion. nation would be left with- • An opportunity for employees who miss the Equal Employment Opportunity Commis- out any recourse. work due to a religious observance to make up sion. After an investigation, the EEOC found that Several groups, in- the lost time. n there was reasonable cause to believe Rahman cluding the U.S. Cham- was subjected to harassment and that he may ber of Commerce and the have been terminated based on his race, national not investigate any of the defendant’s restau- National Federation of Independent Businesses origin or religion, and said other similarly situ- rants other than Park Avenue Café, that claims Legal Foundation, sup- ated employees may have suffered from the same concerning those restaurants have not been ex- port Cracker Barrel’s ar- type of harassment. The EEOC did say that there hausted and that class allegations must be lim- gument. The groups claim was no reason to believe Rahman had been ha- ited to the Park Avenue Café. The court, however, that by allowing retalia- rassed based on his sex. awarded class certification for all employees at tion claims to move for- ward under statute 1981, Rahman moved to represent a class of all past, the Park Avenue location. it will undermine Title VII present and future employees of defendants who The court also found that Rahman’s class of the Civil Rights Act of are Muslim, nonwhites and/or of South Asian certification should not be merely confined to 1964. Section 1981, un- descent working at any of the 16 Smith & Muslims of South Asian descent, but said be- like Title VII, does not have Wollensky restaurants. cause he specified that Caucasian waiters re- caps for damages. Cracker Barrel has Smith & Wollensky argued that class certifica- ceived preferential treatment that the class should denied any wrongdoing tion should not be awarded for numerous rea- extend to other ethnic minorities and not be and said it is seeking clari- sons, including that remedies had not been ex- restricted to his particular ethnic group. The fication of the laws. n hausted. The U.S. District Court, Southern District court did however deny Rahman’s request for of New York found that because the EEOC did costs and fees. n 10

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M A R C H 2 0 0 8 Restaurant ordered to honor contract with janitor The court rejected Hurricane Rita did not dissolve Copeland’s 3-year contract for cleaning services HLaw Glossary argument, stating Entering into long-term contracts for services can be dangerous, especially if they fail to con- that although tain any clauses to release services if your hospi- What is a fortuitous event? tality business closes. With industry experts es- In plain English, a fortuitous event is an Hurricane Rita was event that happens by chance; a risk against timating that 90 percent of restaurants fail in the which an individual or entity can be insured. unquestionably a first year, it’s a good idea to be cautious when Legally it’s an event that neither party could fortuitous event, it entering into business arrangements for services foresee or prevent. Fortuitous events are gen- to ensure that your restaurant is protected. erally characterized as accidents or incidents did not have any Guillard v. Copeland’s of New Orleans, Inc., No. 07- caused by weather, such as damages or losses from storms, lightning, floods, earthquakes, bearing on the 0867 (App. La. 12/5/07). etc. They also may be characterized by sudden Copeland’s of New Orleans appealed a trial deaths or illnesses. Some consider there to be contract because the court’s judgment awarding Alex Guillard $46,500 a difference between a fortuitous event and an restaurant had been in damages for Copeland’s breach of a three-year inevitable accident, which is an accident that is employment contract with him. At the end of absolutely uncontrollable and not caused by human negligence. n put in default more 2004, Guillard entered into a three-year employ- than one month ment contract to provide janitorial services to Copeland’s Lake Charles, La., restaurant for In August, Guillard filed a lawsuit for dam- before the hurricane $1,500 per month. In May 2005, Copeland’s closed ages against Copeland’s for breach of contract. struck Lake Charles. the restaurant because it was not meeting its The following month, Hurricane Rita struck the performance expectations and said it no longer Lake Charles area and caused $400,000 in dam- needed Guillard’s services. ages to the Copeland’s-owned building that had housed the restaurant. Contractor not entitled to fees, penalties The trial court found that Copeland’s had breached its contract with Guillard and awarded The trial court in Guillard v. Copeland’s also him $46,500, or what would have been due to considered whether Alex Guillard was an in- dependent contractor or an employee of the Guillard had the contract remained in effect. The restaurant. Guillard argued that as an em- trial court declined to award attorney’s fees and ployee, he should be entitled to fees and pen- penalties to Guillard, however. Copeland’s filed alties. To determine his work status, the ap- an appeal, and Guillard contested the trial court’s peals court considered whether: decision not to award him fees and penalties. 1. There was a contract between the parties. 2. The work being done was of an indepen- The Court of Appeal of Louisiana affirmed the dent nature such that the contractor could trial court’s decision. In its appeal, Copeland’s employ nonexclusive means to accomplish it. said the trial court erred in not finding that Hur- 3. The contract called for specific piece- ricane Rita was a fortuitous event, making the work as a unit to be done according to the restaurant’s performance impossible and allow- independent contractor’s own methods, with- out being subject to the control and direction of ing it to dissolve the contract pursuant to Louisi- the principal, except as to the result of the ana law. Copeland’s also argued that Guillard’s services to be rendered. recovery should have been lower because he 4. There was a specific price for the overall failed to mitigate his damages as required by undertaking agreed upon. Louisiana code. 5. The duration of the work was for a spe- cific time and not subject to termination or The court rejected Copeland’s argument, stat- discontinuance at the will of either side without ing that although Hurricane Rita was unques- a corresponding liability for its breach. tionably a fortuitous event, it did not have any The court found that Guillard was an inde- bearing on the contract because the restaurant pendent contractor because the restaurant did had been put in default more than one month not control the method and means by which he performed his cleaning services. The court before the hurricane struck Lake Charles. said Guillard’s status as a contractor precluded The court also affirmed the trial court’s rejec- him from recovering fees and penalties. n tion of Guillard’s request for penalties and attorney’s fees. n 11

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M A R C H 2 0 0 8 Employee granted workers’ comp after assault by guest Hotel association Appeals board finds that injuries commends plan suffered should be compensable Guidelines address mental health to stimulate economy It can be difficult for a hotel to protect its Many employers have sharply criticized the The American Hotel & employees from guests. But failure to do so could health care community for huge inconsisten- Lodging Association is lead to injuries, illnesses, and expensive work- cies in treating mental health problems of work- praising federal lawmak- ers’ compensation claims. A workers’ compen- ers and failing to grasp the importance of early ers for developing a plan sation appeals board confirmed an award of return-to-work. This has resulted, in the eyes of to stimulate the economy. many, in prolonged disability, lower productiv- The Bush administration benefits to a hotel worker who was harassed and ity, and higher insurance costs. However, ex- and the U.S. House of accosted more than once by a guest. M&B Inn perts hope that this will soon be changing. Representatives reached Partners Inc. v Workers’ Compensation Appeal Board, Last summer, the American Psychiatric As- an agreement in princi- No. 121 C.D. 2007 (Pa. 01/18/08). sociation presented its new guide for manag- pal on the legislative pack- Barbara Petriga worked as an administrative ing return-to-work for employees with mental- age, totaling some $150 health problems. The APA guide is a packet of billion in taxpayer rebates assistant at the M&B Inn-owned Host Inn. While clinical tools to expedite early and safe return- and corporate incentives. on the job, a customer physically and verbally to-work for employees with depression, anxi- The measure is designed accosted her, placing his hands on her buttocks ety, phobias and other conditions. The authors to bring immediate, short- and abdomen. Petriga complained to her man- are now facing the formidable task of placing term relief to the economy. ager and was told that the guest would be re- the guide into use. Officials said that will involve “The provisions we correcting flaws in how the health care commu- have seen in the early moved from the premises. However, on the next nity as a whole often treats mental-health prob- summary of this bill will morning, the same guest grabbed Petriga again; lems as incompatible with work. provide a much-needed police were summoned and criminal charges Workers’ compensation experts said the boost to both the lodging were filed against the guest. guide arrived not a moment too soon, given industry and to millions of Shortly thereafter, Petriga went to her doctor widespread unrest among employers and in- American families and surers about the toll of mental-health problems businesses, and we look for a sedative to help her sleep and was referred within the workforce. forward to working with to a psychologist for treatment. She asked about “Psychiatric disorders are recognized as members of Congress to workers’ compensation benefits and was sent to the primary cause of occupational disability in ensure the stimulus pack- her employer’s physicians, who removed her at least 10 percent of private disability insur- age provides as much from work but told her to receive treatment from ance claims and about 30 percent of Social help as possible for those Security disability claims,” the guide noted. “We who need it most,” said her psychologist. Petriga began taking antianxi- estimate that in the private disability arena, an Marlene Colucci, AH&LA ety and antidepressant medications, suffered additional 20 percent to 40 percent of all claims executive vice president from insomnia and fatigue, and could not return involve comorbid or secondary psychiatric prob- for public policy. to work after the assault. She was diagnosed with lems that contribute directly to disability or The legislation in- chronic post-traumatic stress disorder, which impede rehabilitation and return-to-work.” cludes a 50 percent bo- For more information on the guidelines, visit nus depreciation on brought on panic attacks that prevented her from the APA Web site at http://psych.org. n equipment purchases by working in any capacity. businesses, which was A workers’ comp judge ruled that Petriga one of five proposals re- was entitled to workers’ compensation ben- dition, arising in the course of his employment quested by the AH&LA in efits as a result of the incidents. The Host Inn and related thereto. ... The term ‘injury arising in a letter recently sent to congressional leader- argued that Petriga’s claim for benefits should the course of his employment,’ as used in this ship. Additionally, law- be dismissed under the “personal animus” article, shall not include an injury caused by an makers were asked to in- exception of the Workers’ Compensation Act, act of a third person intended to injure the em- clude immediate relief for because her injuries were the result of a guest’s ployee because of reasons personal to him, and the H-2B temporary sea- alleged harassment. not directed against him as an employee or be- sonal worker program, an expanded Work Op- On appeal, the Host Inn said benefits should cause of his employment ... But shall include all portunity Tax Credit, trav- have been denied to Petriga because her injuries other injuries sustained while the employee is el promotion funding, were the result of a guest’s alleged harassment actually engaged in the furtherance of the busi- and an extension of the for reasons personal to him. The Workers’ Com- ness or affairs of the employer.” carryforward or carry- pensation Appeal Board disagreed, looking to The appeals board noted that the guest testi- back periods for Net Op- erating Losses. the statute in the act that states, “The terms fied that he had not intended to harass or hurt For more information, ‘injury’ and ‘personal injury,’ as used in this act, Petriga and determined that the Host Inn could visit the AH&LA Web site shall be construed to mean an injury to an em- not use this argument, affirming the award of at www.ahla.com. n ployee, regardless of his previous physical con- benefits to Petriga. n 12

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M A R C H 2 0 0 8 Editorial Advisors Avoid costly safety mistakes at your hotel Diana S. Barber, Esq. Attorney and Faculty Safety should always be a priority at your hotel. But even the most diligent managers can make Member, Cecil B. Day mistakes, leading to security gaps that could be costly. Diana S. Barber, a professor at the Cecil B. Day School of Hospitality Georgia State University Hospitality School at Georgia State University, offers this list of common safety mistakes made by Atlanta, Ga. hotel managers and tips to avoid them: • Never cut back on security personnel. “In these times of cost containment and budget controls, Chad Callaghan security is the one area of your budget that should never be cut,” Barber said. “The financial impact Vice-President of of reducing or eliminating your security staff would be tremendous should a guest or employee be Loss Prevention, Marriott Washington, D.C. injured or damage to property occur.” • Post evacuation routes in your meeting room space. “Meeting rooms serve as gathering places Lance R. Foster, CPP, for large groups of people who will most likely CFE panic in the event of an emergency such as a Perform background checks Security Associates, Inc. hurricane, earthquake, and bomb threat and so Tampa, Fla. on,” Barber said. “Have evacuation routes posted Diana S. Barber, a hospitality law professor at Georgia State University, urges hotel ad- Robert W. Foster, Jr. in meeting rooms for group attendees to see, and ministrators to conduct background checks on Nelson, Mullins, LLP ask your sales and catering personnel to have all managers, front desk personnel and secu- Columbia, S.C. detailed discussions with the meeting planners rity officers to eliminate or minimize any un- about evacuation procedures.” known and undesirable discoveries once Joseph Holland • Increase lighting. “Look for physical areas employed. “An Internet search can assist in Chair, Department of accomplishing this task very quickly,” she said. Hospitality and Tourism on or around the property that do not have “Check driving records on employees hired to University of Wisconsin- adequate lighting or are not secure, and address transfer guests to and from the airport or sur- Stout, Menomonie, Wis. these issues immediately,” she said. “Check your rounding areas. Select the best employees parking lots for areas where lighting needs im- now and avoid future trouble.” n Jerril Krowen, Esq. Attorney, Topsfield, Mass. provement.” Barber also recommends that hotel managers ask local law enforcement agencies to conduct a security audit on the premises. Carolyn D. Richmond, • Continuously train employees. “When it rains or snows and a guest slips and falls on your Esq. property, do your employees know the proper steps to take to protect the injured guest, not to make Co-chair of Hospitality casual comments admitting liability, and how to handle the situation?” Barber asked. “Make it your Practice Group and Partner, Fox Rothschild, LLP objective to ensure that your employees receive adequate training on procedures for handling guest New York injuries. Keep detailed records of the procedures and training, which can be used in your efforts to convince a litigious opposing party, and a judge, of your due diligence in safety training.” Paul D. Seyferth • Comply with Occupational Safety and Health Administration standards. “Make sure all Seyferth Knittig LLC, OSHA requirements and standards are met,” she said. “Visually inspect to see that all necessary Kansas City, Mo. notices and posters are current and displayed appropriately, and not stuck behind other notices on David S. Sherwyn, Esq. the bulletin board.” Assistant Professor of Law • Back up data off-site. “Keep a copy of all property operations data stored off-site in a safe and Cornell University School secure location,” Barber said. “It is imperative to have access to guest records at all times — especially of Hotel Administration in the event of an emergency.” Ithaca, N.Y. • Install phones in fitness centers. “All exercise or fitness rooms need to have a phone available Charles F. Walters, Esq. to all guests that will dial immediately to the front desk,” she said. “A security camera should also be Seyfarth Shaw LLP installed so that injuries and problems that occur within the fitness facility can be immediately detected Washington, D.C. and addressed.” Barber also said that if security cameras are in use, hotels should have written procedures for their use that include information about whether trained professionals are viewing the Robert Zarco, Esq. Zarco Einhorn Salkowski scenes, how often the tapes should be reused, and whether they are in good working order. & Brito • Check detection devices regularly. Barber said hotel staff should ensure that sprinkler systems Miami, Fla. and smoke detectors are working in all guest rooms and public spaces, and should have an emergency lighting system in place along with an emergency generator. She also recommends hotels James J. Zuehl, Esq. check and record inspections each month and have a backup plan in place in case these devices fail. Franczek Sullivan PC Chicago, Ill. • Check on emergency equipment periodically. “Make sure you conduct monthly inspections on external defibrillators and oxygen tanks, and have at least one CPR-trained employee on staff at all times.” For more information, contact Diana S. Barber at [email protected]. n