Penalties Rise for ADA Noncompliance

By Andrea R. Calem

Noncompliance with the Americans with Disabilities Act just became costlier. Pursuant to an inflation-adjustment formula, on March 28, 2014 the Department of Justice (“DOJ”) issued a final rule raising the civil monetary penalties assessed or enforced by the Civil Rights Division, including those assessed under Title III of the ADA (“Title III”).

Title III prohibits public accommodations from discriminating against disabled individuals with respect to access to goods, services, programs and facilities, and (with limited exceptions) requires public accommodations to make reasonable accommodations so that disabled individuals may equally access these goods and opportunities. Accommodations may include modification of physical space in order to remove physical barriers, the provision of auxiliary aids for communication (such as sign language interpreters, closed captioning, written materials in Braille), and a wide variety of other, context-specific adjustments to the way business is conducted or services are offered.

With the upward adjustment, the maximum civil penalty for a first violation of Title III rises from $55,000 to $75,000, and the maximum civil penalty for a second violation rises from $110,000 to $150,000. The new maximums apply to violations that occur on or after April 28, 2014. The last time these penalties were adjusted for inflation was in 1999.

These penalties can be consequential for small businesses or those with thin profit margins, and can accrue to significant levels for businesses of all sizes if the DOJ finds evidence of repeated violations of Title III. The DOJ’s current ADA enforcement environment is an aggressive one, consistent with the aggressive positions recently taken by many other federal agencies which protect workers’ and civil rights, such as the National Labor Relations Board, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance and Programs. The retail and hospitality industries continue to provide inviting targets for the DOJ, particularly high-profile businesses such as top restaurants with celebrity chefs.

The increased penalties are one more reminder that the costs associated with ADA compliance should not be postponed until enforcement – in the form of a civil lawsuit or the DOJ – is knocking at your (hopefully accessible) door.

Are your Golf Courses Compliant with the ADA?

 By: Jordan Schwartz

As the calendar moves into spring, it is once again time for recreational golfers to start dusting off their clubs and begin to prepare for the golfing season. Unlike recreational golfers, however, owners and operators of golf courses have hopefully spent the off-season ensuring that their golf courses are compliant with the accessibility standards of the Americans with Disabilities Act (“ADA”).

Many resort owners and operators mistakenly believe that golf courses are exempt from the requirements of the ADA. While this may have been true in the past, new ADA regulations were promulgated in March 2012 mandating that golf courses comply with the ADA. Pursuant to these regulations, golf courses must have accessible routes that serve teeing grounds, practice teeing grounds, putting greens, practice putting greens, teeing stations at driving ranges, course weather shelters, golf cart rental areas, bag drop areas, and course toilet rooms. The new ADA regulations also require at least one 48-inch pathway providing an accessible entrance to at least one tee box on each hole. Additionally, each putting green must be designed and constructed so that a golf cart can enter and exit.

A common question I receive from golf course owners and operators is whether these new ADA provisions prevent a golf course from instituting a “cart path only” policy, which prevents golf carts from driving on fairways. Like many aspects of the ADA, there is not one simple answer to this question. As an initial matter, it certainly is permissible for a golf course to institute rules to alleviate dangerous situations. Therefore, a decision to designate a particular day as a “cart path only” day due to slippery and muddy conditions from heavy rain the prior night likely would not run afoul of the ADA, as there clearly are legitimate safety reasons for such a rule. It is less clear, however, whether a course’s decision to impose a permanent “cart-path only” rule solely so that it could better preserve and maintain its grounds and fairways would violate the ADA. 

The ADA provides that accommodations are not required if they are not “readily achievable,” meaning that they are not accomplishable without much difficulty or expense. If a plaintiff were to claim that a permanent “cart path only” rule violated the ADA, a golf course could assert that allowing golf cars on the course was not “readily achievable.” But, the “readily achievable” defense can be difficult to prove and will likely delve into a golf course’s particular facts and circumstances.  While it may be relatively easy for a course to demonstrate that its fairways would be virtually destroyed by having many carts drive on them, it may not be as easy for a course to show that its fairways would be similarly destroyed by permitting carts near the tee boxes and greens only for disabled golfers, which are likely a very small percentage of the total number of golfers. If a course can show that even one or two carts a day would destroy its fairways, then the “readily achievable” defense would likely hold. However, if, for example, up to 20 cars a day would not destroy the fairways, the “readily achievable” defense may not hold up in court. Ultimately, it is a balancing question between the actual damage to the fairways and the risks the owners and operators of a golf course is willing to take with regards to a potential violation of the ADA.

At a minimum, owners, operators, and managers of facilities with golf courses must be aware of the new ADA regulations and their potential far reaching impact. Moreover, golf course owners and operators should be proactive in remedying any potential barriers to access. Taking these simply steps would help reduce legal exposure to potential ADA claims, which would be particularly welcome news with the heart of the golf season rapidly approaching. 

 

 

 

 

 

 

Addressing ADA Issues In Hotel Management Agreements

By Kara M. Maciel

When acquiring or managing a restaurant or hotel, many owners and operators overlook the significant and costly implications that compliance under the federal Americans with Disabilities Act could have on the hotel’s bottom line in the future. Because of the proliferation in drive-by lawsuits from professional plaintiffs and U.S. Department of Justice investigations across the country, any hospitality company considering a new ownership or management agreement of a lodging or restaurant facility should closely evaluate and consider the state of ADA compliance within the facility to determine how best to protect their asset.

The 2010 ADA Standards

Generally, Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”[1] Thus, restaurants and hotels are legally required to make goods and services available to and usable by individuals with disabilities on an equal basis with members of the general public.

In so doing, they must comply with specific requirements set out in the U.S. Department of Justice regulations, which include detailed architectural requirements known as the ADA Standards for Accessible Design (ADA standards).[2]

In 2010, the DOJ revised the ADA standards, which contain new architectural requirements and involve the modification of business policies and procedures when necessary to serve customers with disabilities. The revised regulations contain the 2010 Standards for Accessible Design, which revise the 1991 standards, and require that places of public accommodation remove physical barriers for individuals with disabilities to the extent that it is readily achievable to do so.

Notably, pursuant to the ADA’s “safe harbor” exemption, elements of existing facilities that comply with the 1991 standards are not required to comply with the 2010 standards until such facilities are subject to future alterations. Any renovations and alterations after March 15, 2012, must be done in accordance with the 2010 standards, to the maximum extent feasible.

1. Readily Achievable Standard

The ADA does not require existing buildings built prior to Jan. 26, 1992, to meet its stringent standards for newly constructed/altered facilities. Rather, such buildings are required to take certain limited steps to improve access to individuals with disabilities, including the obligation to remove architectural barriers when it is readily achievable to do so; in other words, when barrier removal is “easily accomplishable and able to be carried out without much difficulty or expense.”

The decision of what is readily achievable is made considering the size, type and overall finances of the hotel and the nature and cost of the access improvements needed. Barrier removal that is presently difficult may be readily achievable in the future as finances change.

Many building features that are common in older facilities such as narrow doors, a step or a round door knob at an entrance door, or a high guest check-in counter are barriers to access by people with disabilities. Removing barriers by either ramping a curb, widening an entrance door, installing visual alarms, or designating a lower counter for guest check-in is often essential to ensure equal opportunity for people with disabilities.

Because removing these and other common barriers can be simple and inexpensive in some cases and difficult and costly in others, the regulations for the ADA provide a flexible approach to compliance. This practical approach requires that barriers be removed in existing facilities only when it is readily achievable to do so.

2. Maximum Extent Feasible Standard

On the other hand, any “alterations” made to a facility since 1992 must be made in full compliance with the ADA standards, to the maximum extent feasible. The ADA does not expressly define the term “alteration;” however, the DOJ defines “alteration” to mean any change to an existing building that affects or could affect the usability of a facility or any part thereof.

Alteration includes remodeling, renovation, rearrangements in structural parts, and changes or rearrangements of walls and full-height partitions or making other changes that affect (or could affect) the usability of the facility. The ADA does not consider normal maintenance, re-roofing, painting, wallpapering, or changes to electrical and mechanical systems to be alterations unless they affect usability of the building.

The phrase “to the maximum extent feasible,” applies only to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with the ADA standards through a planned alteration. In all other cases, the alterations that can be made accessible must be made accessible.

Furthermore, when a facility undertakes an alteration that affects or could affect the usability of or access to a “primary function area,” an accessible path of travel to the altered area must be made accessible to and usable by individuals with disabilities to the extent that the added accessibility costs are not disproportionate to the overall cost of the original alteration. Pursuant to the ADA, the added accessibility costs will be considered disproportionate if they exceed 20 percent of the original alteration.

Key Revisions to Architectural Requirements

In conducting an audit or inspection of a property, some of the key architectural requirements under the ADA for newly designed and constructed places of public accommodations to be accessible to and usable by individuals with disabilities, involve the following:

1. Accessible Entrances

Understanding how guests arrive at and move through hotels and restaurants is the best way to identify any existing barriers and set priorities for their removal. The 2010 standards provide the following priorities for barrier removal:

  • Providing access from public sidewalks, parking areas and public transportation;
  • Providing access to services (e.g., restaurants and spas);
  • Providing access to public restrooms; and
  • Removing barriers to other amenities offered to guests (e.g., drinking fountains, elevators and ATMs).


Consequently, efforts should be made by owners and operators to ensure that:

(1) there is an obvious accessible path from the street sidewalk to the entry;

(2) a portion of the check-in counter in the main lobby of the hotel is appropriate for use by an individual who uses a wheelchair;

(3) restaurants and bars have accessible pathways and accessible seating;

(4) conference/meeting room entrances are wide enough for wheelchair passage; and

(5) the main lobby has at least one fully accessible restroom.

In particular, if the main entrance cannot be made accessible, alternate accessible entrances can be used. If a restaurant or hotel has several entrances and only one is accessible, a sign should be posted at the inaccessible entrances directing individuals to the accessible entrance. This entrance must be open whenever other public entrances are open. The 2010 standards require that 60 percent of all public entrances be accessible.

2. Swimming Pools, Wading Pools, Spas, Saunas and Steam Rooms

Accessible means of entry/exit are required for all swimming pools and hot tubs. In particular, the 2010 standards require at least two accessible means for entry for larger pools (300 or more liner feet) and at least one accessible entry for smaller pools. At least one entry must be a sloped entry or pool lift; the other could be a sloped entry, pool lift, a transfer wall or a transfer system.

Wading pools must provide a sloped entry into the deepest part of each wading pool. If a property has one spa, it must be accessible. Thus, it must provide a pool lift, transfer wall or transfer system.

If there is more than one spa, 5 percent of the total must be accessible. Further, at a resort property, for example, if there is more than one cluster of whirlpools, 5 percent of each cluster must be accessible.

The ADA 2010 standards for pool lifts require lifts to be fixed and to meet additional requirements, including location, size of the seat and lifting capacity. Thus, to the extent it is “readily achievable,” a pool owner and operator must provide a fixed lift that meets all of the 2010 standards’ requirements.[3] Notably, one such requirement is that the pool lift remains in place and be operational during all times that the pool is open to guests.

Saunas and steam rooms also must be accessible, having appropriate turning space (a minimum of 60 inches in diameter), doors that do not swing into the clear floor space, and, where provided, an accessible bench. A readily removable bench is permitted to obstruct the turning space and the clear floor space.

3. Parking

Pursuant to the 2010 standards, hotels must provide a sufficient number of parking spaces for cars and vans if it is readily achievable to do so, depending on the total number of parking spaces available. One of every six spaces must be van accessible. An accessible parking space must have an access aisle, which allows a person using a wheelchair or other mobility device to get in and out of the vehicle.

4. Exercise Rooms

The 2010 standards dictate that at least one of each type of exercise equipment must provide 30 by 48 inches of clear floor space positioned for transfer by someone using a wheelchair and be on a 36-inch wide accessible route. For machines on which individuals have to stand up, the clear floor space can be in the accessible pathway route.

Thus, once satisfied that a hotel’s fitness center is in compliance with the ADA, trainers and other fitness room staff must be instructed not to move exercise equipment, as such rearrangements could impede an individual’s access and result in noncompliance with the ADA.

Considerations between Managers and Owners for ADA Compliance

Since hospitality owners and operators are jointly and severally liable for noncompliance with the ADA, they should proactively and cooperatively work together to ensure that their restaurants and hotels are legally compliant to minimize vulnerability to “drive-by” lawsuits and DOJ investigations.

Navigating the ADA requires careful consideration and advanced planning; therefore, prudent owners and operators must work together to chart an effective compliant course when drafting management agreements to ensure legal compliance.

Particularly, even before signing a management agreement, a manager should conduct due diligence of the property early in the process that includes:

(1) an on-site survey of the facilities;

(2) review of any operational policies and procedures, construction history, prior ADA surveyor reviews, and history status of the properties; and

(3) determining if the property has been or is likely to be in the crosshairs of “drive-by” plaintiffs and government enforcement agencies.

Prudent managers should also ensure indemnification provisions are included in the agreements for any ADA noncompliance issues. Likewise, the agreement must clearly set forth each party’s defense and remediation responsibilities with respect to the ADA.

Throughout the ownership and management of a property, operators should modify their policies, practices and procedures to ensure that disabled guests have equal opportunities to enjoy the facility’s accommodations and services.

At the direction of legal counsel, and thus under the protection of the attorney-client privilege, owners and operators should conduct regular inspections of their properties. Special care should be made to areas that the general public easily sees, utilizes and accesses, such as parking lot, entrance, lobby, service counters, dining and bar areas, and public bathrooms.

Finally, a critical and often overlooked component of ensuring success is comprehensive and ongoing staff training about the ADA’s requirements. Although established good policies are a necessary first step, problems can still arise if front-line staff members are not aware of them.

Thus, managers should ensure that their staffs understand the requirements on communicating with and assisting customers and are trained in handling accessibility-related requests. All too often, lawsuits are commenced because of an employee’s lack of knowledge and/or lack of courtesy in handling a request for an accommodation.

In short, because failure to comply with the ADA can cost significant monetary sums, hospitality owners and operators should not overlook and/or discount their statutory obligations at any point in their business relationship.
 

________________________________________________________________________________

[1] 42 U.S.C. § 12182(a). 
 
[2] See 28 C.F.R. Part 36, Appendix “A.” 
 
[3] There is, however, a “safe harbor” for hotels that purchased a portable, nonfixed lift prior to March 15, 2012. Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the DOJ has confirmed that as a matter of prosecutorial discretion, it will not enforce the fixed elements of the 2010 standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012, so long as those lifts otherwise comply with the requirements of the 2010 standards.

 

Kara M. Maciel speaking at the 2014 Hospitality Law Conference in Houston, Texas

Kara M. Maciel, Member of the Firm and co-editor of the Hospitality Labor and Employment Law blog will participate in a panel discussion at the Hospitality Law Conference on February 10, 2014 in Houston, Texas.   In this featured panel  -  "Deciphering Government Regulations (ACA, ADA, WARN Act, Sanctioned Person/Entity Challenges) and Their Impact on Management Agreements", Kara will speak on the following areas affecting hospitality employers:

  • Provide an overview of the federal WARN Act, such as the threshold requirements for coverage under WARN; when and to whom hotels must provide WARN notice; termination events that trigger hotels’ WARN notice requirements; and the statutory penalties for non-compliance.
  • Discuss hotel owners’ and managers’ WARN responsibilities during a sale of a hotel.
  • Offer guidance on how hotel managers can build protection against WARN liabilities in their management agreements.
  • Address hotel owners’ and managers’ joint obligations under Title III of the Americans With Disabilities Act and its corresponding federal regulations.
  • Discuss key revisions to hotels’ policies and procedures regarding service animals, power driven mobility devices, reserving handicap accessible rooms, and communicating with vision, hearing, and speech impaired guests.
  • Discuss key architectural revisions for entrances, swimming pools, spas, parking lots, and ATM’s.
  • Recommend best practices to hotel owners and managers on ensuring ADA-compliant hotels and minimizing vulnerability to “drive by” lawsuits and DOJ investigations.

For more information on the conference, visit hospitalitylawconference.com.

ADA Compliance: Implications for Owners and Managers When Acquiring or Developing New Lodging Facilities

On September 18, 2013, our hospitality practice attorneys, Kara Maciel and Mark Trapp, have the pleasure of speaking at the Lodging Conference in Scottsdale, Arizona on key financial and legal issues under the Americans with Disabilities Act impacting hotel owners and managers when acquiring, selling, developing or managing properties. 

Under the 2010 ADA Standards, which became effective in March of 2012, hotels must take steps to remove access barriers for individuals with disabilities. The new federal standards encompass some key changes for hotel owners, operators and developers.   Our Round Table discussion will focus on hot-button issues facing the hotel industry, including:

·         Why Owners and Managers Should Care about ADA Compliance when Purchasing / Selling / Developing / Managing a Property

·         Key Financial Issues In Acquiring / Selling Properties

·         Key Financial Issues in Developing New Construction / Renovating Older Properties

·         Key Financial and Operational Issues in Management Agreements 

·         Best Practices for Compliance under the ADA for Lodging Facilities

Attendees will leave the workshop better equipped to address the critical operational issues affecting their deals and profit margins, including:

·         How to conduct Due Diligence to minimize financial exposure and legal risks

·         How to negotiate and maximize your financial investment in a Purchase Sale Agreement

·         What issues are important in a Management Agreement

·         How to draft and implement employment and related policies to minimize the risk of ADA lawsuits

For more information about this important topic impacting the lodging industry, contact Kara or Mark. 

Revisit Food Allergy Accommodations for Guests and Employees

By Kara M. Maciel and Jordan B. Schwartz

A broadly worded settlement agreement between the U.S. Department of Justice and Lesley University extends the Americans with Disabilities Act’s protections to individuals with severe allergies. This new, expansive interpretation of the term “disability” could increase potential legal exposure to failure to accommodate claims under the ADA, making it more important than ever to ensure that your restaurants and bars are equipped to provide reasonable accommodations to individuals with severe food allergies.

Tips to Accommodate Food Allergies

There are many practical strategies that hospitality operators can implement to reduce Americans with Disabilities Act exposure regarding allergens:

  • Display signs concerning food allergies and identify foods that contain specific allergens.
  • Evaluate the feasibility of providing gluten- and allergen-free food options.
  • Provide a dedicated alternative space to store and prepare foods to avoid cross-contamination, or if space does not allow for that, use different utensils, cutting boards and other preparation materials.
  • Use vendors who offer food without allergens.
  • Alert customers with food allergies via marketing materials and your website to notify you in advance so that you can make every effort to accommodate their particular allergies and other dietary needs.
  • Create internal policy and procedures for manufacturer recalls and customer complaints.
  • Educate your staff about common food allergies and provide ongoing training to your staff so they can appropriately respond to questions about food ingredients and requests for alternatives.

Title III of the ADA requires hospitality operators to maintain facilities that are accessible to individuals with disabilities, and make their goods and services available to and usable by individuals with disabilities on an equal basis with members of the general public. This includes making reasonable modifications to policies, practices, and procedures when necessary to serve customers/guests with disabilities.

Lesley University had required all students living on campus to participate in, and pay for, its meal service plan, even if some students with severe allergies could not eat the food available through the plan without risk of illness. Several students complained that the school’s food services were inadequate for their needs, and alleged that the university had violated the ADA by neither addressing the needs of students with food allergies nor ensuring them an equivalent dining experience.

The DOJ commenced an investigation, and charged that the university violated the ADA by failing to accommodate the special food needs of these students, reasoning that they could not fully and equally enjoy the university’s dining services. On Dec. 21, 2012, the DOJ announced its settlement with Lesley University, which required the university to provide allergen-free options in its food lines, and develop individualized meal plans for students with food allergies.

While the DOJ settlement agreement refers only to universities and students, it has now, for the first time, identified all severe food allergies as disabilities, which could trigger reasonable accommodation requirements of the ADA. This settlement makes it possible that when this issue is litigated, the courts will broadly apply the terms of this agreement to all employers that serve food in the workplace. As a result, the settlement is likely to have wide-ranging implications for all businesses that serve food, either as a primary or secondary practice. Thus, hospitality operators should evaluate their practices for offering and providing accommodations for food allergies to minimize any potential exposure to disability discrimination charges under the ADA.

While there may not be a “one size fits all” solution to this issue, hospitality companies can take prudent steps to ensure that guests with allergies have the ability to fully and equally enjoy the dining services and the social benefits that accompany such services (see sidebar).

Depending on the size and resources of your company, many strategies to provide alternatives may not be practical or feasible. However, to ensure compliance with the ADA and avoid a civil lawsuit or DOJ investigation, hospitality operators that serve food to the public must be proactive in at least considering, if not implementing, some of the allergen protective measures.

Reprinted with permission from Hospitality Law. Copyright 2013 by LRP Publications. Palm Beach Gardens, FL 33418. All rights reserved. For details on this or other related products, visit www.shoplrp.com/hospitality.html or call toll free 1-800-341-7874.

ADA Accessibility Notes from the Resort Hotel Association Conference

By:  Kara Maciel

Last week, I had the honor of attending the Resort Hotel Association’s (“RHA”) Annual Conference at The Edgewater Hotel in Seattle.  RHA is comprised of 130 independently-owned resorts, hotels, city clubs and spas in the United States and specializes in insurance programs that address the risks unique to the lodging industry.  For the second year in a row, RHA invited me and my colleague, Jordan Schwartz, to speak on the Americans with Disabilities Act (“ADA”) and public accommodations issues that hotel and lodging operators face. The room was packed and due to constant questions from the audience we were unable to review all our material in the 75 minute speech. Needless to say, ADA compliance remains a hot topic within the hospitality industry! 

Here are the main points from our speech:

1. ADA Lawsuits continue to the flood the federal courts since the 2010 ADA Standards took effect in March 2012. Civil penalties increased to $55,000 per violation, and many lawsuits are now being filed after a potential guest merely calls the property to ask about accessibility standards. Hoteliers continue to struggle with responding to complaints from national advocacy groups and professional plaintiffs across the country.

2. Pool Lifts - Fixed lifts should be in place at each pool, spa, Jacuzzi on property since January 1, 2013 unless you can demonstrate it is not readily achievable. Lifts must remain in operation at all times the pool is open which means batteries must be charged, covers must be removed, and lifts can't be locked away in storage pending a guest request. Hoteliers remain concerned about the significant liability and exposure from children or other unauthorized persons playing on the lifts that could lead to injury. Many operators at the conference reported that while they have installed the lifts, they have yet to be used in practice. 

3. Room Reservations – Under the 2010 ADA Standards, hotels must now modify their policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as other individuals; be able to identify and describe accessible features in the hotel and guest rooms offered through their reservations service; ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type; and prevent accessible guest rooms from being double booked.   As a practical matter, this will require many hotel operators to revise their electronic reservations systems and to train employees who take reservations so that they understand the features of accessible rooms.

4. Food Allergies – The Department of Justice has now identified all severe food allergies as disabilities, which could trigger reasonable accommodation requirements under the ADA.  This pronouncement could have wide-ranging implications for all hoteliers that serve food, either as a primary or secondary practice. Thus, hospitality opera­tors should evaluate their practices for offering and providing accommodations for food allergies to minimize any potential exposure to disability discrimination charges under the ADA. While there may not be a “one size fits all” solution to this issue, hospitality companies can take prudent steps to ensure that guests with allergies have the ability to fully and equally enjoy the dining services and the social benefits that accompany such services

5. Website Accessibility – Online marketing is a key tool for hotels and resorts, and most individuals will review a hotel’s website before booking their stay. Thus, it is critical that hotels position themselves as an ADA-friendly property, with notices about their accessible rooms and amenities. In addition, to the extent hotels allow guest to check room availability or book a stay online, the website must be accessible for individuals with visual and other impairments. The Department of Justice has begun to focus on website accessibility for online retailers, and more individuals are filing civil suits over inaccessible on line services. 

Overall, the hospitality industry should continue to be vigilant and proactive in ADA compliance ensuring their property meets accessibility requirements before a civil complaint is filed. Necessary steps include an internal audit and inspection of the entire property to ferret out areas needing improvement, staff training on ADA policies and procedures and how to respond to guest inquiries on the phone or in person, and finally, removing architectural and structural barriers where readily achievable to ensure barriers to access are eliminated. 

Our next speech will be at The Lodging Conference in Scottsdale on September 16 where we will discuss "ADA Compliance: Implications for Owners and Managers When Acquiring or Developing New Lodging Facilities." 
 

Hospitality Employers Are Ready for Meaningful Guidance on Wellness Programs from EEOC

By:      Kara M. Maciel

The EEOC is holding a public meeting tomorrow, May 8, 2013, to discuss wellness programs and how the EEOC should interpret them under the ADA, GINA and other laws. This is welcome news to the employer community, who has been left without any guidance from the agency since 2000 as to how it will enforce wellness programs. The uncertainty generated by this lack of guidance has hampered businesses from implementing, or expanding, effective wellness programs.   

As we have explained in previous articles, the EEOC regulations, and the EEOC’s Interpretive and Enforcement Guidance permit employers to conduct voluntary medical examinations, including voluntary medical histories, as part of a voluntary employee wellness program. In a formal 2000 Guidance, the EEOC stated that "[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate." 

The employer community has long awaited guidance from the EEOC on the nature and extent of incentives it can offer in wellness plans.  Specifically, key questions that the agency has refused to address are (i) whether and to what extent a reward or incentive mandates participation in the program, or (ii) whether the withholding of the incentive for not participating constitutes a penalty, thereby making the wellness program involuntary. In a letter issued earlier this year, the EEOC did not take a position on this key question, and employers are hopeful the May 8 public meeting will begin the process towards meaningful EEOC guidance.

Wellness programs are becoming increasingly popular with employers as they struggle with rising health care costs and looking for ways to incentivize their workforce to adopt a healthier lifestyle. In recent years, wellness programs have received a renewed focus as a result of the Affordable Care Act which provides new incentives and increased flexibility

There are legal implications, however, if wellness programs are not established correctly that could run afoul of federal discrimination and state privacy issues. Under the ADA, employers are prohibited from asking disability-related questions or conducting medical examinations unless the inquiry is job related and consistent with business necessity. Generally a Health Risk Assessment (HRA) does not meet this standard. The ADA, however, does allow voluntary medical exams or inquiries as part of an employee health program at work. Employers also must provide reasonable accommodations, absent undue hardship, to those individuals who are unable to meet the health outcomes or engage in specific activities due to a disability. Under GINA, wellness programs that provide rewards for completing a HRA requiring disclosure of genetic information (including family medical history) is unlawful, even if the incentives are not based on the outcome of the assessment and regardless of the amount of the incentive. 

To date, the key to the EEOC’s guidance on wellness programs under both the ADA and GINA has been that any participation in the program or disclosure of health information must be voluntary. Hopefully, after tomorrow’s public meeting, the EEOC will provide clarity to employers that incentivize wide participation by individuals in effective workplace wellness programs. 

Attention Food Service Providers: Celiac Disease and Severe Allergies Now Classified as Disabilities Under ADA

Andrea R. Calem and Frank C. Morris, Jr. have released an Act Now Advisory  - DOJ Serves Notice: Celiac Disease and Severe Allergies Now Classified as Disabilities Under the Americans With Disabilities Act, Creating Far-Reaching Implications for Virtually Every Facility Serving Food.    

Following is an excerpt:

A recent settlement agreement between the United States Department of Justice (“DOJ”) and Lesley University in Cambridge, Massachusetts explicitly extends the protections of the Americans with Disabilities Act (“ADA”) to individuals with severe allergies and autoimmune conditions such as celiac disease. The position of the DOJ Civil Rights Division reflected in this precedential settlement agreement shows that every entity serving food to the public, leasing to those who serve food and even employers with cafeterias must consider how ADA requirements may affect what food is offered, how it is prepared and even how it is stored.

Read the full advisory on the Epstein Becker Green website.

Pool Lifts Must Comply With ADA Regulations By End of January

By Kara Maciel and Jordan Schwartz  

As a reminder, January 31, 2013 is the deadline for hotels and other places of public accommodation to comply with the Americans with Disabilities Act’s (“ADA”) requirements set forth in the 2010 Standards for Accessible Design (“2010 Standards”) related to the provision of accessible entry and exit to existing swimming pools, wading pools and spas (including pool lifts). 

As we explained here, although the effective date for the 2010 Standards was March 15, 2012, in response to public comments and concerns, the U.S. Department of Justice (“DOJ”) provided a 10-month grace period for compliance. This grace period will end on January 31, 2013. Our recent blog post explains the 2010 Standards’ requirements and sets forth what pool and spa owners and operators must do to ensure compliance with the law.

There are substantial risks of non-compliance with the 2010 Standards. Indeed, the DOJ may obtain civil penalties of up to $55,000 for just one ADA violation, and penalties up to $110,000 for any subsequent violation. Furthermore, a lack of compliance greatly increases the risk that a “drive-by” plaintiff will commence a costly lawsuit against your property. 

Pool Lift ADA Compliance Deadline Quickly Approaching

By Kara Maciel and Jordan Schwartz

As you know if you are a reader of our blog, in 2010 the U.S. Department of Justice (“DOJ”) published updated regulations under the Americans with Disabilities Act (“ADA”), which adopted the 2010 Standards for Accessible Design (“2010 Standards”). As we explained here, the 2010 Standards contain specific accessibility requirements for a number of types of recreational facilities, including swimming pools, wading pools and spas. As we also reported in this blog here, while the effective date of the 2010 Standards generally is March 15, 2012, in response to public comments, the DOJ extended the date for compliance for the requirements related to the provision of accessible entry and exit to existing swimming pools, wading pools and spas to January 31, 2013. 

During the several months, issues surrounding portable v. fixed pool lifts have been at the forefront of these new swimming pool regulations. The 2010 Standards for pool lifts require lifts to be fixed and to meet additional requirements, including location, size of the seat and lifting capacity. Thus, to the extent it is “readily achievable,” a pool owner and operator must provide a fixed lift that meets all of the 2010 Standards’ requirements.  There is, however, a new type of “safe harbor” for businesses who purchased a portable, non-fixed lift prior to March 15, 2012. Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the DOJ has confirmed that as a matter of prosecutorial discretion, it will not enforce the fixed elements of the 2010 Standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012, so long as those lifts otherwise comply with the requirements of the 2010 Standards. Notably, one such requirement is that the pool lift remains in place and be operational during all times that the pool is open to guests.  

It is important to note that this “safe harbor” does not exist for any companies that purchased a portable pool lift after March 15, 2012. Indeed, if a portable lift was purchased after March 15, 2012, the obligation to remove barriers is ongoing, and an employer has an obligation to provide a fixed lift that meets all of the 2010 Standards’ requirements the extent it is readily achievable to do so.

While good news for some pool owners, it is worth reminding that there are significant risks of non-compliance with the 2010 Standards, including the threat of lawsuits and complaints from “drive-by” plaintiffs. Moreover, the DOJ may obtain civil penalties of up to $55,000 for just one ADA violation, and penalties up to $110,000 for any subsequent violation. 

Fitness Club Responds to ADA Claim from Child with Special Needs with Updated Policies and Procedures

By: Kara M. Maciel and Jordan Schwartz

A recent allegation of disability discrimination from the parents of a three-year old boy with special needs has resulted in a national fitness club chain revising its policies and procedures and implementing staff training.  The alleged discrimination occurred after the child had been playing with toys in the fitness club’s Kids’ Club and had refused to move from his position in front of a slide.  Upon learning from his parents that he had autism, a staff member informed them that, had the staff known that he was autistic, they would not have allowed  him to play in the Kids’ Club.

In response to this incident, the fitness center has taken immediate steps to revise its policies and procedures and institute training to ensure that similar incidences do not occur in the future.  In particular, the fitness center has developed new card check technology which will make certain that staff members are aware of children with special needs and will monitor staffing levels.  Additionally, the national fitness center also sent a memorandum to all of its employees instructing them on how to better attend to children with autism. 

Title III of the Americans with Disabilities Act (“ADA”) requires places of public accommodation, including fitness and health clubs, to make goods and services available to and usable by individuals with disabilities on an equal basis with the general public. As our blog readers are well aware, to ensure compliance with the ADA, all employers–including fitness health club owners and operators–must regularly evaluate and modify their policies and procedures to ensure sensitivity towards customers with disabilities.  Employers must also provide sufficient training to their managers and front-line staff members regarding their revised policies and procedures, accessible elements within the club and effective communication and interaction with customers with disabilities.  Indeed, despite the best crafted policies, a manager’s ill-advised communication is often the genesis of an ADA discrimination lawsuit. 

This recent incident serves as an excellent reminder for all fitness and health clubs that evaluating and revising policies and instituting staff training on such policies should be your two most important “take-aways” to best protect your club from costly legal exposure resulting from violations of the ADA.

Employment "At-Will": What UK Companies Doing Business in the US Need to Know

By Matthew Sorensen and Dana Livne

One of the major ways in which American employment law has traditionally differed from its British counterpart has been its entrenched employment “at-will” doctrine. The “at-will” employment doctrine provides employers with the right to terminate their relationships with their employees at any time, with or without notice or cause.  UK companies doing business in the US are often relieved to be advised that they become “at-will” employers to their US-based employees. In the US, unless an employer has entered an employment contract or collective bargaining agreement that expressly limits the employer or employee’s rights to terminate the employment relationship, employment is considered “at-will.” 

In the UK, on the other hand, under the Employment Rights Act 1996 (ERA), every employee must be provided with a written statement of the terms and conditions governing their employment within two months of commencing work. In fact, under the Common Law, some changes to working conditions cannot be made without the employee’s consent.  The controversial Beecroft Report, commissioned by the UK government, has recently called for changes in the dismissal procedures in Britain to mimic the American “at-will” doctrine.  The theory is that if employers are permitted to terminate workers with more ease and less “red tape,” it will encourage the UK’s financial growth, support business, and boost the economy. Indeed, according to the Institute of Directors, the UK business community is supportive of these measures, with a third of companies surveyed claiming that it would lead them to hire more workers.

However, the experience of “at-will” employers in the US has been not without its challenges. Although employers in the US who are not parties to employment contracts or collective bargaining agreements have a significant amount of discretion in determining whether and how to discharge an employee, the freedom afforded by “at-will” employment has been eroded in many respects by robust anti-discrimination laws.  Even in the context of “at-will” employment relationships, employers must remain cautious when disciplining and terminating employees.  A misstep can potentially lead to costly discrimination claims.

The US has developed a comprehensive body of law that places a number of limitations on employers’ rights to terminate “at-will” employees.  Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of the individual’s race, color, sex, religion, or national origin (the “protected classes”).  The Age Discrimination in Employment Act (ADEA), prohibits discrimination against individuals that are older than 40 years old on the basis of their age.  Individuals with disabilities are protected under the Americans with Disabilities Act (“ADA”), and the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination on the basis of genetic information. In addition to the protections established by these federal laws, many US states have also enacted their own state-specific statutes that provide additional protections to employees, such as prohibiting discrimination on the basis of sexual orientation, political affiliation, and physical appearance.  Enforcement of these statutes has led to a long line of cases in which state and federal courts in the US have found that employers wrongfully terminated “at-will” employees based on protected characteristics.  Even layoffs or termination policies that seem neutral on their face have been found to be discriminatory when they had a disproportionately negative impact on a “protected class” of employees. 

Charges of discrimination can be damaging to workplace morale, public relations, productivity and the company’s bottom line.  Indeed, even in cases involving baseless claims of discrimination, employers may be forced to expend significant resources to defend themselves in administrative and court proceedings.  Employers in the US must implement creative strategies to thwart potential claims of discrimination before they arise, and to best position themselves to defend any claims of discrimination that do arise. The first step in protecting against claims of discrimination related to termination decisions is to ensure that the employer has a clear policy governing employee conduct and discipline that specifically reminds employees that their employment remains terminable “at-will.” The policy should provide a uniform and fair manner to respond to performance failures and misconduct by employees. For example, it may be appropriate to implement a progressive discipline policy.  Such policies typically establish a schedule of progressively severe disciplinary sanctions for performance failures or acts of misconduct, often beginning with oral warnings and ending in termination. However, entities that establish progressive discipline policies should reserve their rights to short-circuit the progressive disciplinary process and immediately terminate the employment relationship or take other appropriate disciplinary action as they deem necessary.

In addition, employers must ensure that they follow their discipline and termination policies consistently.  Those companies that do not consistently apply their rules to similarly situated employees can frequently encounter problems in discrimination lawsuits where it can be essential to have evidence that a worker was treated the same as other employees holding his or her position who are not members of the worker’s “protected class.” Companies are advised to maintain clear and consistent documentation of all disciplinary actions. A trail of properly documented disciplinary actions is always the best evidence to defend against allegations that an employee was terminated or subjected to other disciplinary action for discriminatory reasons. Employers should also conduct periodic anti-discrimination training for their employees and managers. For managers, particular attention should be given to reinforcing the need for consistent and non-discriminatory application of the company’s disciplinary policies.

In a competitive economy, the benefits to an “at-will” employment setting are clear.  Employers can quickly dismiss workers who fail to comply with the company’s disciplinary rules or who do not add the expected value to business operations.  However, to protect against charges of discrimination, companies operating in the US should carefully craft their discipline and termination policies and ensure that their managers are properly trained in the application of those policies. A proactive approach to planning and implementing uniform and fair procedures governing discipline and discharge will help companies avoid costly discrimination claims and focus on the continued success of their business in the US.

DOJ Postpones ADA Compliance Date for Pool Lifts

By:  Kara Maciel

On March 15, 2012, the U.S. Department of Justice (“DOJ”) had temporarily postponed compliance with the 2010 ADA Standards as it relates to providing accessible entries and exits to pools and spas.  That day was set to expire later this month, on May 21, 2012, but the DOJ has announced that it will extend that compliance date to January 31, 2013 – a nine month extension from the original compliance date of March 15, 2012.

This extension to January 31, 2013, however, does not change the substance of the DOJ’s requirement that lifts be “fixed.”  The DOJ failed to address concerns raised by the lodging industry and associations through the public comment period that fixed lifts could increase liability to operators from children or misuse around unattended pools, that lifts should be able to be shared between multiple pools and spas, or the concerns over extensive electrical and construction work that would be associated with installing a fixed lift. 

What this means for pool and spa operators is that, while they now have additional time to bring their property into compliance, the requirement that a single fixed lift be installed for every pool and spa on the facility remains firm, and non-compliance could subject the owner and operator to liability under the ADA from a DOJ investigation or from a private lawsuit. 

5 Ways to Avoid a $55,000 Fine from the DOJ

By:  Kara M. Maciel

Today, March 15, marks the effective date of the 2010 ADA Standards for hotels, restaurants, retailers, spas, golf clubs and other places of public accomodation.  As we have written about previously, there are several new requirements and obligations that the hospitality industry must implement in order to ensure their properties are compliant with the new regulations.  Below are five steps every hospitality owner and operator should consider to avoid costly fines and lawsuits:

1.  Implement new reservation policies for blocking off rooms and ensuring staff communicates effectively with guests as to the accessible elements within the Hotel.

2.  Know what you can and cannot say to individuals with a service animal.

3.  Got a pool, hot tub, sauna, or fitness room?  Understand your new obligations for modifying those areas which are not covered by the 2010 ADA Standards' safe harbor.

4.  Train staff members (including reservations agents, concierge, front desk, restaurant staff) on accessible elements within your property and how to communicate and interact with guests with disabilities. 

5.  Conduct an walk-through inspection of your property with legal counsel to review compliance efforts and recommendations for improving compliance.

In light of increased penalties from the DOJ ($55,000 for the first violation and $110,000 for each subsequent violation) and the tidal wave of recent professional plaintiff lawsuits, we expect enforcement efforts within the hospitality industry to significantly rise.  As the old adage goes, an ounce of prevention is worth a pound of cure.  Reviewing policies and procedures, training staff members, and conducting an inspection protected by the attorney-client privilege will go a long way to ensure your property and facility does not face costly compliance issues. 

 

 

For Private Clubs, a Little "Discrimination" (in Membership) Can Go a Long Way!

By:      Mark M. Trapp

In these challenging economic times, many private clubs are finding it increasingly difficult to attract new members, or to retain existing members.  Over the last few years many clubs have lost members, and many more are facing substantial drops in revenues due to a decline in money spent by members on activities such as golfing or dining out.  Many golf, country and social clubs are finding it difficult to sustain their amenities and level of service. 

Because the economic situation is decreasing the potential membership pool, many clubs are offering incentives to join, such as reducing initiation fees, while some are even exploring other more drastic options to generate revenue, such as opening their doors to the general public, moving toward a semi-private status or creating public/private hybrid clubs.

Economically, such decisions may or may not make sense. But allowing virtually anyone into an ostensibly “private” club can have other than strictly economic ramifications. In addition to making the club’s members wonder just how exclusive the club really is (which could itself lead to loss in membership and decreased revenues), a decision to accept virtually anyone as a member could actually open up a private club to potential legal liability for discrimination from which it would otherwise be exempt.

This seemingly paradoxical result stems from the fact that under both Title VII of the Civil Rights Act of 1964, as amended (which prohibits discrimination based upon race, color, religion, sex and national origin) and Title I of the ADA (Americans with Disabilities Act), private membership clubs enjoy an exemption from liability.  Both the ADA and Title VII expressly state that the definition of “employer” found in each statute “does not include” a bona fide private membership club which is exempt from taxation under section 501(c) of the Internal Revenue Code.

In order to qualify for this statutory exemption, a club must be tax exempt and it must be “a bona fide private membership club.” Because tax exempt status is relatively straightforward, the court battles over this exemption usually hinge on whether or not the club meets the criteria of being a bona fide private membership club. 

Generally, courts have defined a private membership club as “an association of persons for social and recreational purposes or for the promotion of some common object (as literature, science, political activity) usually jointly supported and meeting periodically, membership in social clubs usually being conferred by ballot and carrying the privilege of use of the club property.” Quijano v. University Federal Credit Union, 617 F.2d 129, 131 (5th Cir. 1980). While country clubs, fraternal lodges, swim clubs and the like usually fit comfortably within this definition, the decision to open the use of the club’s facilities and/or membership to anyone from the general public could lead to the loss of the otherwise-available statutory exception.  In deciding whether a club is private, the EEOC and courts consider how selective it is in choosing its members. See EEOC Compliance Manual § 2-11(B)(4)(a)(ii) (among the three factors considered is whether there “are meaningful conditions of limited membership.”); and Quijano, 617 F.2d at 131 (noting that “in order to be exempt” a private club “must require some meaningful conditions of limited membership.”). 

In construing whether a club meets the requirement of “meaningful conditions of limited membership,” courts have commonly focused on factors such as:

  • whether the club allows members of the public full access,
  • whether the club limits its total membership and how restrictive or stringent its requirements are for membership, and
  • whether applicants for membership must be personally recommended, sponsored or voted on by other members. 

See e.g. EEOC v. University Club of Chicago, 763 F.Supp. 985 (N.D. Ill. 1991)(concluding that a club was not private because it gave both members and guests essentially the same privileges); and Bommarito v. Grosse Pointe Yacht Club, 2007 U.S. Dist. LEXIS 21064 at *30-31 (E.D. Mich. 2007)(finding requirements of a written application, sponsorship of three current members, posting of the candidacy at the clubhouse, consideration by the board of directors, and a secret ballot to constitute “meaningful limitations on membership.”).  As stated by one leading opinion, “selective membership practices are the essence of private clubs.”  EEOC v. The Chicago Club, 86 F.3d 1423, 1436 (7th Cir. 1996).

Based on the foregoing, it should hardly come as a surprise that a “private” club which opens itself up to the public, or which accepts virtually every applicant meeting minimal criteria or without recommendation or some form of personal screening may be placing its statutorily-afforded exemption in jeopardy.  Because a carefully structured and properly run private club should be able to meet the requirements for exemption from the ADA and Title VII, clubs should be careful that in their push for additional revenues and/or members, they do not open themselves up to potential forms of liability.  It should be noted that depending upon the jurisdiction, there may be applicable state, local or municipal discrimination laws which provide similar protections, and which may be construed as covering private clubs.

Simply stated, in the private club industry, a little “discrimination” can go a long way in avoiding potential lawsuits based on discrimination! 

ADA Update: New Swimming Pool Regulations Take Effect Soon!

By: Kara M. Maciel

As hoteliers and hospitality employers know, the upcoming March 15, 2012 deadline for the 2010 ADA Standards will have significant impact on hotel operations. Some of the regulations involve new features that previously had not been regulated by the ADA, including swimming pools, spas, exercise facilities, golf and sauna and steam rooms.  All newly constructed recreational facilities built after March 15, 2012 must comply with the new standards; whereas, existing facilities must meet the new standards as soon as readily achievable.  For hoteliers, some of the most common elements that will affect operations immediately will be pools & spas.   

Pools & Spas Compliance Standards

The new standards require access which mandates either adding a pool lift or renovating the swimming pool and spa entirely depending on the size of the pool:

·         For pools less than 300 feet, there must be at least one means of access with either a sloped entry or a lift.

·         For pools 300 feet or longer, there must be two means of access with the primary means of access either a sloped entry or a lift. 

·         A wading pool must have a sloped entry. 

If the hotel opts for a pool lift, that also must meet specific requirements under the ADA 2010 Standards on elements such as seat height and width, foot and arm rests, controls, lifting capacity and submerged depth. 

For spas, the regulations are similar and the spa equally must be accessible with at least one required means of access through either a sloped entry or a lift. If the resort has more than one spa, then at least 5 percent of the total number should be accessible.     

Questions for Compliance

The cost of compliance could be expensive for hotel owners, especially in a difficult economy. For those hoteliers that already have pools & spas, the owners must remove the access barriers only to the extent they are readily achievable. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. Thus, if your property has the resources to make the necessary modifications, such as purchasing a pool lift, then such modifications should be accomplished by the March 15 deadline. 

If the cost of compliance is not readily achievable, hoteliers would be prudent to budget and plan for updating its access barriers as soon as possible. Of course, that does not relieve the entity from exploring other ways to provide access to guests with disabilities, such as providing staff assistance. 

Risks of Non - Compliance

Failing to comply can be costly for the hotel owner and operator. Not only is there an increased threat of lawsuits and complaints from the overzealous plaintiffs’ bar, but the Department of Justice has raised the stakes for violations, in the amount of $55,000 for the first violation and $110,000 for any subsequent violation. 

Stay tuned for additional articles on compliance questions under the ADA. 

Top Legal Issues for the Hospitality Industry to Watch in 2012

by:  Matthew Sorensen

 1.      Deadline For Compliance With New ADA Accessibility Rules Approaching:

 On March 15, 2012, hospitality establishments will be required to be in compliance with the standards for accessibility set by the Department of Justice’s final regulations under Title III of the ADA (2010 ADA Standards). The regulations made significant changes to the requirements for accessible facilities, and will require additional training of staff on updated policies and procedures in response to inquiries from guests with disabilities. Among the most significant changes for hospitality businesses are:           

·         New structural and communication-related requirements for automatic teller machines (“ATMs”);

·         Accessible means of entry for pools and spas – for pools, a sloped entry or a pool lift is required for the primary method of entry, and for spas, the means of entry may be a pool lift, transfer wall, or transfer system;

·         At least 60% of public entrances must be accessible as compared with 50% under the former standards;

·         A new requirement to modify hotel policies to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

·         Golf facilities must have either an accessible route or golf cart passages with a minimum width of 48 inches connecting accessible spaces of the golf course.

2.      Tip Credit and Tip Pooling Lawsuits Remain The Lawsuit Du Jour:

 In recent years, the number of individual and collective action lawsuits involving allegations of tip credit and tip-pooling violations by hospitality businesses has significantly increased. Given the ever changing web of state, federal and local laws regarding tip credit and tip pooling arrangements, it is important that hospitality employers with tipped employees periodically audit their pay practices to ensure compliance with all applicable rules. To minimize the risk of tip credit and tip pooling violations employers should ensure that:

·         They inform tipped employees of any tip credit claimed against their wages;

·         Employees report their tips and that proper records of tips are maintained; and

·         Management and other categories of workers who are precluded from participating in tip pools by federal, state or local law do not participate in such pools.

3.      Increase In Organizing Efforts By UNITE HERE:

The NLRB’s new rule amending the procedures for union election cases introduces a number of union-friendly changes to the election process, including the elimination of the right to seek NLRB review of regional directors’ pre-election rulings. These changes increase the risk that unions will seek approval of smaller units for elections that are based on the extent to which employees in such units support union representation. 

In addition, the NLRB has also announced that its new rule requiring employers to post a notice describing employee rights under the NLRA will go into effect on April 30, 2012. The notice has the potential of generating more discussion of unionization among employees as well as more employee and union-initiated representation campaigns. 

It is anticipated that groups like UNITE HERE will likely attempt to capitalize on these recent changes to increase unionization in the hospitality sector.

4.      Social Media Remains A Hot Topic With The NLRB:

As the use of social media has steadily grown among restaurants and hoteliers, so too has the NLRB’s interest in cases involving social media policies and social media-related discipline. While employees do not receive protection under the NLRA merely by posting a work-related complaint on a social media website, under some circumstances employee complaints made using social media may be found to constitute protected concerted activity. 

As such, hospitality employers need to remain cautious when crafting social media policies and any time they contemplate taking adverse action against an employee for social media activity. 

5.      U.S. Supreme Court to Address The Patient Protection and Affordable Care Act (PPACA):

The U.S. Supreme Court is scheduled to address the challenges to the constitutionality of PPACA in 2012 and it is possible that the Court will issue an opinion on the matter before its June break. If the statute, or at least the portion of the statute that applies to employers and insurance companies, is found to be constitutional, hospitality employers with more than 50 employees will be required to provide certain mandated levels of healthcare coverage to all employees who regularly work more than 30 hours per week by 2014, or face penalties. 

Lessons Learned: 

In light of these issues, it is important that hospitality employers take action to evaluate their policies and practices, including those related to pay, social media, employee handbooks, and health insurance to ensure that they are compliant with applicable legal requirements. It is equally important that they plan proactively to address the potential business challenges posed by the NLRB’s new union-friendly election and notice rules and PPACA.