Category Archives: Legislation

by | March 16, 2012 · 12:34 pm

Hospitality Industry Legal Risks: Hotels Granted "11th Hour" Reprieve In Americans With Disabilities Act (ADA) "Pool Lift Compliance" Mandate

 “…The federal government sought to make public pools, including hotel pools, accessible for people with disabilities in 2010. There are about 51,000 hotels in the USA, and the majority have some kind of a pool…”

The U.S. Justice Department will grant the hotel industry at least a 60-day extension for complying with a new rule aimed at making existing hotel pools compliant with the 22-year-old Americans With Disabilities Act. It’s a decision that the hotel industry lobbied hard for at the 11th hour, as a number of hotel owners and managers suggested they might close their pools or fill in their whirlpools due to the uncertainty the new rules created.

For more:  http://travel.usatoday.com/hotels/post/2012/03/hotel-pool-lifts-deadlines-her-confusion-persists/648998/1

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by | March 15, 2012 · 8:23 am

Hospitality Industry Legal Risks: California Hotel Owners Compliance With Americans With Disabilities Act (ADA) "Pool Lift Regulations" Is Effective March 15; Vulnerable To "Unruh Civil Rights Act" Violation Lawsuits

“…California-based businesses should be particularly worried.  The Unruh Civil Rights Act, itself a wellspring for abusive litigation, incorporates the ADA by reference, making any violation of the ADA also a violation of Unruh…Unruh has more teeth than the ADA—$4,000 per violation, regardless of intent, plus attorney’s fees…”

 The Department of Justice granted the industry’s call for a clarification: But it was not the answer they wanted. All 300,000 public pools in the United States must install a permanent fixed lift. The deadline for compliance is tomorrow, March 15. Call it “Poolmageddon.”

There is no way all 300,000 pools can install permanent lifts by Thursday. There simply are not enough lifts in existence or enough people who know how to install them, according to industry spokesmen. Plus, each lift costs between $3,000 and $10,000 and installation can add $5,000 to $10,000 to the total.

The Administration has assured the industry that it does not plan to enforce the new guidelines right away.  But the ADA contains a private enforcement mechanism, empowering private attorneys to bring suit immediately, collecting attorney’s fees from violators.  As the article mentions, trial lawyers contributed over $45 million to Obama’s campaign.

For more:  http://ordinary-gentlemen.com/timkowal/2012/03/15/new-ada-guidelines-expose-pool-operators-to-private-lawsuits/

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by | March 13, 2012 · 9:18 am

Hospitality Industry Legal Risks: Hotel Management Must Comply With Americans With Disabilities Act (ADA) Revisions Concerning Recreational Areas; Exercise Rooms, Saunas And Benches Are Areas Of Concern

New revisions to the Americans with Disabilities Act are bringing hotel recreational areas under the watchful eye of the U.S. Department of Justice for the first time. And unlike other guidelines covered by the 1991 ADA Standards for Accessible Design, recreation areas do not qualify for safe harbor.

Exercise rooms:

  •  The key issue in exercise rooms is clearance space, the moderators said.
  • “At least one of each type of equipment is required to be on an accessible route and have clear floor space adjacent to the equipment so that somebody is able to park their mobility device there and then get out of that device and transfer or may be able to walk and get on to this piece of equipment,” Salmen said.
  • More than one piece of equipment can share the same clear floor space, he said.
  • “This is going to have implications on how your fitness rooms are laid out, and (in) a lot of small fitness rooms you will have to do rearranging or potentially may even have to lose a piece of equipment in order to try to provide these clear floor areas,” Anderson added.

Saunas and steam rooms:

  •  Hotels must have accessible routes into saunas and steam rooms. Further, they must have enough space within the rooms so guests with disabilities can turn around and get out, Salmen said.
  • “So doors have to be compliant as per the door criteria with 32 inches of minimum clear opening width. The pressure on that door can’t be more than five pounds. The thresholds for those doors have to be compliant,” he said.

Benches:

  •  Benches in hotel locker rooms and steam rooms can be as little as 42 inches with a depth of 20 inches to 24 inches, Salmen said.
  • “But in these new rules we are now required to have a maneuvering space in front of the bench and at one end of the bench so that it is (easier to slide over) from the wheelchair seat onto the seat of the bench,” he said.
  • Benches must be attached to a wall or provide a back rest so users will have something to lean against, Salmen added.

For more:  http://www.hotelnewsnow.com/Articles.aspx/7732/ADA-standards-call-recreation-areas-into-focus

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Filed under Guest Issues, Insurance, Legislation, Liability, Maintenance, Management And Ownership, Pool And Spa, Risk Management, Training

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by | February 13, 2012 · 10:34 am

Hospitality Industry Employee Risks: The "2012 California Employment Law" Makes It Unlawful To "Misclassify Employees As Independent Contractors" With Severe Penalties Imposed

CLICK ON "CALIFORNIA" TO VIEW "2012 EMPLOYMENT LAW" UPDATE

For more:  http://www.jdsupra.com/post/documentViewer.aspx?fid=396703df-f68e-4468-8dc9-7bc9a9a6ee01

 

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by | February 9, 2012 · 1:57 am

Hospitality Industry Compliance Risks: Hotels Must Equip Pools And Spas With "Pool Lifts" To Comply With 2010 ADA Standards

The 2010 ADA Standards for pool access have significantly changed the requirements for municipal and private pools by requiring, for the first time, that they be equipped with independently useable pool lifts during all operating hours.

Since the DOJ announced its intention to require lifts in nearly all pools, the hotel industry and others have opposed or sought clarification of this provision.

In October, 2010, the American Hotel & Lodging Association sought clarification of the pool lift requirements which become mandatory on March 15, 2012. The AH&LA noted that pool lifts, particularly fixed devices, are potentially dangerous to users and children playing around pools. Moreover, they can be quite costly to most pool operators. The industry’s concerns apparently fell on deaf ears as evidenced by the DOJ’s position issued this week.

The DOJ has officially confirmed that:

  • The mandatory date for installation of pool lifts is March 15, 2012.
  • Pool lifts need to be installed at each pool during all operating times and be independently operable by disabled persons.
  • Pool lifts must be “fixed” unless the operator can prove that doing so would not be “readily achievable” as defined in the ADA, in which event, a portable lift meeting all of the ADA Guidelines could be deployed.
  • Accessible lifts cannot be shared between a pool and a spa, each would seem to require a separate device.
  • Pool lifts must be properly maintained and in good repair, with any battery components charged for use.
  • Staff must be trained in the use and safety of pool lifts.

For more:  http://hotellaw.jmbm.com/2012/02/doj_flash_on_pool_lifts.html

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by | December 23, 2011 · 6:38 am

Hospitality Industry Employment Risks: California Hotels Must Have Comprehensive Corporate Policies To "Manage" Independent Contractors To Avoid "Steep Penalties" For "Willfully Misclassifying Employees"

On October 9, 2011, Governor Jerry Brown signed California Senate Bill 459 (“SB 459”), which adds sections 226.8 and 2753 to the California Labor Code. SB 459, effective January 1, 2012, imposes steep penalties on employers who willfully misclassify employees.

In light of federal initiatives and California’s enactment of SB 459, hospitality employers should consider taking various steps to evaluate their existing independent contractor relationships:

  • Develop and publish a corporate policy on the engagement of independent contractors and the management of those relationships. As part of this policy, require that approval be obtained from a knowledgeable employee before any independent contractor relationship is established.
  • Train employees who manage independent contractor agreements as to how to work with independent contractor relationships.
  • Ensure that the company has a well-written independent contractor agreement for each contractor, that it is accurate, complete, and individually negotiated.
  • Audit the company’s independent contractor relationships, including a review of any past decisions or determinations concerning independent contractor status.
  • Obtain a written legal opinion from counsel regarding the appropriateness of the classification of workers as independent contractors, based on counsel’s understanding of the specific factual situations at issue.

For more:  http://www.seyfarth.com/publications/Five-Key-Labor-And-Employment-Issues-Hospitality-Employers-Need-To-Be-Aware-Of

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by | December 19, 2011 · 6:14 am

Hospitality Industry Employee Risks: Tennessee Hotels Fined By Department Of Labor For "Fair Labor Standards Act" Minimum Wage Violations

“…Violations included charging excessive room and board to employees who also lived at a property or paying housekeepers by the room cleaned, resulting in a person’s pay falling below the $7.25 minimumwage; paying “straight time” for all hours worked, including overtime; and failing to pay for all hours worked by temporary employees…”

The U.S. Department of Labor said Wednesday that 35 franchised hotels and motels, including 11 in Middle Tennessee, violated minimum wage, overtime and other labor laws during the fiscal year ended Sept. 30. The agency said it fined those businesses a cumulative $14,552 and recovered more than $173,000 in wages owed to 283 employees.

Some hotel and motel operators also misclassified employees as independent contractors, denying them legal protections under federal labor laws, the agency said.

The citations and fines are part of a multiyear enforcement initiative focusing on Tennessee’s hotel and motel industry, in which regulators have “found widespread noncompliance with the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act,” the agency said in a news release.

For more:  http://www.tennessean.com/article/20111215/BUSINESS01/312150046/U-S-Labor-fines-11-Middle-TN-hotels-wage-violations?odyssey=tab%7Ctopnews%7Ctext%7CFRONTPAGE

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by | December 7, 2011 · 7:58 am

Hospitality Industry Employment Risks: "Americans With Disabilities Act" Amendment Has Broadened Definition Of "Disability"; "Employment-Practices Liability" Claims Expected To Rise Dramatically

“…As a result of the EEOC rulings, which broaden the definition of disability to include protections for employees with, for example, cancer, diabetes or epilepsy… the definition of disability under the law was “significantly expanded” by the ADAAA, and she also expects claims numbers to grow as a result.”

“…A person with diabetes…you must provide reasonable accommodations—a place to test blood sugar, a break to take medications and time to rest…”

“…It’s cheaper to purchase (the proper Employment-Practices Liability coverage] than to defend yourself against one of these claims…”

Steps taken by federal officials to broaden the definition of “disability” is putting pressure on employers—and insurers are forecasting an increase in employment-practices liability (EPLI) claims.

The Americans with Disabilities Act Amendments Act (ADAAA), which went into effect on Jan. 1, 2009, directed the U.S. Equal Employment Opportunity Commission (EEOC) to revise its regulations “to restore the intent and protections” of the original act, and to address what lawmakers felt was a too-narrow view taken by courts of the original ADA provisions.

For more:  http://www.propertycasualty360.com/2011/12/01/ada-amendments-broader-definition-likely-to-cause

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by | October 16, 2011 · 7:06 am

Hospitality Industry Legal Risks: "Enabling Independence: Service For Guest With Disabilities" Outlines "Americans With Disabilities Act" (ADA) Compliance (Video)

[youtube=http://www.youtube.com/watch?v=nIGw7QKOJnY&feature=player_embedded]

This video “Enabling Independence: Service for Guests with Disabilities” outlines how the American Disabilities Act (ADA)affects the hospitality industry. It highlights the unique needs of guests with various disabilities and identifies how lodging employees can accommodate their desire for independence. It also covers expanded ADA requirements regarding power-driven mobility devices, service animals, and practical steps you can take to ensure the safety and satisfaction of guests with disabilities.

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by | October 4, 2011 · 5:44 am

Hospitality Industry Employee Risks: Colorado Hotel Owners Sued By U.S. Equal Employment Opportunity Commission (EEOC) For Firing White Workers In Favor Of Hispanic Workers

“…one of the fired employees was told she was being terminated because the hotel owners preferred non-American and non-Caucasian workers ‘because it was their impression that such workers are lazy’..”

The U.S. Equal Employment Opportunity Commission is seeking back pay for employees that federal officials said were fired from a Hampton Inn franchise in Craig, Colo., according to the lawsuit filed last week.

Former employees at a western Colorado hotel said they were fired and replaced with Latino workers because the business owners thought white and non-Hispanic workers were lazy, according to a federal lawsuit announced Monday.

The lawsuit claims the general manager of the hotel was told by the business owners “to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder.”

For more:  http://www.businessweek.com/ap/financialnews/D9Q51LLO1.htm

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