Category Archives: Uncategorized

April 21, 2013 · 12:27 pm

Hospitality Industry Legal Risks: California Restaurant Franchisee Settles EEOC “Disability Discrimination Lawsuit” For $100,000; Former Floor Supervisor With “Intellectual Disability” Demoted To Janitorial Position

“…The EEOC contends that once Alia took over,  Alia management demoted Morgan to a janitorial position, cut his hours and reduced  his hourly EEOCwages, thereby forcing him to find other employment and resign by  June 2009.   The EEOC’s lawsuit argued  that Alia Corporation thus engaged in disability discrimination that violated  the Americans with Disabilities Act  (ADA)…”

Alia Corporation, a franchisee  with over 20 fast-food chain restaurants throughout Central California, agreed  to pay $100,000 to settle a disability discrimination lawsuit filed by the U.S.  Equal Employment Opportunity Commission (EEOC), the federal agency announced  today.

The EEOC originally filed suit against the Merced,  Calif.-based company in 2011 on behalf of Derrick Morgan, a former floor  supervisor with an intellectual disability (EEOC v. Alia Corporation, Case  No. 1:11-cv-01549-LJO-BAM, U.S. District Court, Eastern District of  California).  Morgan was known to be a good employee and  promoted by previous management from crew member to super­visor in 2008.

As  part of the settlement announced today, the parties entered into a three-year  consent decree requiring Alia to hire an equal employment opportunity (EEO) monitor  to create anti-discrimination policies and procedures; a complaint process and  impartial investigations; a centralized tracking system for discrimination  complaints; a system to hold employees accountable for discrimination; and,  annual live disability discrimination training for all management and human  resources employees.  The $100,000 in  monetary relief shall be paid entirely to Morgan.  The EEOC will monitor compliance with the agreement.

“Employers cannot allow biases and stereotypes to factor  into employment decisions,” said Anna Y. Park, regional attorney for the EEOC’s  Los Angeles District Office, which includes Fresno in its jurisdiction.  “The EEOC commends Alia Corporation for  today’s settlement, as it marks a new path for Alia — one which includes equal  employment opportunity for all of their employees, regardless of disabilities.”

Melissa  Barrios, director of the EEOC’s Fresno Local Office, said, “Disability discrimination  charges are on the rise in California, comprising 30% of all charges  filed.  Workers who are unjustly  penalized due to their disabilities have protections under federal law, and the  EEOC is here to help.”

For more:  http://www.eeoc.gov/eeoc/newsroom/release/4-18-13.cfm

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January 14, 2013 · 8:31 am

Hospitality Industry Property Risks: Texas Restaurant “Natural Gas Fire” Caused By Faulty Water Heater; Damage Estimated At $15,000

“…When firefighters got to the scene, the cook there told them that he heard the hot water heater pop and Restaurant Firethat’s when they saw the fire… Crews immediately evacuated the restaurant and the surrounding businesses, but they also had to cut the gas off before they could put out the fire, which was located in the restaurant’s mechanical room…”

Fire officials said a hot water heater is to blame for a natural gas fire at a Chinese restaurant on the city’s northwest side. The fire broke out at about 4:18 p.m. Sunday afternoon at the Hunan Chinese Restaurant.

Fire officials said this natural gas fire caused about $15,000 worth of damage.

Nobody was hurt in the fire and the surrounding businesses opened back up later that Sunday.

For more:  http://www.ksat.com/news/Officials-Water-heater-causes-fire-at-Chinese-restaurant/-/478452/18116632/-/dt62eg/-/index.html

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September 3, 2012 · 6:18 am

Hospitality Industry Theft Risks: Wisconsin Restaurant Employee Arrested For “Cashing Two Unauthorized Businsess Checks” In His Name

“…the owner of Espana Restaurant and Bar discovered Johnson had cashed two unauthorized checks from the business in his name for $160 and $350…the checks were kept in a locked desk drawer in the basement of the business and were pre-signed to pay vendors…”

A 37-year-old Wauwatosa man is facing charges after he allegedly stole two checks from his employer and then cashed them in his name. Dana James Johnson was charged Thursday in Milwaukee County Circuit Court with one count of theft. If convicted, he faces up to nine months in prison and $10,000 in fines.

Officers then went to Community Financial, 4525 W. North Ave., where they found security video footage of Johnson coming into the bank and cashing the checks.

For more:  http://wauwatosa.patch.com/articles/tosa-man-charged-with-stealing-checks-from-a-milwaukee-restaurant

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November 1, 2010 · 12:04 pm

Hospitality Industry Employee Safety And Wage Issues: Hotel Management Should Expect 2011 OSHA Regulations To Require A Written “Injury And Illness Protection Progam” And Dept. Of Labor (DOL) Rule Requiring Full Disclosure On “Worker’s Pay Computation”

 

  • The Occupational Safety and Health Administration (OSHA) is developing a regulation mandating that employers have a written health and safety program, referred to as an Injury and Illness Protection Program or “I2P2.”
  • This rule would give an OSHA investigator the authority to find that an injury should have been avoided even if it was not regulated under a specific standard.
  • OSHA will also publish a regulation that will require employers to analyze every employee injury to determine if it is a work-related recordable musculoskeletal injury.
  • This regulation would set the stage for OSHA to revive its controversial ergonomics standard.

 

  • The Wage and Hour Division at DOL has a highly anticipated rule that would greatly expand recordkeeping requirements under the Fair Labor Standards Act (FLSA)
  • It would require employers to disclose how a worker’s pay is computed and complete a written “classification analysis” for each worker who is exempt or outside of the coverage of the FLSA.

For more:   http://www.worldtrademag.com/Articles/Column/BNP_GUID_9-5-2006_A_10000000000000932009

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August 19, 2010 · 10:16 am

Hospitality Industry Employment Risks: Hospitality Management Must Have “Valid” Reasons To Fire Employees

  • Make sure that you have a valid reason for firing (or laying off) the employee. Some invalid reasons include: retaliation, complaining about OSHA violations, discrimination, alien status, and any violation of public policy.
  • Keep it confidential: a company-wide Eblast is probably not the best approach to alerting others in the company of the employees’ situation. Rather, only telling those individuals that need to know is the best approach to ensuring that the employee does not hear about his firing before it happens.
  • Plan ahead: sounds simple enough, but by considering all the legal requirements you need to comport with before firing the employee, you will also alleviate a lot of legal concerns that may occur post-firing. This may include: severance offers, monies due, terms in the employment contract, company policies, etc.
  • Keep a paper trail: keeping copies of performance reviews, relevant correspondence, and other personnel documents will help protect you should there be a lawsuit later on.
  • The employee should not be completely surprised by the firing or lay-off. Whether it is keeping employees abreast of the struggling finances of the company, or alerting the worker to poor job performance, there should be a dialogue before the employment termination.

Although a majority of the American workforce is based on “at will” employment, essentially meaning that the employer-employee relationship can be severed at any time, there are still some viable concerns over a wrongful termination suit in any situation. Making sure you have a valid reason for firing an employee, and planning the conversation ahead of time will help with the actual firing and protect your company from many of the legal issues that follow.

In the end, honesty is almost always the best policy, and usually appreciated as the employee can take your reasons with them as they job hunt.

For more:  http://www.reuters.com/article/idUS348304971720100817

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August 16, 2010 · 8:28 am

Hospitality Industry Insurance Risk Management: Las Vegas Hotel Has Insurance Policy That Fails To Name Hotel As “Additional Insured”, Complicating Payment Of A Submitted Claim For Structural Damage

The floor collapsed and dropped almost a foot, resulting in damage to the structures of both the lounge and the hotel.

The Luxor also sought compensation as an “additional insured.” The lease between the casino and developer required the latter to name Luxor as an additional insured on all policies. No doubt the Luxor assumed (that dangerous word!) that this language covered its exposure to loss.

However, the developer’s insurance policy restricted the coverage of an additional insured. Luxor’s entitlement was limited to indemnification for money it paid to people injured by the developer’s acts or omissions. The casino was not entitled to compensation for its own losses…

The casino invoked the Unfair Insurance Claims Practices Statute, a law adopted by numerous state legislatures.

The Luxor Hotel & Casino Hotel contracted with a developer to construct and operate a restaurant called the Cathouse Lounge (nothing is subtle in Vegas) on the mezzanine level. The developer gutted the space, made structural modifications and installed new fixtures and equipment.

One night during Cathouse’s third month in operation, while a large crowd was enjoying good food and fun ambiance, a portion of the structure began to buckle. The floor collapsed and dropped almost a foot, resulting in damage to the structures of both the lounge and the hotel. The lounge was evacuated immediately. Thereafter the county Department of Building Services ordered Luxor to close both the Cathouse and damaged portions of the hotel pending repairs. Luxor hired an expert to determine the cause of the floor’s failure. Turns out the renovations were insufficient to support the sizeable number of people the lounge attracted.

Both Luxor and the developer paid to repair the structural deficiencies and for damage to their respective property. The Cathouse reopened in three weeks and submitted a claim to its insurance company. The Luxor also sought compensation as an “additional insured.” The lease between the casino and developer required the latter to name Luxor as an additional insured on all policies. No doubt the Luxor assumed (that dangerous word!) that this language covered its exposure to loss.

However, the developer’s insurance policy restricted the coverage of an additional insured. Luxor’s entitlement was limited to indemnification for money it paid to people injured by the developer’s acts or omissions. The casino was not entitled to compensation for its own losses. Yikes!

This is a very significant limitation. Luxor was seeking compensation for costs of repairing structural damage to its own facility, replacing its own destroyed property and interruption of its business. The insurance company denied the claim based on the indemnification-only coverage, and the court upheld the denial. This was not the plan Luxor had in mind when it included the requirement that the casino be listed as an additional insured in the developer’s lease.

But lawyers are clever folks and Luxor was well-represented. The casino invoked the Unfair Insurance Claims Practices Statute, a law adopted by numerous state legislatures. This act requires, among other consumer protection provisions, that insurance companies respond to claim letters within 30 days of receipt. The insurance company in the Luxor case waited months before acknowledging the hotel’s claim. The penalty for violation is mandatory payment of the claim. This is true even though the policy does not otherwise cover the claim. So the court awarded Luxor the money it sought. Sometimes the back door can be a great alternative.

For more:   http://www.hotelworldnetwork.com/legal/read-your-insurance-contract-closely-then-read-it-again

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August 2, 2010 · 7:18 am

Hospitality Industry Health And Safety Risks: Hotel Owners Found Liable For $34 Million Resulting From Carbon Monoxide Leak Injuring 23 Employees At Hotel Restaurant

A Baltimore jury has awarded $34.3 million to 23 employees of an Inner Harbor steakhouse who suffered brain damage as a result of carbon monoxide poisoning.

The plaintiffs worked for the Ruth’s Chris Steak House at the Pier V Hotel. The restaurant was evacuated on Feb. 2, 2008, after employees complained of dizziness and nausea. Carbon monoxide in the air was measured at potentially fatal levels.

Attorney Billy Murphy, who represented the plaintiffs, said Wednesday that the leak went on for weeks before the evacuation and that the hotel had removed a safety device that would have detected the problem.

The lawsuit named the hotel’s operator and owner. Murphy says Ruth’s Chris was not at fault.

Attorneys for the defendants could not immediately be reached for comment.

For more:   http://www.businessweek.com/ap/financialnews/D9H8A21O0.htm

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July 12, 2010 · 10:48 am

Hospitality Industry “Employee Theft” Risk Management: Hospitality Business Owners Must Amend Employment Manuals To Specifically Prohibit Employee Access To Company Records Once “Employment Ceases”

“…employers should amend their employment manuals to assert that any authorization granted to an employee to access the company’s networks, files or data automatically ceases when the employee has been terminated, tenders a resignation or forms an intent to leave the employer for any reason — irrespective of whether the employer has actually blocked the employee’s access…”

“…employers should make clear in their employment handbooks, manuals and employment agreements that any authorization to access company data is granted only in furtherance of the employer’s business purposes. They should state explicitly that any other access is unauthorized. Such language has been cited by courts in several cases where employer CFAA claims have been allowed…”

“…employers must remain vigilant to retrieve laptop computers from employees immediately after an employee gives notice. They should also immediately change passwords and close remote access upon learning of an employee’s intention to leave the company…”

According to “A Statistical Analysis of Trade Secret Litigation in Federal Courts,” that was recently published in the Gonzaga Law Reform, the number of trade secret cases has grown “exponentially” in recent years. “Most alleged misappropriators are someone the trade secret owner knows,” the authors write. “Specifically, in over 85 percent of cases, the alleged misappropriator was either an employee or business partner.”

Cases of employee-related data theft more than doubled between 2006 and 2008, according to a study conducted by accounting and consulting firm KPMG. Based on its findings, the firm concluded that the number of such incidents is “almost certain” to increase further, especially in a difficult economic environment.

For more:  http://www.hreonline.com/HRE/story.jsp?storyId=475264808

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July 3, 2010 · 5:36 am

Hotel Industry Liability Risks: Is Criminal Danger And Liability Posed By Employing And Housing “Convicted Sex Offenders” At Hotels?

When you check into a hotel, you’d never expect they would have a registered sex offender working behing the front desk and making your room key. But that’s just what our investigation found. Here’s Lisa Guererro’s report that raises troubling questions about whether sex offenders should be given jobs that allow them to interact with families and children.

Robert Mitchell worked the overnight shift at the Holiday Inn in Fort Worth, Texas. So you might be surprised to learn this mild mannered desk clerk is a registered sex offender. In 1995, he pleaded guilty to molesting a 10-year-old girl.

And this from a Huntington Beach, CA hotel investigation:

Huntington Beach police said they had a specific reason for targeting the hotel. While residents can research sex offenders near their homes, visitors may be less apt to research offenders at a hotel where they are staying, said police spokesman Lt. Russell Reinhart.

 

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