Duff on Hospitality Law

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

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

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

If you are anything like me, you have been eagerly awaiting another update from the NLRB on its social media decisions. Well, wait no longer. On May 30, the NLRB’s Acting General Counsel issued a third report on recent social media cases. This complements the two previous reports from January 12, 2012, and August 18, 2011. For more information on the first two reports, see my recent post.

The new report does not offer any groundbreaking new principles for employers seeking to implement or enforce social media policies. This is good news, as it means that you don’t need to rewrite your social media policy every time the NLRB issues a report. This report does elaborate on a few of the key principles, however, and it offers some new and interesting examples. It also includes as an example an entire social media policy that was found lawful.

A recent Field Assistance Bulletin issued by the U.S. Department of Labor (DOL) on February 29, 2012, announced a substantial change of the DOL’s enforcement position regarding mandatory tip pooling with back-of-the-house employees. 

As we have discussed in this blog previously tip pooling is the practice by which the tips of regularly tipped employees are pooled together and then redistributed among employees, including, on occasion, employees who do not customarily receive tips. Employees may voluntarily participate, or they can be required to participate by the employer.

In 2010, the U.S. Court of Appeals for the Ninth Circuit issued a decision, Cumbie v. Woody Woo, Inc. (596 F.3d 577 (9th Cir. 2010), which held that DOL limitations on an employer's use of the employee's tips did not apply when the employer does not take a tip credit. In states like Oregon and Washington, where the employer must pay a tipped employee the full minimum wage and is prohibited by state law from taking a tip credit, the employer is permitted to impose a mandatory tip-pooling arrangement and insist that tipped employees share their tips with back-of-the-house employees, not just with employees who customarily receive tips. The court's ruling was a significant win for employers in the Ninth Circuit; the employer was represented by Garvey Schubert Barer, amicus briefs were filed by Oregon Restaurant and Lodging Association and others, and the DOL even submitted a brief and argued part of the case for the employee -- and lost.   

In Mike Brunet’s April 16, 2012 post, he discussed the history and potential future of the Department of Justice’s (DOJ) controversial requirement that hoteliers install permanent lifts at all swimming pools to comply with the Americans with Disabilities Act (ADA). Today, he writes about a recent extension on the deadline to satisfy DOJ’s mandate. 

As of May 16, hotel owners and others operating swimming pools open to the public had a mere five days, until May 21, to install permanent pool lifts at their facilities pursuant to the DOJ’s interpretation of the 2010 Standards to the Americans with Disabilities Act. However, on May 17, the DOJ extended the deadline for compliance with its requirement by over eight months, to January 31, 2013. The fact that DOJ extended the deadline is not a total surprise, as the agency has been accepting comments on a possible six-month extension since March of this year, and interested parties, including hoteliers and trade associations, have been vocal in their support. However, the length of the extension is somewhat of a surprise, especially given DOJ’s hard-line stance on this issue in the past.

In a previous employment law update, Hospitality, Travel & Tourism practice group member, Diana Shukis, summarized the much discussed National Labor Relation Board's (NLRB) new notice posting rule. Diana provides below a brief update on the deadline for complying with the rule and her thoughts on where things go from here.

Recent court decisions have delayed the April 30, 2012 deadline for complying with the NLRB's notice posting rule. Based on the court decisions, employers are not required to post the statement of employee rights at least for now.

In Mike Brunet’s January 2012 post, he shared a PowerPoint presentation concerning the 2010 Standards for Accessible Design, adherence to which became mandatory for places of public accommodation, such as hotels, on March 15, 2012. In this month’s post, Mike focuses on one of the most controversial elements of those 2010 Standards, pool accessibility, and brings you up to date on the current requirements.

Thank you Mike . . .

The 2010 Standards require that public accommodations provide at least one accessible means of entry to small swimming pools, which must either be a sloped entry or a pool lift. Larger swimming pools must have two accessible means of entry, one of which must be a sloped entry or a pool lift. After analyzing the cost and safety issues associated with methods of accessible entry, most hoteliers decided that a portable pool lift would be the safest and most cost-effective option. However, the 2010 Standards did not specifically address portable pool lifts or when or how those lifts would be put in place. 

This post looks at two recent National Labor Relations Board reports and their impact on employers' social media policies. Several planned upcoming posts will also be looking at social media and its effects on hoteliers's and restaurateurs' operations - stay tuned.

Thanks to the internet, a single disgruntled employee can now do dramatic damage to a company’s image through posts on social media sites. (Just ask Domino's Pizza or Hotel Renaissance). The social media policies employers have instituted in the last few years may work to inhibit online employer-bashing; however, they can also come perilously close to violating the law. To assist employers in navigating this rapidly changing area of law, the National Labor Relations Board (“NLRB”) has issued two social media reports in the last seven months, explaining their rulings in several recent social media cases. As this posting demonstrates, even if you think you have a good social media policy, you may want to revisit it, given the latest NLRB guidance.

Employees in both unionized and non-unionized workplaces have protected rights to certain types of speech under the National Labor Relations Act. These include, briefly, the right to discuss terms and conditions of employment and unfair labor practices with coworkers and the right to engage in concerted activity. Employers who want to restrict employees from making disparaging comments about the company online must carefully phrase their policies to avoid trampling on these rights.

As a follow up to his excellent presentations at the recent hospitality forums hosted by Garvey Schubert Barer’s Hospitality, Travel & Tourism practice group, Gregg Rodgers offered to prepare today’s post on the often discussed, but horribly misunderstood, EB-5 program. Gregg chairs GSB’s Immigration practice group and is an important member of, and regular contributor to, our Hospitality, Travel & Tourism Practice Group. Gregg has represented those investing funds into their own projects as individuals and into Regional Centers, and he has worked with many potential EB-5 project sponsors (those using investor's funds to finance projects), including new hotel development projects in the Northwest, as they have evaluated their options. Today’s post provides a great overview of the EB-5 program and its general requirements. 

Thank you Gregg . . .

As you have likely read in the past months, the National Labor Relations Board (the “Board”) recently adopted a new rule requiring almost all employers, including those with non-unionized workplaces, to post a Notice advising employees of certain rights provided to them under the National Labor Relations Act (the “Act”). There was considerable controversy surrounding the new rule, and several postponements of the deadline for compliance. The deadline was last extended from January 31 to April 30, 2012, and the April 30 deadline seems to be sticking. So, if you have put the requirement out of your mind given the postponements, it is time to remember them. Information to help you comply with the posting requirement, including downloadable versions of the required Notice can be found at the Board’s site. The Notice summarizes employees’ rights to negotiate the terms of their employment, form a union, engage in collective bargaining with their employer, strike and picket. Legal restrictions on certain actions by employers and unions are also listed, along with an explanation of the obligation to bargain in good faith when a union has been selected by employees.

What are the posting requirements?

• • The Notice may be downloaded from the Board’s website, but it must be printed to at least 11 inches x 17 inches in size.
  • The Notice must be posted in conspicuous places where notices to employees are normally posted. If employee rules and policies are customarily posted on a company’s intranet or internet site, the notice must also be posted there in full or by a link to the Board’s website where the full text of the notice is located.
  • Employers must take steps to ensure the notice is not altered, defaced, or covered with other materials.
  • If 20 percent of an employer’s workforce is not proficient in English, and those persons speak the same foreign language, the employer must also post the notice physically (and electronically, if applicable) in that language. The Board has provided downloadable copies of the Notice in several languages at the above-referenced website, with more to come.

This week’s post comes from Hospitality Team member Mike Brunet (Employment and Litigation), as a follow-up to his January 21, 2011 post on revisions to the public accommodations sections of the Americans with Disabilities Act. Mike recently presented on these revisions to the Seattle Hotel Association, and, in this post, shares his extensive presentation on the ADA revisions, applicable deadlines, and what you should get done before March 15.

In a blog post here almost a year ago, I provided an overview of the first significant revisions to the ADA regulations since 1991. At that time, I focused primarily on the new regulations that became effective in March 2011, related to communications accessibility, service animals, and mobility devices. Hopefully you were able to implement changes to your operations and policies to address those regulations; if not, then this blog post should serve as a reminder to do so as soon as possible.