Duff on Hospitality Law

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.

Garvey Schubert Barer’s Hospitality, Travel & Tourism practice group, in conjunction with program sponsors and presenters, recently hosted two morning Hospitality Forums in Seattle, Washington and Portland, Oregon. The forums were designed for hotel owners, developers, investors and operators as well as hospitality industry service providers, consultants and lenders. Both events were well attended—a testament to the sponsors and presenters who offered current data, insights and analysis into issues of importance to those in the hospitality industry. 

In particular, Matthew Gardner, of Gardner Economics, provided a macro-level discussion of current economic trends and then narrowed the focus to the Northwest. Matthew sees Seattle as having strong institutional underpinnings that will contribute to continued economic growth.  Within the Northwest, condominium projects are not being approved by banks. Apartment construction projects in Seattle are being approved but that segment may soon be over saturated. Matthew did not express concern with the limited amount of hospitality construction underway. A similar presentation by Tom Potiowsky, the PSU Chair of Economics and Director of the Northwest Institute for Applied Economic Research, led off things in Portland. Although not quite as bullish on the local economy as Matthew, Tom was confident that a recovery (although slow) was underway in Oregon, and more particularly, the greater Portland market. Copies of Matthew’s presentation and Tom’s presentation are attached. 

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 . . .

Our newest post comes from my Portland, Oregon colleague and partner, Joy Ellis. For those of you who have not met Joy, Joy serves as the Portland Chair of our Hospitality, Travel and Tourism Practice Group. She also has over 15 years of legal experience in the areas of commercial litigation, employment litigation and employment-related advice, and brings us important news on the latest chapter of ongoing litigation between online travel companies and the many jurisdictions that have sought to collect allegedly unpaid or underpaid lodging taxes. This latest installment involves our own City of Portland. Thank you Joy for this important update.

Across the country, online travel companies (“OTCs”) are involved in litigation with local officials over the tax on hotel rooms. City officials argue that online travel sites shortchange the cities on their local hotel taxes. The OTCs disagree.

Here’s the crux of the issue: let’s say a guest books a hotel room through an OTC’s website. The traveler booking the room pays an amount to the OTC, part of which goes to the hotel and part of which is kept by the OTC as a facilitation and service fee. The fee attributable to the hotel includes the often severely discounted ("net" or "merchant") room rate agreed upon between the OTC and the hotel, plus the hotel tax owed on that discounted rate. City officials want the hotel tax to be based on the entire ("retail") amount paid by the traveler to the OTC. The OTCs argue that local lodging tax on hotel rooms should be remitted based on the actual amount a hotel receives for a room rather than the total amount that a guest pays the OTC for a room.

Rooftop leasing to telecommunications companies can be an attractive way for a hotel owner or operator to increase revenues. Rents can range from $1,000 to $10,000 a month based on the strength of the location, and capital outlays for the owner are often minimal because the telecommunication company usually provides the necessary equipment. Ashok Kumar notes these and other benefits in his article, “Wireless is Going Through the Roof – Can Your Hotel Make Money on it?”

Before entering into a rooftop telecommunications lease, however, one should consider some of the traps and pitfalls that are often associated with telecommunications company lease forms. Below are a few tips for an owner or operator’s consideration when evaluating a rooftop lease.

Two major changes are on the horizon for Oregon diners and restaurateurs—one may affect diners’ waistlines while the other will force purveyors to fess up to potentially hazardous ingredients they serve.

Way back in 2009, Oregon’s Legislature passed the Menu Labeling Act, one of the country’s toughest menu labeling laws, requiring restaurants with 15 or more locations in the state to post the calorie count for every meal it serves. But before the laws could take effect, the federal government passed its own menu labeling law thereby preempting Oregon’s Menu Labeling Act. Section 4205 of the Affordable Care Act, signed into law in March 2010, set new federal requirements for nutrition labeling of foods sold at certain chain restaurants and similar retail food establishments. Until the federal law takes effect (the FDA is expected to finalize the rules summer 2012) — Oregon won’t know whether it has to revisit its own law or rule-making process. And diners won’t know just how many calories are in that bleu cheese bacon burger.

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.

Days 2 and 3 at this year's ALIS conference were filled with numerous highlights, including a very well attended presentation (or should I say, political commentary) in the Nokia Theater by "the Donald" himself, Mr. Donald Trump. Days 2 and 3 were also filled with hundreds of meetings by conference attendees in nearly every hallway and corner of the hosts JW Marriott and Ritz Carlton.

While optimism continued to be the theme most often heard in the meetings I attended, the optimism was far from unbridled. With so many unknowns remaining in the world (e.g. European debt crises, continued high unemployment, the upcoming presidential election), nearly everyone recognized that the many signs pointing to an industry rebound could quickly change.