Duff on Hospitality Law

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.

It has been reported that the producers of the conference this year were torn between an exclamation point and question mark in the program title. As you can see, the optimistic decision was made to include an exclamation point. As I explain below, I tend to agree with that decision.

Monday marked the opening of the 11th annual ALIS here in Los Angeles. This year's attendance of 2400 makes the 2012 conference the third largest in its 11 year history. From the many conversations I had throughout the day, the optimism expressed in pre-conference survey results was shared by many.

Room Key, a brand new player in the on-line hospitality market, launched in beta on January 11, 2012 to some excitement and some hard questions. Room Key is a joint venture among six U.S.-based hotel chains—Choice Hotels International, Hilton Worldwide, Hyatt Hotels*, InterContinental Hotels, Marriott International* and Wyndham Hotel Group—that allows users to search for available rooms at almost all of the chains’ global properties, or about 23,000 rooms total. More Kayak than Expedia, users search the Room Key site for inventory and are then redirected to the individual property (or chain’s) home site to complete booking. The idea is to drive traffic to the hotel websites and away from on-line travel agencies (OTAs) like Expedia, Priceline, and Travelocity. And, of course, to provide a customized, personable hotel booking experience to the user--and who better to do that then a group of hoteliers--says CEO John Davis.

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.

Understanding Basic Menu Health Warning Requirements in the State of Washington

Over the past several months, we’ve received a number of client inquiries regarding menu labeling requirements, specifically the warnings required under Washington’s Food Code. A companion piece on Oregon’s requirements will be posted soon. Enjoy.

From fine dining to family-style restaurants, menus set the tone and begin a dialog with their patrons about the variety of food and drink options offered by the dining establishment. They also serve as real estate for public safety and legal disclaimers intended to protect patrons from food borne illness--and restaurateurs from claims and lawsuits. Aside from Pacific Northwest Portlandia comic relief (a television show based in Portland whose first episode features diners inquiring about the quality of life of the chicken they are about to order), many actually read the fine print off menus: Where are those oysters from? How was that albacore caught? Are the tomatoes heirloom?

As many of you will recall, I dedicated two posts earlier this year to tip pooling and Oregon and Washington restaurant owners' ability to share tips with traditionally non-tipped employees - Tip Pooling in Oregon and Washington, Tip Pooling - UPDATE. With the amount of attention that tip pooling continues to receive, I thought it time to enlist my Portland, Oregon partner, Eric A. Lindenauer, the lawyer who actually represented the Portland restaurant owner in the seminal Cumbie v. Woody Woo, Inc. decision, to provide a brief summary of the Woody Woo decision and recent developments in the ongoing tip pooling saga.

Thank you Eric for updating all of us.

The extent to which an employer can require employees to share tips with non-tipped employees remains a hot topic, especially in the federal Ninth Circuit, which encompasses Alaska, Washington, Montana, Idaho, Oregon, Nevada, California, Arizona and Hawaii.

Under the Fair Labor Standards Act (“FLSA”) where an employer claims “tip credit” toward the federal minimum wage, the employer may only require that employees pool tips with other employees who “customarily and regularly receive tips.” Assuming an employee is informed of the intent to take tip credit and other requirements are met, an employer can use an employee’s tips to offset all but $2.13 of the federal minimum wage.

We’re back . . .  With the incredibly busy and challenging past four weeks behind us, it gives me great pleasure to announce that Diana Shukis, Michael Brunet, Ruth Walters and I have joined the team of attorneys at the law firm of Garvey Schubert Barer. Effective November 1, 2011, our hospitality team joined Garvey Schubert Barer to launch Garvey Schubert Barer’s new Hospitality, Travel and Tourism practice.

Washington hotel owners, operators and suppliers enjoyed two days of learning, socializing and recognizing their colleagues' successes at the recent Washington Lodging Association's 2011 Annual Conference at the incredible Tulalip Resort and Spa. This year's Conference featured a variety of presentations on workforce challenges, recent changes to the ADA, revenue management, fraud prevention and social media. 

Just two weeks ago over 300 restaurateurs, hoteliers and industry suppliers came together in Bend, Oregon, for the 2011 Oregon Restaurant and Lodging Association Annual Conference. I had the chance to attend this year's Conference and to present during Sunday's opening sessions.