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WHAT WE DO

HospitalityLawyer.com® converges legal, safety, and security solutions for the hotel, food and beverage, private club, meeting, event, and corporate travel industries.

We are a worldwide network of attorneys that focus on hospitality, travel and tourism issues; a marketing conduit for suppliers of legal, safety and security solutions to reach hospitality developers and operators in need of those solutions; we mitigate critical incidents, injuries, litigation and liability within the hospitality industry, in the U.S. and abroad by facilitating the creation, collection, and dissemination of legal, safety and security information, products and services.

WEEKLY SPOTLIGHT

Foley Cliff Risman
Attorney of the Week
Foley & Lardner

At Foley & Lardner, Cliff Risman is a veteran real estate lawyer who represents companies that develop, own, operate and finance hotels and resorts around the world. As co-chair of the firm’s Hospitality & Leisure Industry Team and a member of the Real Estate Practice, Cliff is described by clients in the Chambers USA Guide as “very practical and always accessible.” Clients choose Cliff over competitors because he speaks the language and fully understands every aspect of their business – from securing capital, structuring deals and negotiating management contracts, to guiding clients through labor, tax, food and beverage, and operational matters and disputes. Cliff represents luxury and boutique hotel and resort brands, operators and management companies, developers, private equity and other investors in their highest profile projects. He understands how to best tackle the various agreements that arise in real estate law, he knows the hospitality industry and its unique business and economic issues, and he has guided clients through many complex matters and dispute resolutions. Cliff ensures that clients are protected, focuses intently on their broader business goals, and knows how, where and when to push to get the deal done as quickly as possible.

Law Firm of the Week
Fisher Phillips

Whether it’s a class action involving thousands of potential class members, a jury trial with exposure in the millions, or a union organizing effort or strike that could cripple a company, employers with their choice of employment lawyers choose Fisher Phillips to handle their most difficult and dangerous cases. We Are Innovative, Nimble and Always Evolving. We continuously look for ways to work more efficiently and better serve our clients. Our leadership is able to make decisions quickly to direct the necessary resources to a particular challenge. We are able to propose alternative fee arrangements that make sense and we use our broad database of experience to improve our processes. We Are A Destination Law Firm of Choice for Labor and Employment Lawyers at the Top of Their Game. Many highly successful partners have chosen to bring their practices to our firm. They have been attracted by our entrepreneurial culture, our collegial atmosphere, the opportunity to practice with other excellent lawyers, and our transparent compensation system that rewards great client service.

Company of the Week
Deloitte

We believe that we’re only as good as the good we do. All the facts and figures that talk to our size and diversity and years of history, as notable and important as they may be, are secondary to the truest measure of Deloitte: The impact we make in the world. So, when people ask, “What’s different about Deloitte?” the answer resides in the many specific examples of where we have helped Deloitte member firm clients, our people, and sections of society to achieve remarkable goals, solve complex problems, or make meaningful progress. Deeper still, it’s in the beliefs, behaviors, and fundamental sense of purpose that underpin all that we do. With more than 150 years of hard work and commitment to making a real difference, our organization has grown in scale and diversity—approximately 245,000 people in 150 countries and territories, providing audit & assurance, tax, risk and financial advisory and consulting services—yet our shared culture remains the same. For us, good isn’t good enough. We aim to be the best at all that we do—to help clients realize their ambitions, to make a positive difference in society, and to maximize the success of our people. This drive fuels the commitment and humanity that run deep through our every action. That’s what makes us truly different at Deloitte. Not how big we are, where we are, nor what services we offer. What really defines us is our drive to make an impact that matters in the world.

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Subscribe to our CONVERGE Blog and Newsletter for valuable insights from hospitality and travel risk management experts. Our blog features exclusive content from our contributors, who collectively represent the full spectrum of hospitality law, risk management and comprehensive duty of care solutions.

The Latest from Converge...

Our CONVERGE BLOG focuses on legal, safety, and security challenges for Hospitality, Travel, Travel Vendors and Corporate Travel Buyers as individuals and businesses.
Our blog features exclusive content from our contributors, who collectively represent the full spectrum of hospitality law, risk management and comprehensive duty of care solutions.

Strategies to Defend & Mitigate Against Sex Trafficking Lawsuits in the Hospitality Industry

Federal and state laws define human trafficking as compelling someone through force, coercion or fraud to perform work or engage in sex acts. According to the Department of Homeland Security, it is a global issue with millions of adults and children being victimized to generate billions of dollars in profits for traffickers and others engaging in it.

There were 7,621 cases of human trafficking reported in the U.S. in 2016, the last year for which yearly totals are available. In the United States, human trafficking tends to occur around international travel-hubs with large immigrant populations, notably California, Texas, Florida, and Georgia. Illinois ranked 9th out of the 50 States with 296 reported cases of human trafficking during 2016.

The issue of human trafficking has gained national attention due to cases involving high profile individuals such as prominent investor Jeffrey Epstein and New England Patriots owner Robert Kraft.

Human trafficking is prevalent in the hospitality industry, particularly at hotels. Businesses in the hospitality industry are prime territory for sex traffickers, because they can take advantage of the privacy and anonymity offered to guests, according to the U.S. Department of Homeland Security. Hotels and motels are obvious examples, but sex trafficking also can occur at theme parks, cruise ships, resorts, and nightclubs. The Polaris Project has recorded 3,300 cases of sex trafficking in hotels over a ten-year period. For this reason, federal and state specific laws are law are being implemented, which are taking aim at curtailing sex trafficking in the hospitality industry.

Under the Trafficking Victims Protection Act (TVPA), hospitality business owners can be held civilly and criminally liable for allowing sex trafficking to occur on their property. The law allows the federal government or a survivor to bring a case against the trafficker, but also against any entity that financially benefited from his or her victimization and knew or should have known that the activity was a violation of human trafficking law. Notably, under federal law, buyers of sex are considered traffickers. Therefore, a hotel can be held liable to the victim if an employee rents a room to a trafficker or a buyer and the employee knew or should have known that the room would be used for a commercial sex act State laws, such as a newly passed law in Florida, also directly impact the hospitality industry. This new Florida law requires hotels and other lodging establishments to provide annual training on human trafficking awareness to housekeeping employees and those who work at a front desk or reception area where guests ordinarily check in or out.

A concerted effort must be made at your place of business to eliminate sexual trafficking and mitigate your company’s liability. The first step is to train your employee on identifying general indicators of sex trafficking which include:

  • Individuals show signs of fear, anxiety, tension, submission, and/or nervousness.
  • Individuals show signs of physical abuse, restraint, and/or confinement.
  • Individuals exhibit evidence of verbal threats, emotional abuse, and/or being treated in a demeaning way.
  • Individuals show signs of malnourishment, poor hygiene, fatigue, sleep deprivation, untreated illness, injuries, and/or unusual behavior.
  • Individuals lack freedom of movement or are constantly monitored.
  • Individuals avoid eye contact and interaction with others.
  • Individuals have no control over or possession of money or ID.
  • Individuals dress inappropriately for their age or have lower quality clothing compared to others in their party.
  • Individuals have few or no personal items—such as no luggage or other bags.
  • Individuals appear to be with a significantly older “boyfriend” or in the company of older males.
  • A group of girls appears to be traveling with an older female or male.
  • A group of males or females with identical tattoos in similar locations. This may indicate “branding” by a trafficker.

Your employee must also be trained on how to act when they suspect a situation of human trafficking. Employees are recommended to: 1) Do not at any time attempt to confront a suspected trafficker directly or alert a victim to your suspicions, (2) Call 9-1-1 for emergency situations—threats of violence, physical assault, emergency medical needs, etc. (3) Follow your corporate protocol, such as by notifying management and security. (4) Call 1-866-DHS-2-ICE (1-866-347-2423) to report suspicious criminal activity to federal law enforcement. Highly trained specialists take reports from both the public and law enforcement agencies. (5) Submit a tip at www.ice.gov/tips or get help from the National Human Trafficking Resource Center (NHTRC), call 1-888-373-7888 or text HELP or INFO to BeFree (233733).


This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

HospitalityLawyer.com® provides numerous resources to all sponsors and attendees of The Hospitality Law Conference: Series 2.0 (Houston and Washington D.C.). If you have attended one of our conferences in the last 12 months you can access our Travel Risk Library, Conference Materials Library, ADA Risk Library, Electronic Journal, Rooms Chronicle and more, by creating an account. Our libraries are filled with white papers and presentations by industry leaders, hotel and restaurant experts, and hotel and restaurant lawyers. Click here to create an account or, if you already have an account, click here to login.

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Reptile Theory: Using the Primitive Brain to Increase Plaintiff’s Verdicts

Jane Doe was the victim of a sexual assault while a guest at Marrilton Garden Inn & Courtyard Suites. She has filed a multi-million-dollar suit against Heavenly Hospitality Management, LLC d/b/a Marrilton Garden Inn & Courtyard Suites, Marrilton, Inc., (several subsidiaries of Marrilton, Inc.) and Gwen Causey (hotel manager).

Scenario: Jane Doe, a guest, checks into the hotel and is sexually assaulted by John Thug, a fellow guest. Through discovery, it is revealed that, due to a series of mishaps and internal breakdowns, staff inadvertently allowed J. Thug to discover the room number of Doe and gain access while Doe was asleep.

During check-in and while preparing Ms. Doe’s electronic key, the front desk clerk loudly announced the room number.Shortly after Ms. Doe checked in, and after hearing the clerk reveal her room number, J. Thug approached the same front desk clerk, and having no reservation, requested the room adjoining Doe’s room.

After checking into his room, Thug waited until he heard Doe leave her room. As he exited his room, he noticed a housekeeping cart was located at the end of the hall. He approached the housekeeper who was cleaning a room, indicated he just departed his room and forgot to take his key. The second mistake occurred when the housekeeper improperly granted Thug access to Doe’s room where he proceeded to disengage the lock on the door adjoining his room.

Before leaving Ms. Doe’s room, J. Thug noticed an open water bottle and spiked it with Rohypnol. After exiting Doe’s room, J. Thug patiently waited until she returned and believed her to be incapacitated. He then spent the next several hours repeatedly sexually assaulting her.

Jane Doe filed a negligence action against the hotel and has made a demand for $25,000,000 in compensatory damages and $100,000,000 in punitive damages.

Witnesses who were deposed:

  1. Front desk clerk: utilizing the Reptile Theory, Doe’s attorney had this witness admit she had received no safety training, was not familiar with the hotel’s policies and procedures, and as a result, failed to avoid needlessly endangering Doe.
  2. General Manager /named Defendant: Doe’s attorney skillfully utilized the Reptile Theory to have the Manager admit she failed to provide a safe premises for her guests.
  3. Franchisee: his deposition was taken for the purpose of establishing the duty owed to the public in general and Doe in particular.
  4. Disgruntled former employer/housekeeper: Her testimony, along with four other disgruntled former employees, was taken for the purpose of showing corporate was on notice of the safety issues and lack of appropriate training of key staff.

What is the Reptile Theory?

We like to believe we are run by logic and emotion. Sometimes we are. But when something we do or don’t do can affect – even a little – our safety or the propagation and safety of our genes, the Reptile takes over. If your cognitive or emotional brain resists, the Reptile turns it to her will. The greater the perceived danger to you or your offspring, the more firmly the Reptile controls you. From Reptile, Chapter 1, The Science.

Major axiom: When the Reptile sees a survival danger, she protects her genes by impelling the juror to protect himself and the community.

Manipulation at its best: as demonstrated in the deposition clips, witnesses who are unprepared, disinterested, or both, can be utilized by the Plaintiff’s attorneys to make all sorts of inflammatory admissions:

  • Yes we needlessly endangered our guests;
  • Yes our conduct was egregious;
  • Yes our behavior shocks the conscience;
  • Yes we violated our safety rules;
  • Yes corporate was recklessly indifferent to the safety of our guest.

Faced with the above admissions, the Reptile asks jurors the following:

  1. How likely was it that the act or omission would hurt someone? Highly likely according to the Defendant’s own employees.
  2. How much harm could it have caused? See Doe’s medical and psychiatric records.
  3. How much harm could it cause in other kinds of situations? This question appeals to the community (i.e. send a message that this type of behavior is unacceptable).

In a nutshell, the Reptile Theory is a way to inject punitive type testimony into the compensatory phase of the trial.


This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

HospitalityLawyer.com® provides numerous resources to all sponsors and attendees of The Hospitality Law Conference: Series 2.0 (Houston and Washington D.C.). If you have attended one of our conferences in the last 12 months you can access our Travel Risk Library, Conference Materials Library, ADA Risk Library, Electronic Journal, Rooms Chronicle and more, by creating an account. Our libraries are filled with white papers and presentations by industry leaders, hotel and restaurant experts, and hotel and restaurant lawyers. Click here to create an account or, if you already have an account, click here to login.

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Company Hotline & Incident Management Benchmarking: How Does Your Program Compare?

Encouragement of internal misconduct reporting is on the rise for public and private businesses and organizations of all sizes, and whistleblower protection laws across the globe are being strengthened. See how employees are voicing their concerns today and what companies are doing to address them.

Reporting Channels

According to the Association of Certified Fraud Examiners 2018 Report to the Nation on Occupational Fraud and Abuse, less than half of organizations in the foodservice and hospitality industries had any sort of hotline established. Most of those businesses that currently provide a hotline are public companies which, by law, must offer an anonymous reporting channel to comply with Sarbanes Oxley regulations. Considering 90% of restaurants and 61% of hotels are small businesses, there is a significant lack of internal misconduct reporting options in the industry. However, reports made directly to state and federal agencies by hospitality workers are increasing and have placed the hospitality industry front and center of the media focus on workers rights and movements such as #MeToo.

2019 Benchmarks

Recent benchmarking statistics and a study from George Washington University1 demonstrate that “more active use of internal whistleblower systems is associated with fewer and smaller amounts of government fines and material lawsuits filed against the organization.”

Summary

In 2018 and 2019, there has been an increase in the number of reports alleging unethical or illegal conduct submitted by employees. This increase has been seen not through telephone hotlines, but other channels such as web, email, and open-door discussions.

Human Resources-related topics continue to be the majority of issues reported. Substantiation rates have increased, regardless of whether the reporter is named or anonymous. Retaliation claims continue to rise, with reports made primarily outside of the organization, rather than internally.


This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

HospitalityLawyer.com® provides numerous resources to all sponsors and attendees of The Hospitality Law Conference: Series 2.0 (Houston and Washington D.C.). If you have attended one of our conferences in the last 12 months you can access our Travel Risk Library, Conference Materials Library, ADA Risk Library, Electronic Journal, Rooms Chronicle and more, by creating an account. Our libraries are filled with white papers and presentations by industry leaders, hotel and restaurant experts, and hotel and restaurant lawyers. Click here to create an account or, if you already have an account, click here to login.

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What Employee Accommodations are Required Under the ADA?

I. What are Your Responsibilities as an Employer?
The federal American with Disabilities Act (“ADA”) and many similar state laws require employers to “reasonably” accommodate an otherwise qualified disabled applicant or employee to perform the essential job functions of the position or enjoy equal benefits of employment as similarly situated employees. Similarly, other federal and state civil rights statutes prohibiting discrimination based on gender, religion, and race require an employer to accommodate an employee’s reasonable request for schedule changes, dress, and grooming practices due to religious beliefs or gender identity. The law also requires employers to reasonably accommodate pregnant employees. The issue of whether the employer must accommodate gender non-conforming or non-binary employees has not yet been fully resolved by the trend is to required such accommodations.

II. What are Your Responsibilities as an Employer?
The law does not require that you meet the specific demands of the employee, only that you make “reasonable” accommodation when called to do so. We will explore numerous examples from various courts and the EEOC of what constitutes a “reasonable” accommodation under various circumstances. However, the trend is clear that courts will require employers to at least attempt to accommodate objectively reasonable requests that do not endanger coworkers or severely impact business operations. We will also explore some of the unfortunate extremes to which some cases have ventured when requiring accommodation.

The law does not require that you meet the specific demands of the employee, only that you make a “reasonable” accommodation when called to do so. We will explore numerous examples from various courts and the EEOC of what constitutes a “reasonable” accommodation under various circumstances. However, the trend is clear that courts will require employers to at least attempt to accommodate objectively reasonable requests that do not endanger coworkers or severely impact business operations. We will also explore some of the unfortunate extremes to which some cases have ventured when requiring an accommodation.

III. What Are Your Rights as an Employer?
The courts and the EEOC have recognized various legitimate limitations on an employee’s right to demand workplace accommodations. We will explore a few well-recognized legal exceptions to the accommodation requirement including safety concerns and undue hardship to the employer. We will also provide some of the “go-to” defenses when an employee makes objectively unreasonable accommodation requests.

IV. Striking a Balance between Your Rights and Responsibilities in a Politically Correct World
Social and news media often shape the public’s view of the world—and of employers. Often, employers feel the pressure to make accommodations to demanding employees when not legally required to do so. What are the ramifications of making such accommodations? If you give the employee an inch will he take a mile? We will explore the practical and legal effects of both enforcing your rights and the failure to take a consistent stand on certain demands for accommodation.


Authors

Barry Montgomery – Partner, KPM Law
Barry, a partner with KPM LAW, began his career in litigation before he graduated law school by working as an intern at the United States Attorney’s office where he had the opportunity to prosecute federal criminal cases. In his first case, Barry successfully prosecuted a business owner for manufacturing counterfeit currency and bank checks. It was at this point that he decided that he would spend his career in commercial litigation. Barry then began representing insurance companies in fraud and coverage cases as well as personal injury defense.

While Barry still represents insurers and their insureds in commercial litigation, he now focuses his practice on labor and employment law and litigation, as well as professional liability litigation. Barry believes that labor is the force that drives our economy and that an organization’s greatest resource is its employees. Barry believes that management and professional decisions can be vigorously defended in and out of court without compromising an organization’s brand or relationship with its workforce.

Brian A. Cafritz – Partner, KPM Law
Brian has been an invaluable member of the KPM LAW team since 1994, his commitment having helped solidify and expand the foundation of KPM LAW’s regional defense network. Brian primarily focuses his practice on the defense of Fortune 500 companies that operate under large self-insured retentions. With bar licenses in four jurisdictions, he has built a dedicated team and developed an efficient system that allows him to aggressively defend all matters in a regional practice that covers the entire mid-Atlantic region.

As Brian’s practice became more focused on Retail and Restaurant litigation, it became evident to him that the Plaintiff’s bar was more organized in sharing its resources, and so in 2006 – 2007, Brian co-founded the National Retail and Restaurant Defense Association (NRRDA) to promote the education and communication channels of industry leaders and counsel. Brian was elected to serve two terms as the association’s first president. Under Brian’s leadership, NRRDA continued to grow. Today, NRRDA boasts over 600 members and is seen as a leader in the Retail and Restaurant sector.


This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

HospitalityLawyer.com® provides numerous resources to all sponsors and attendees of The Hospitality Law Conference: Series 2.0 (Houston and Washington D.C.). If you have attended one of our conferences in the last 12 months you can access our Travel Risk Library, Conference Materials Library, ADA Risk Library, Electronic Journal, Rooms Chronicle and more, by creating an account. Our libraries are filled with white papers and presentations by industry leaders, hotel and restaurant experts, and hotel and restaurant lawyers. Click here to create an account or, if you already have an account, click here to login.

Read more

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