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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

Attorney of the Week
GrayRobinson

Elizabeth DeConti has spent more than 20 years focusing her law practice on the unique area of alcohol beverage and food regulation. She is a shareholder in the Tampa office and is one of the original members of the firm’s Alcohol Beverage and Food Team. Prior to joining GrayRobinson, she was a partner with the Tampa office of Holland & Knight and a judicial clerk for the Honorable Antoinette L. Dupont, chief judge of the Connecticut Appellate Court. She earned her bachelor’s cum laude and with distinction in Renaissance Studies from Yale University in 1993 and then received her juris doctor cum laude in 1996 from the University of Miami School of Law, where she was a Harvey T. Reid Scholar. Elizabeth concentrates on litigation, compliance, and promotions matters related to the rules, regulations and business practices governing the marketing, sale and consumption of malt beverages, wine, distilled spirits and other regulated products in the alcohol and food industry. She represents major alcohol suppliers, wholesaler retailers, marketing companies, and other members of the hospitality industry.

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Law Firm of the Week
Foster Garvey

Diversity, equity and inclusion are core values at Foster Garvey that are integrated into the firm’s culture and the way we do business. Through these core values we enhance our ability to provide clients with innovative, creative and collaborative advocacy, as well as creating a vibrant Foster Garvey team. We are committed to recruiting and mentoring diverse attorneys and staff, maintaining an inclusive environment in which our talented workforce may thrive and increasing diversity representation in all aspects of our firm, including firm leadership. Foster Garvey’s goal is a workplace reflective of the communities we serve. We firmly believe that commitment to the principles of diversity, equity and inclusion involves more than statistics. The firm’s commitment is exemplified by our ongoing efforts to continually improve diversity, equity and inclusion in every aspect of our workplace. Our diverse attorneys and staff are active in firm leadership, holding positions as Practice Group Leaders, managing directors of our offices, chairs of committees and members of the firm’s Executive Committee and Practice Management Committee.

Company of the Week
Ethics Suite

Ethics Suite was created because there is a better way to manage misconduct reporting between employer and employee. With nearly three decades of experience investigating whistleblower and misconduct-related investigations, Juliette Gust and Tricia Fratto developed the first incident reporting system developed to be fully customizable for every industry. When a company offers an incident reporting system, it empowers employees to report fraud, theft, embezzlement, and unethical behavior without fearing retaliation. Since inception, Ethics Suite helps businesses across dozens of industries form a trusted line of communication between management and their employees. Ethics Suites’ goal is to provide companies with the tools and know-how to take charge of their organization’s commitment to an ethical business environment. Using the Ethics Suite incident reporting system, businesses monitor workplace behavior and make changes before issues become costly or public. When you protect your employees and put your business first, your company flourishes.

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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.

Understanding and Complying with Transgender/Gender Identity Issues for the Hospitality Workplace

In a highly publicized dispute, the Supreme Court will [heard] arguments this fall from advocates and opponents to ultimately determine whether federal law, in particular Title VII of the Civil Rights Act, protects transgender employees from discrimination based on their gender identity.1 Along with two other cases concerning the LGBTQ community, the Supreme Court will decide whether the owner of a funeral home violated the law when he fired a former funeral home employee, who informed her employer in 2013 that she struggled with a “gender identity disorder” and announced that she was a transgender woman and that she planned to start working in women’s clothing as opposed to the company’s male dress code of a suit and tie.2

The Supreme Court’s eventual decision will likely impact the employment rights of approximately 1.4 million individuals who identify as transgender in the United States.3 In a recent survey, transgender individuals reported several adverse consequences in their workplace, or in attempts to gain employment, as a result of their gender identity or gender expression, including:

  • 27% of the respondents who were employed or applied for a job in the previous year reported being fired, denied a promotion, or not being hired for a job for which they applied;
  • 15% of respondents who were employed were verbally harassed, physically attacked, and/or sexually assaulted; and
  • More than three-quarters (77%) of respondents took steps to avoid mistreatment in the workplace, including hiding or delaying their transition or reassigning from their employers. 4

Regardless of the Supreme Court’s ruling on whether Title VII protects transgender employees, the trend among many agencies and states is to provide protections for the transgender community. For instance, OSHA expressly states that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” 5 Citing its sanitation standard, OSHA requires employers “to allow employees prompt access to sanitary facilities”, which includes not placing “unreasonable restrictions on employee use of toilet facilities.”6 This means that employers must do more than provide a unisex bathroom for transgender employees.7

Three years ago, the issue of transgender rights with respect to bathrooms was front and center in North Carolina. Known as the bathroom bill, H.B. 2 required transgender people in government and public buildings to use bathrooms, changing rooms, and showers that corresponded with the gender on their birth certificate.8 A public outcry resulted from the passage of this bill, causing businesses and sporting events to avoid the state and litigation followed. Ultimately, a federal judge in North Carolina approved a settlement in July 2019 that prohibits the state government from banning transgender people from using bathrooms in state buildings that match their gender identity.9 Some states, like California, Oregon, and most recently New York, among others, have passed legislation protecting the rights of transgender individuals to use the bathroom associated with the gender for which they identify.10

In addition to public accommodation, there has been a public push by more than 20 states, as well as the District of Columbia, to institute protections for transgender employees with regard to their employment.11 The EEOC also has taken an aggressive approach to protecting the rights of transgender employees. First, the EEOC adopted its current Strategic Enforcement Plan (SEP) in December of 2012, which includes as a top EEOC enforcement priority “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply”.12 In furtherance of this initiative, the Commission’s General Counsel formed an LGBT working group to provide advice and input to Agency litigators on developing litigation-related vehicles.13 Agency litigators have filed lawsuits, as well as amicus curiae briefs, in a number of courts addressing an array of LGBT discrimination-related issues.14

Connecticut, Delaware, Washington D.C., and New York’s employment non-discrimination laws have been amended to provide coverage for sexual orientation and gender identity.


  1. Adam Liptak, Supreme Court to Decide Whether Landmark Civil Rights Law Applies to Gay and Transgender Workers. The New York Times. https://www.nytimes.com/2019/04/22/us/politics/supreme-court-gay-transgender-employees.html (April 22, 2019).
  2. E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); cert. granted, 139 S.Ct. 1599 (Mem) (2019) (Supreme Court will determine whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender and (2) sex stereotyping).
  3. Flores, A.R., Herman, J.L., Gates, G.J. & Brown, T.N.T. (2016) How Many Adults Identify as Transgender in the United States? Los Angeles, CA: The Williams Institute.
  4. James, S.E., Herman, J.L., Rankin, S, Keisling, M., Mottet, L. & Anafi, M. (2016). Executive Summary of the Report of the 2015 U.S. Transgender Survey. Washington, D.C.: National Center for Transgender Equality.
  5. Best Practices. A Guide to Restroom Access for Transgender Workers. (2015) OSHA. https://www.osha.gov › Publications › OSHA3795.
  6. Id., (citing OSHA 1910.141).
  7. Id.
  8. North Carolina ‘bathroom bill’ settlement approved. https://www.reuters.com/article/us-north-carolina-lgbt/northcarolina-bathroom-bill-settlement-approved-idUSKCN1UI2IJ
  9. Id.
  10. See Cal. Civ. Code § 51(b); Or. Rev. Stat. § 659A.403; and NY Exec App § 466.13.
  11. https://www.hrc.org/state-maps/employment
  12. Fact Sheet: Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination. (last updated 7-8-16) https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm
  13. Id.
  14. Id.

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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Co-Working Spaces: Mitigating Litigation Risks While Encouraging Innovation

Co-working spaces are quickly becoming the Uber equivalent to office space rentals for remote-work professionals. On Monday morning, log onto an app and reserve a cubicle space down the street at a price much cheaper than a short-term office lease. On Tuesday, welcome a new client into a reserved conference room at a different co-working space with modern décor in the lobby and a Keurig coffee maker in the kitchen. 

In an age when flexibility, options, and instant reservations are becoming an expectation, co-working spaces continue to attract freelancers, entrepreneurs, and, more recently, companies with remote workers or those in need of temporary work spaces. In 2017, there were approximately 542,000 people working in co-working spaces in the United States. This number is expected to increase to approximately 1.08 million people by 2022.

While this growing industry encourages innovation and collaboration, owners and operators of co-working spaces, and companies taking advantage of these flexible workspaces, are presented with some unique legal issues. The community aspects of co-working spaces are often similar to that of an office, with individuals working in close proximity to one another and often sharing resources. However, most of the individuals working in the space are not employees of the owner or operator of the space. As a result, owners and operators have less control over their actions. Also, businesses utilizing co-working spaces for remote employees or as temporary space may not routinely have management-level personnel available to supervise their employees in person.

As the co-working industry continues to grow and evolve, so too does the law in this area. Understanding the legal risks and proactively implementing workspace policies and practices to address those risks will help ensure a respectful and safe working environment and reduce the risk of costly litigation.

Some Of The Risks

The combination of the anonymity of users of the space, the absence of policies governing conduct, and the availability of alcoholic beverages at many locations can be a recipe for bad behavior. That behavior often comes in the form of sexual harassment, but may also include theft and other unwanted behavior.

Owners and operators of co-working spaces have an obligation to protect their own employees from unlawful harassment by users of the space. Users of the space may demand that owners and operators of the space take action against those working in the space accused of harassment. Moreover, shared spaces often offer free-flowing alcoholic beverages as a perk to their users, which can increase the chances of a harassment incident and increase the likelihood of an alcohol-related accident. 

Additionally, while there is a trusting, collaborative spirit to the co-working paradigm, there is also an increased risk of theft or misuse of confidential or proprietary information. Finally, owners or operators of co-working spaces should also be cognizant of the fact that they may also be considered a place of public accommodation under federal and state disability statutes and, as such, have accessibility obligations.

Set The Ground Rules

One of the most effective ways for an owner or operator of a co-working space, or a business utilizing a co-working space, to limit risk is to set the ground rules for workspace etiquette from the beginning. Owners and operators should have clear, written, anti-discrimination and anti-harassment policies applicable to employees and users of the space alike. They should consider including these policies as terms and conditions of the user or member contract itself thereby contractually obligating users to comply with the rules. Businesses utilizing co-working spaces should make clear to employees that company policies around equal employment, anti-discrimination, anti-harassment and alcohol consumption are equally applicable to employees working at remote locations. 

Operators of co-working spaces should also adopt policies and procedures for how complaints or concerns of harassment or discrimination by employees and users will be addressed. This includes provisions addressing to whom such complaints should be made, the process for investigating the complaints, and how policy violations will be handled.

You should also establish ground rules to prevent the unauthorized access, or attempted unauthorized access, of confidential information, accounts, computer systems, and networks a user may come into contact with while working in the space. The rules should also prohibit the use or disclosure of a third party’s confidential or proprietary information. Again, the best practice would be to include these ground rules in the user contract itself. 

Businesses with remote workers using co-working spaces should ensure that its existing policies and procedures for safeguarding confidential and proprietary information are sufficient to address the unique co-working environment. If not, you should adopt new ones for employees working in this type of shared environment. A visit to the space, or virtual tour of the space, is highly recommended while developing these policies. 

Co-working agreements should make clear that a violation of the co-working space’s code of conduct and policies may result in warnings, fines, or immediate termination of the agreement with no refund for any up-front payments. An obligation should be placed on users and their employers to notify all guests entering the space on their behalf of the expectation to comply with the co-working space’s policies. 

Owners and operators of co-working spaces should also consider incorporating broad indemnification obligations for users of the space, including the payment of attorneys’ fees and costs, as a deterrent to bad behavior. Many co-working spaces also require users to have their own liability insurance for personal injury and property damage and encourage the purchase of cybersecurity liability insurance for increased protection.

Increase Surveillance And Security

Another way to ward off bad behavior is through the installation of legally compliant cameras. Security cameras can assist in navigating conflicts between tenants, inform investigations into alleged bad behavior, and minimize security concerns for all. If you go this route, you will want to work with counsel to ensure you stay on the right side of any applicable privacy laws in your jurisdiction.

Another tip: some co-working businesses require two-factor authentication before a user may access their Wi-Fi network. Others insist upon individualized private Wi-Fi use to avoid issues with unauthorized access to devices and data. 

Requiring tenants to sign a security policy or incorporating a security policy into the user contract can also go a long way towards protecting owners and users alike. Such a policy should include what hours are associated with the rental of the space and what categories of guests are permitted to visit the premises and during what hours. 

One of the attractions of a co-working space is the convenience of trusting that one’s belongings are safe while using the restroom or grabbing a cup of coffee. With a large group of individuals all working on different, often innovative, and highly confidential topics in close proximity with one another, owners and operators should be sensitive to ways in which you can promote the protection of confidential information and workers’ belongings. 

Know Your Public Accommodation Obligations

A number of owners and operators have recently faced lawsuits against owners for allegedly failing to comply with public accommodation laws. In Olsen v. WeWork Companies, Inc., for example, an aggrieved individual filed a federal class-action complaint under the Americans with Disabilities Act, New York State Human Rights Law, and New York City Human Rights Law. On behalf of himself and others similarly situated, the plaintiff claims WeWork failed to “construct, maintain and operate its website” in a manner that was accessible to and “independently usable” by him and other visually-impaired people. He identified at least 10 specific examples of how the website limited his ability to review and access WeWork’s offerings.

Similarly, the plaintiff in Kiler v. Bklyn Commons, LLC filed a similar class action complaint against Bklyn Commons, a co-working space in Brooklyn, New York. The lawsuit highlighted the website’s lack of alt-text equivalents to explain concepts presented by graphics on the web screen, lack of accommodations for blind customers to fill out online forms, and a blind user’s inability to access drop down menus, image maps, and the website’s shopping cart to complete transactions.

These class action lawsuits highlight a significant litigation risk for owners and operators of co-working spaces. Owners and operators should assess their online websites and apps and confirm that individuals with disabilities can access and take advantage of their offerings. 

Conclusion

Should a co-working space invest in storage lockers and device charging stations? Offer free coffee and pastries or beer and wine in the kitchen? With each unique amenity, co-working spaces try to distinguish themselves from the increasing number of competitors entering the market. As these innovative work spaces continue to push the boundaries on what a “typical” work environment entails, businesses and their counsel need to be creative in tailoring contractual protections and policies to ensure a respectful and safe environment for users and to mitigate the risk of costly litigation. 


Authors

Cheryl Pinarchick, Partner ( CPinarchick@fisherphillips.com / 617.532.8215)
Cheryl Pinarchick is a partner in the firm’s Boston office and a founding Co-Chair of the Pay Equity Practice Group. She represents employers in all areas of employment law.

Cheryl has extensive trial experience in state and federal courts throughout the United States. She has successfully defended employment lawsuits alleging wrongful termination, employment discrimination, sexual and other forms of harassment, wage and hour violations, retaliation and other related claims. She has also successfully prosecuted trade secret and non-competition agreements in numerous jurisdictions.

Cheryl counsels employers on compliance with the law in areas such as pay equity, employment discrimination, wrongful termination, reductions in force, FMLA and leave laws, sexual harassment, and wage & hour matters, including issues related to employee classification. Cheryl also assists employers in their liability prevention efforts by conducting employee training, preparing handbooks and implementing policies, as well as conducting wage and hour and pay equity audits.

Jennifer Scully, Associate (JScully@fisherphillips.com / 617.532.9322)
Jennifer Scully is an associate in Fisher Phillips’ Boston office where she represents employers in litigation matters related to wage and hour laws, misclassification, leaves of absence, discrimination, harassment and wrongful discharge. Additionally, she assists clients with internal investigations, audits and employee training. Jennifer regularly advises clients on federal and state employment law, employment agreements, separation agreements, terminations, handbooks and policies.

Jennifer previously served as an Assistant Attorney General in Massachusetts in the Fair Labor Division where she enforced wage and hour, child labor and earned sick time laws in civil and criminal matters. She uses her experience in the Attorney General’s office to advise employers on best practices and proactive strategies for compliance.

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How Corporate Travelers Can Combat Child Exploitation

More than 40 million people around the world are trapped in modern-day slavery, and a quarter of them are children. BCD Travel, in partnership with international advocacy group ECPAT, has released a video to raise awareness among business travelers about warning signs of child enslavement or sexual exploitation. The message: Don’t look away.

Don't Look Away
If you see signs of child exploitation while traveling, don’t look away. Here’s how to report it.

As a leader in the global business travel industry, BCD has a unique opportunity to make a difference. Traffickers often use air travel to transport victims and use hotels as places to abuse them. BCD uses its reach to raise awareness among companies, suppliers and business travelers, including by:

  • Educating its own employees about how to spot and report signs of child exploitation
  • Encouraging clients to sign on to ECPAT and engage their frequent travelers in the effort to recognize and report these crimes
  • Collaborating with corporate travel suppliers and other TMCs on opportunities to help put an end to the trafficking of children

Want to learn more? Watch Passport to Freedom, an in-depth video from Sabre on how to recognize and report human trafficking. And listen to The Company Dime’s 10-minute interview with ECPAT’s Michelle Guelbart on what you can do to help.

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Wildfire Severity Factors and Risk Mitigation Tips

A wildfire is considered any unwanted or unplanned fire burning in forest, shrub, or grass. Wildfires are one of the most destructive natural disasters that exist and occur year-round all over the world. Some of the most common areas susceptible to wildfires are as follows:

  • Western US: August – December
  • Southeastern US: October – December
  • Western Canada: April – September
  • Southeastern Australia: December – March
  • Northern Australia: April – September
  • Russia: May – October
  • South America (Amazon rainforest and the Cerrado): May – September

Although they can be caused naturally due to lightning strikes, the majority of wildfires – estimated to be around 90 percent – are caused by humans. Examples of these human-caused wildfires include unattended campfires, sparks from vehicles or equipment, or arson.

Wildfire Severity Factors

Changes in climate will likely alter wildfire frequency and severity in the future. Climate models predict longer periods of drought and higher temperatures, which would increase wildfire frequency, especially in semi-arid portions of the globe. Additionally, tropical areas are projected to experience higher rainfall totals due to changes in climate, which would decrease the frequency of wildfires. However, the abundant vegetation growth as a result of increased rainfall could result in more severe wildfires, if they are able to ignite, due to the increased source of fuel. The three major factors that determine the severity of a wildfire include weather, topography, and fuel sources.

  1. Weather: The likelihood of a major wildfire increases with dry, hot, and windy conditions. This type of weather makes fire ignition easier, allows fuel to burn more rapidly, and increases fire intensity. For example, higher wind speeds can transform a small, manageable fire into an uncontained catastrophic event in very little time.
  2. Topography: Slope steepness also influences the behavior of a wildfire. The more steeply sloped the terrain, the more increased the rate at which the fire spreads. Additionally, uneven and steep terrain make containment efforts more difficult for responding authorities. Other topographic features that influence wildfire severity include the direction a slope faces (south- and southwest-facing slopes are most favorable for fires) and narrow drainages (can act as chimneys). The loss of vegetation due to wildfires can cause further problems due to an increased threat of flash flooding and mudflows.
  3. Fuel Sources: Wildfires are mainly fueled by living vegetation and dead plant matter. However, houses and other structures may also become a source of fuel.

Wildfire Hazards

Wildfires can have negative health consequences that extend beyond extinguishing the fire. Smoke associated with wildfires is a mixture of gases and fine particles from burning trees, plants, and sometimes building materials, which can pose major health concerns. Such smoke can hurt the eyes, irritate the respiratory system, and may worsen symptoms for people who have pre-existing respiratory conditions – such as respiratory allergies, asthma, or chronic obstructive pulmonary disease (COPD). Smoke from wildfires poses health concerns not only for people in the immediate area, but also those in areas downwind of the wildfire. Learn more about the health effects from wildfire smoke exposure.

Mitigating Wildfire Risk During a Trip

When planning an outdoor trip, develop a safety plan. Be sure you are traveling to a safe environment and are prepared with the equipment to keep the area free of accidental wildfires. Examples of necessary equipment include a bucket of water and a shovel to douse the flames and cover the remaining embers of the campfire to make sure the fire is extinguished completely. Additionally, make sure to have a plan, including an emergency supply kit, in case you are threatened by a wildfire.

Take these steps as part of your wildfire safety plan:

  • Know the area you are staying in. If camping, make sure to plan two possible escape routes should you need to evacuate the area and if one route is blocked due to the fire.
  • Create a checklist of gear, rules and reminders, including packing necessary fire-prevention items, clearing the area of nearby brush before lighting your campfire, and having a full tank of gas if evacuation is necessary.
  • Be prepared to use proper campfire extinguishing techniques. Adhering to a few simple rules and reminders can help keep outdoor parks and woodland areas safe.
  • Pay attention if there are any fire or travel restrictions in effect in the area to which you are traveling. Call local fire departments, forest service, or government representatives to ensure an area is restriction-free.
  • Be aware of the weather forecast. If you are traveling during fire season, avoid areas that could experience potentially dangerous weather patterns, including excessive heat, low humidity, and strong winds.

At the first sign of a wildfire or notification of a mandatory evacuation, leave the area immediately using established trails or roadways. Contact fire officials as soon as possible. If an escape route is blocked, go to the nearest lake or stream and stay in the water while the fire passes overhead or is stopped due to the water barrier. Be sure to contact local authorities using a mobile phone or radio to notify them of your current location and situation.


About WorldAware

WorldAware provides intelligence-driven, integrated risk management solutions that enable multinational organizations to operate globally with confidence. WorldAware’s end-to-end tailored solutions integrated world-class threat intelligence, innovative technology, and response services to help organizations mitigate risk and protect their employees, assets, and reputation.

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