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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

Sandy Gar Eckert Seamans
Attorney of the Week
Eckert Seamans Cherin & Mellott

Overview Sandy Garfinkel is a business litigator who serves as the chair of Eckert Seamans Cherin & Mellott’s Data Security & Privacy Group. As a nationally regarded authority on data security and privacy matters, Sandy is regularly published and speaks at numerous industry conferences on preparing for and responding to data breaches. In addition to his data breach response practice, Sandy works closely with the firm’s business clients concerning all aspects of General Data Protection Regulation (GDPR) compliance and enforcement. He works with clients on data security and privacy matters across a variety of industries and sectors, including hospitality, consumer products, insurance, education, health care, manufacturing, and telecommunications. Businesses struggle to stay ahead of the increasing threats to sensitive data and the emerging regulatory requirements, which is why Sandy counsels his clients on laws relating to the collection, use, and protection of personal information as well as mitigating risks and reducing exposure to investigations and litigation arising from the loss, theft, or exposure of personal data. He guides clients through all stages of breach matters, including advance planning and preparation, response and notification, government investigations and regulatory response, and, when necessary, litigation.

Law Firm of the Week
The Denney Law Group

The Denney Law Group is proud to represent start-up companies in various stages of life. Our Nose-to-Tail Law Practice® counsels clients from founding, through growth, to exit, providing high-quality legal services to various industries. We don’t focus on singular problems; rather, we seek to build lasting relationships with our clients so we may grow together. We are exceptionally proud of our nationally-recognized Restaurant, Bar, Alcohol & Hospitality practice. Whether you’re a single-unit restaurant, growing regional chain, seasoned multi-unit operator, hotel, bar, nightclub, brewery, winery, distillery, spirits company, caterer, or private chef, we can address the unique issues your business will face.

Deloitte
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.

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.

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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.

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HVS 2019 Hotel Parking Survey

Most hotels in urban centers profit considerably off of available parking capacity and, depending on the garage size and operational strategy of the hotel owner, garages can be significant value drivers. Our experience reflects that parking garages can operate with departmental profit as high as 40% to 50% if managed internally, or garages can be significant profit centers when operated by experienced, third-party garage operators. With more and more travelers using shared ride services to get around town, smart hotel operators are renting excess parking capacities on monthly contracts to commuters working in adjacent office buildings. These monthly contracts can boost profits even higher. Moreover, monthly pass users leave garage capacity available overnight when hotel guests may require the spaces the most. 

This summer we completed our first annual survey of typical overnight parking rates nationwide. Not surprisingly, the highest rates for parking are generally found in New York City, including the $95 parking rate currently charged by The Plaza. Nightly rates at luxury and upper-upscale properties in New York City, San Francisco, and Chicago tend to trend near the $70 to $75 mark. By comparison, most other city centers offer overnight parking at a bargain or do not charge for overnight parking. Also note the following findings: 

  • The following data reflect valet parking charges; if self-parking is an option, we have found these hotels discount the valet parking rate by $10 to $15 dollars on average. 
  • Hotels that reported free parking (when the range in the table begins with $0) are generally located on the fringe of central business districts, and not directly in the center of downtown.
  • Luxury and upper-upscale hotels fall at the upper end of the range, whereas midscale hotels fall at the lower end of the range.
  • Bold green reflects the cities with the highest overnight parking charges, whereas light green still reflects high parking rates, but not at the nation’s peak level. 

From a valuation perspective, be careful when comparing properties in city centers. A few may have major parking components (abnormal for a market) that skew a value high on a per- key basis, compared to another similarly-sized property on solely a room-count basis. It is important to inquire about garage utilization by daily and monthly users, daily parking rates, monthly contract rates, and the trends in all of the above over the last several years.


Data collection assistance provided by HVS team members Yi Ann Pan, Ziggy Hallgarten, and Bryanna Andersen.

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