Find A Lawyer
Find A Law Firm
Find An Expert
Find A Vendor

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

Attorney of the Week
Kalbaugh, Pfund & Messersmith

Brian has been an invaluable member of the  Kalbaugh, Pfund & Messersmith 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.

Law Firm of the Week
Hamilton, Miller & Birthisel

Hamilton, Miller & Birthisel was founded by attorneys dedicated to the practice of admiralty and maritime, transportation, personal injury defense, international, hospitality, commercial litigation, medical and professional malpractice defense, property and casualty, premises liability, negligent security, construction, subrogation, insurance coverage and bad faith, insurance fraud, and products liability law. We have an experienced corporate law practice group that negotiates and drafts all manner of business contracts. We also provide ancillary services, including emergency and crisis management, corporate training, and arbitration. Our firm is AV® rated by Martindale-Hubbell®, the highest peer review rating attainable by a law firm. We represent a broad range of industries including major domestic and international insurers, hospitality, construction, admiralty and maritime, transportation, healthcare, product manufacturers and distributors, government, commercial real estate, and retail.

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.

While You're Here:

Find lawyers, law firms and companies which focus on hotel, restaurant, and travel law, as well the duty of care owed by businesses to traveling employees in our extensive directories.

Browse our resources for articles and white papers, access training and downloadable forms and solutions to assist in mitigating liability, and check out our groundbreaking conferences for intensive education, exceptional networking, and unequaled crisis management training.

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.

How Employers Can Respond to the 2019 Novel Coronavirus Outbreak

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers. This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread. However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring. At this time, it is unclear how easily the virus is spreading between people. Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell. The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States. On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.” On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV. Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus.

The Americans with Disabilities Act

Under the Americans with Disabilities Act (“ADA”), an employee with 2019-nCoV could fall within the definition of a “qualified individual with a disability” and therefore be protected by the ADA, as well as other state/local disability laws. Additionally, an employee exposed, or thought to be exposed, to coronavirus might be able to bring an ADA claim under the theory that the employee was “regarded as” having the virus.

Under the ADA, employers cannot make medical inquiries about employees unless such inquiries are voluntary or “job-related and consistent with business necessity.” If, however, an employee poses a direct threat (i.e., a significant risk of substantial harm that cannot be eliminated or reduced by a reasonable accommodation) to the health/safety of himself or others, employers may then require the employee to disclose certain health information. Similarly, employers that reasonably believe, based on an individualized assessment, that an employee might have been exposed to 2019-nCoV will likely be able to require the employee to undergo medical testing.

Another important aspect for certain employers to keep in mind in this area is that Title III of the ADA requires place of public accommodation to provide the full range of services to individuals with disabilities. This means that, if a place of employment is also a place of public accommodation (e.g., hotels, restaurants, etc.), the employer must be careful in implementing any policies that would result in guests or customers who are from areas affected by the outbreak to be subject to certain restrictions.

Family and Medical Leave Act

Under the Federal Family and Medical Leave Act (“FMLA”), as well as similar state/local leave laws, employees may be allowed to take time off for the diagnosis and treatment of their own medical condition, or for that of a family member, related to coronavirus. If diagnosed, an eligible employee will be entitled to FMLA leave, provided he can provide the required certification from his health care provider.

Additionally, employers who have a reasonable belief that the employee has been exposed to, or has contracted, 2019-nCoV may send that employee home to protect the rest of the workforce. If, however, an employee is singled out based on a protected characteristic, discrimination claims may arise. The most obvious example of this, considering the geographical origin of the virus, would be employers treating employees who are, or are thought to be, of Chinese descent differently than employees of other national origins. Employers should ensure that they treat all employees with potential exposure equally to avoid such claims. The same applies for employees who request to take a leave of absence to care for a family member.

It is important to note, for those employees who are sent home, that if the employee performs work for the employer, he must be paid. If the employee is exempt under the Fair Labor Standards Act (“FLSA”), he must be paid for the entire week during which he performs more than a de minimis amount of work. If the employee is non-exempt, he must be paid for all time worked.

Alternatively, to help avoid a situation where the difficult decision must be made as to whether to send an employee home, employers are encouraged to consider whether they might be willing to be generous with their remote work or telework policies. Not only do such policies reduce the legal risk of employees bringing forth claims of discrimination down the line, they also help prevent the potential spread of the virus in the workplace.

Occupational Safety and Health Laws

Although the Occupational Safety and Health Administration (“OSHA”) does not have a standard that covers the coronavirus – rather, OSHA is currently directing employers to CDC’s guidance for certain industries – the agency has been working on an infectious diseases rule, which could cover the virus, for quite some time. In a January 30, 2020, letter, Rep. Bobby Scott, Chair of the House Committee on Education and Labor, told Labor Department Secretary Eugene Scalia that the Committee is “very concerned that OSHA’s Infectious Diseases standard continues to languish on the agency’s ‘Long-Term Actions’ since being placed on the regulatory agenda almost ten years ago (May 2010).” He suggested that OSHA take the rulemaking off the long-term action list and issue a proposed rule, stating that the coronavirus “illustrate[s] the urgent need” for the rule.

Without a standard, it will be difficult – though, certainly not impossible – for OSHA to issue any citations related to the coronavirus (e.g., for failing to follow CDC’s guidance). Employers are warned, however, that OSHA could cite under its “catchall” General Duty Clause, which OSHA uses to cite employers where there is no standard that applies to the particular hazard. For employers who would like to learn more about the General Duty Clause, our OSHA Practice will be presenting a comprehensive webinar – All You Need to Know About OSHA’s General Duty Clause – on July 23, 2020.

Additionally, although there is no Federal OSHA standard, for employers with workplaces in California, it is important to note that Cal/OSHA recently issued guidance on the requirements to protect health care workers from the coronavirus The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings in California.

Specifically, 2019-nCoV is covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets. The ATD standard requires employers to have an ATD Exposure Control Plan with procedures to identify 2019-nCoV cases or suspected cases as soon as possible and protect employees from infection, and requires employers to provide training on such topics, as well as others. Additionally, the standard requires the implementation of engineering and work practice controls to minimize employee exposures.

What Employers Should Do Now

Employers are encouraged to communicate with their employees about the coronavirus to educate them about the virus, and where they may be able to find resources to protect themselves. Employers are also advised to communicate that employees should see Human Resources (or some other appropriate contact/department) with any questions/concerns.

For those employers that do not already have protocols on how to respond to infectious diseases, the development of such procedures is highly encouraged. Such procedures allow employers to respond to outbreaks of this nature in an organized, strategic fashion. As always, employers are also advised to seek the assistance of counsel to ensure such protocols and procedures are legally compliant.

Given the laws described above, employers need to be extremely cautious about sharing any health information related to 2019-nCoV diagnosis. Employers should proscribe to a general prohibition against sharing information about an employee’s health condition with managers, supervisors, and other employees. If an employee is on a leave of absence associated with coronavirus, however, employers can notify managers, supervisors, and other employees that an employee (but not who) is on a leave of absence that is non-disciplinary in nature. If an employer believes other employees might have been affected by the employee who has coronavirus and is on leave, the employer might suggest to the potentially affected employees that they may want to seek medical attention related to the virus, but again, should not reveal the name of the employee who has 2019-nCoV.

Employers are also encouraged to review their remote work and telework policies, and to promptly address any leave or accommodation requests from employees.

Importantly, since this is an emerging and rapidly developing situation, employers should continue to monitor the information and recommendations from the CDC, OSHA, the State Department, and other federal, state, and local government agencies involved in the response.


Authors

Kara M. MacielFirm Chair of the Labor & Employment Group, Conn Maciel Carey
Kara M. Maciel is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor • Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship.

Ms. Maciel works to create workplace solutions for her clients across all industries. She defends employers in litigation at both the federal and state levels, including matters related to the ADA, FLSA, FMLA, Title VII, and affirmative action/OFCCP regulations. She advises clients regarding the protection of trade secrets and the misappropriation of confidential or proprietary information, both defending employers and pursuing enforcement against former employees. When relevant, Ms. Maciel provides advice and counsel to unionized and non-unionized workplaces regarding the employer’s rights under the National Labor Relations Act.

Beeta B. LashkariAssociate, Conn Maciel Carey
Beeta B. Lashkari is an Associate in the Washington, DC office of Conn Maciel Carey LLP working in both the OSHA and Labor and Employment practice groups.

Ms. Lashkari advises and represents clients in a wide-range of inspections, investigations, and enforcement actions, including those from the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency (EPA), the U.S. Chemical Safety and Hazard Investigation Board (CSB), and state and local regulators. She handles all aspects of litigation against OSHA, from citation contest to hearings before administrative law judges. Ms. Lashkari provides legal advice to clients regarding compliance with all OSHA rules and standards, including the Process Safety Management standard, Grain Handling Facilities standard, Hazard Communication, Respiratory Protection Standard, and others. She also reviews and revises employee handbooks and workplace policies and procedures.

Read more

Predictive Scheduling Marches Onward

Perhaps no industry in history has been targeted for its basic employment requirements like the retail industry has been targeted over scheduling practices. The philosophy behind the rise of these ordinances is that having a predictable schedule is critical to employees. In the decision of Ward v. Tilly’s, in fact, the California Court of Appeal essentially assumed the role of the employee’s champion and explained that schedule predictability was an absolute necessity that allowed employees to plan around second jobs, make childcare arrangements, coordinate school schedules, and commit to social plans, among other things.

Glaringly absent from the court’s analysis, however, was the employer’s perspective. There was no concurrent recognition that scheduling changes and fluctuating staffing needs are often caused by unforeseeable market realities such as inclement weather, employee call-outs, and unposted community events. The court also did not consider potential negative impacts on employees. For example, because of restrictions on scheduling, employers now have fewer tools to manage unanticipated absences and are therefore likely to deal more harshly with those than they have in the past.

Predictive Scheduling Is Spreading

Chicago has become the latest municipality to pass a predictive scheduling ordinance, which will take effect in July 2020. The scope of Chicago’s new ordinance is stunning. It sets forth a notice requirement that employees be provided their schedule a minimum of 10 days in advance, which will increase to 14 days in 2022. The law prohibits an employer from taking adverse action against an employee who refuses to work nonscheduled hours. It further empowers employees to decline to work a shift if they have had less than a 10-hour break from their last shift.

If an employee does agree to work such a shift, the employer must pay them 1.25 times their regular hourly rate for that shift. In order to change an employee’s schedule after the deadline for notice, the employer must pay the employee one hour of extra pay. And if an employer cancels an employee shift with less than 24 hours’ notice, the employer must pay the employee 50% of the regular rate of pay for the hours that were canceled. The 50% pay also applies for an employee who is on call for a shift, but is not called in. Likewise, an employee sent home early must be paid 50% of the remaining hours.

Further complicating matters, an employer must offer an additional shift to current employees before it can use temporary or seasonal workers to handle their shifts. While there are some exceptions to these penalties – such as changes in schedule caused by civil unrest or where requested by the employee – they are unlikely to apply in the vast majority of situations.

Chicago now joins two states – Vermont and Oregon – and seven other municipalities – San Francisco, Berkeley, Emeryville, San Jose, Seattle, New York, and Philadelphia – as having predictive scheduling ordinances.

What Should You Do Now?

Unfortunately, compliance with predictive scheduling laws is far from easy. Larger employers with locations in multiple jurisdictions tend to be the most affected, although even smaller employers can find themselves in a position that requires a full overhaul of their current staffing model. Accordingly, it’s important to keep a few points in mind.

First, you should audit your locations. The piecemeal framework of predictive scheduling laws means that you may have multiple locations subject to different predictive scheduling requirements. As a result, a centralized staffing model can quickly become outdated, or even worse, a liability. Location-specific policy changes may need to be made, and managers may require retraining on how to handle staffing shortages.

Second, avoid the related pitfalls. No employment law exists in a vacuum, and predictive scheduling laws are no exception. Implementing predictive scheduling models will often impact other aspects of your business and, in some cases, could create unforeseen liability traps. For example, in San Francisco, forgetting to tell your payroll company to separately delineate the “Predictability Pay” scheduling change penalty on your employees’ wage statements could saddle you with a host of unexpected labor code violations and class action demand letters — all for a simple oversight.

Third, consider novel and creative approaches. To address the rise of these laws, some large companies have implemented the use of scheduling apps. In addition to viewing pre-posted schedules, employees can use the apps to swap shifts with coworkers or sign up for unfilled shifts in upcoming weeks. Although, even without apps, voluntary schedule swapping and sign-up policies are both phenomenal ways to reduce, and even eliminate, the need for last-minute scheduling changes — all while boosting employee morale.

Conclusion

Ultimately, when it comes to employment policies, there is rarely a “one size fits all” approach. What’s right for one company may not be right for another. As a result, it’s important to keep up to date on the newest changes in both law and compliance strategies. In the modern day, employment laws are changing at an ever-increasing pace. If the recent rise in predictive scheduling laws hasn’t hit your state or city just yet, it soon may.

Read more

Franchisees, Subsidiaries, and Affiliates Beware: California’s New Privacy Law May Apply To You, Too

Many small or solo franchisees, subsidiaries, and affiliates of larger businesses may think the California Consumer Privacy Act (CCPA), does not apply to you because you don’t meet one of the three threshold criteria. Your annual revenue is under $25 million, you do not annually collect the personal information of 50,000 or more California residents, households or devices, and you are not in the business of selling information. But upon closer inspection, you may be disappointed to learn that California’s groundbreaking new privacy law, which became effective January 1, 2020, may yet still apply to you. Here’s why.

If you rely on the internet for your legal advice (bad idea!), you will learn the basics – that the CCPA applies to any for-profit business that does business in California, collects the personal information of one or more California resident, and satisfies one of three thresholds: (1) generates annual revenue of $25 million or more; (2) collects the personal information of 50,000 or more California residents; or (3) derives 50% or more of its annual revenue from the selling of personal information. If your business is a local franchisee of a regional or national franchise, or a subsidiary or sister company among a family of companies, and your business does not satisfy any of the three thresholds, you may think this should be the end of the analysis. However, it is only the beginning.

The CCPA also applies to any other entity that “controls” or is “controlled” by a covered business and shares common branding with that covered business (whether the same trade name, dba, trademark or servicemark). This means that if your business is affiliated in any way with and shares common branding with another business that meets the above criteria and is subject to the CCPA, then the law would derivatively apply to your business if your business “controls” or is “controlled” by that CCPA-covered business. The CCPA’s definition of “control” for purposes of this analysis appears to be broader than the concept of control in other areas of law you may be familiar with (such as the control group test applied by the Employment Development Department, for purposes of the Affordable Care Act, or for joint employment).

The CCPA defines “control” or “controlled” as one of the following: (1) ownership of, or the power to vote, more than 50% of the outstanding shares of any class of voting security of the business; (2) control in any manner over the election of a majority of the directors of the business or of individuals exercising similar functions as directors; or (3) “the power to exercise a controlling influence over the management of” the business.

The first two tests for control under the CCPA’s definition are easy to understand and apply. The third test, however, is where the ambiguity and debate lie. Hence, this is where the risk of litigation and enforcement actions may be elevated. Neither the statute nor the attorney general’s proposed regulations shed light on what it means to have the power to exercise a controlling influence, what exercise of such power looks like, what a controlling influence means, and what constitutes “management” over which the level of influence must be assessed. Does this require control over all aspects of managing the business, or just simply one aspect of management such as product development or sales process?

In the context of franchisees, if the CCPA applies independently to the franchisor, then it will also apply to franchisees where the franchisor has “the power to exercise a controlling influence over the management” of the franchisee. Reading the words of the statute for their plain meaning, this appears to not be about whether the franchisor actually exercises a controlling influence, but whether the franchise agreement can be interpreted to vest the franchisor with the “power” to exercise such influence.

Reading further, the phrase “controlling influence over the management” does not seem to require the influence to be the primary or only controlling influence, but rather just “a” controlling influence. The meaning of this phrase is wide open for different interpretations. One possible interpretation is that having a controlling influence over a company’s management for purposes of the CCPA is not the same standard as “control” for purposes of joint employment and wage and hour issues, as management here is not limited to controlling the hours, schedules, timekeeping, and wage payment practices of the franchisee.

The franchise business model typically gives franchisors power and control over the brand, the making, preparation, packaging, and presentation of products sold or services provided by the franchisee, and the design, décor, marketing, etc. of the franchisee’s retail place of business (whether a restaurant, hotel, or other establishment). Under the franchise model, franchisees typically have to follow certain rules required by the franchisor to maintain the brand image – again, nothing to do with control over employees for purposes of joint employment. While no court has been presented with this issue yet and the final meaning of “controlling influence over the management” has not been determined, there is certainly a potential argument that the franchisee-franchisor relationship inherently and inescapably involves the franchisor not only having the power to exercise sufficient control but actually doing so in their daily operations.

Based on this analysis, it is possible that the CCPA will apply to franchisees, subsidiaries, and sister companies even if these individual entities do not satisfy any of the primary thresholds for CCPA coverage. The CCPA will apply to such businesses if they either (a) meet one of the 3 thresholds stated at top of this article, OR (b) share common branding with and are “controlled by” a parent company or franchisor that satisfies one of the 3 criteria, with the definition of “control” being so broad as to include “the power to exercise a controlling influence over the management of a company.”

If your business falls into one of these categories and you have not yet done anything to comply with the CCPA, it’s better to be late than never. Consult privacy counsel immediately and start working on your employee and consumer notices, privacy policy, and consumer request platform. DIY’ing CCPA compliance is just as risky as relying on the internet for legal advice. Fisher Phillips has a thriving Data Security and Workplace Privacy Practice Group and experienced attorneys ready to work with you on all aspects of CCPA compliance, including all consumer, employee, and website-related requirements. Feel free to contact me directly or any other attorneys in our privacy practice group or one of our five California offices.

Read more

Court Stresses the Need for a Business to Provide an Accessibility Statement on its Website

In 2018 and 2019, there were approximately 5,000 federal lawsuits filed against hotels, restaurants, stores, and other places of public accommodation alleging that their websites violated Title III of the Americans with Disabilities Act (“ADA”). In all likelihood this number of lawsuits will increase in 2020 now that the U.S. Supreme Court has declined to review a Ninth Circuit Court of Appeals decision against Domino’s Pizza that essentially gave the green light for individuals with visual impairments to file suit against places of public accommodation if their websites are not fully compatible with screen reader software or otherwise not accessible. You can read more about the Supreme Court’s decision here.

Despite the Supreme Court’s recent denial of Domino’s petition for Writ of Certiorari, business owners and operators have at least some room for optimism. Indeed, as we explained in a prior blog post, there were two rulings from the Southern District of New York in the Spring of 2019 that ruled in favor of businesses when: (1) the business had already fixed the website which mooted the case; and (2) the plaintiff had failed to identify any concrete or particularized injuries she suffered, including which sections of the website she tried to access, the date on which she visited the website, and what goods or services she was unable to purchase. Thus, it is comforting to know that at least some defenses are available and can succeed on a motion to dismiss.

Then, in November 2019, another business prevailed on a website accessibility case, this time in a case arising out of the Eastern District of New York. See Castillo v. The John Gore Organization, Inc., Case No. 1:19-cv-00388-ARR-PK (E.D.N.Y. Nov. 14, 2019). This case arose out of a theater’s stated policy on its website regarding the bringing in of outside food. Specifically, the Charles Playhouse in Boston stated on its website that audience members were prohibited from bringing outside food into the theater. In response to this policy, an individual with diabetes brought suit under Title III of the ADA alleging that the theater’s policy of prohibiting her from bringing in outside food dissuaded her from buying a ticket see a show because she was required to have snacks with her at all times to stabilize sudden drops in her blood sugar.

Fortunately for the theater, they had several available defenses to these claims, most notably that (i) it had a prominently displayed accessibility policy on its website stating that the theater was accessible to all patrons, and that guests with accessibility questions could email or call the theater directly; and (ii) the plaintiff never called or e-mailed the theater to ask whether there were any exceptions to the policy that might allow her to bring in snacks, despite this policy. Thus, due to the accessibility statement’s prominent display on the homepage of the website, the court found that the plaintiff must have seen the accessibility policy PRIOR TO seeing the policy prohibiting an individual from bringing outside food into the theater, yet she failed to contact the theater per the website’s instructions and was thereafter denied permission to bring outside food. As a result, the plaintiff was unable to demonstrate actual knowledge of a barrier to access. The court also rejected the plaintiff’s broader allegation that she intended to visit the theater at some unspecified time in the future if the alleged barriers to entry were remedied and the purported discriminatory policies were fixed. Thus, because the plaintiff failed to prove the existence of an injury in fact, the court dismissed the complaint for lack of standing.

If you are an owner or operator of a place of public accommodation, hopefully your website already contains a prominently-displayed accessibility statement. If not, this case certainly illustrates the importance of one. Such an accessibility statement must include language that your property is accessible to all guests and must also provide a phone number, email address, and contact person with whom to an individual with a disability can speak for any and all questions and requests regarding potential accommodations that can be made. If your business does not yet contain an accessibility statement, please contact us and we can help craft one and get it up on your website as soon as possible to reduce your potential exposure from an ADA website claim.

Read more

OUR FEATURED ALLIANCES