HospitalityLawyer.com | CONVERGE May-June 2013 Issue - Insurance Coverage for Hotels Facing Fungi and Bacteria Claims, Examining Fraud & Recovery, Domestic Violence in the Industry, OSHA and Whistleblowers, Confernece Updates and More

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HospitalityLawyer.com | CONVERGE May-June 2013 Issue - Insurance Coverage for Hotels Facing Fungi and Bacteria Claims, Examining Fraud & Recovery, Domestic Violence in the Industry, OSHA and Whistleblowers, Confernece Updates and More

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In the May-June 2013, we'll examine coverage for hotels facing fungi and bacteria claims, fraud & recovery, domestic violence in the industry, OSHA and whistleblowers, as well as provide you with......

In the May-June 2013, we'll examine coverage for hotels facing fungi and bacteria claims, fraud & recovery, domestic violence in the industry, OSHA and whistleblowers, as well as provide you with updates for our upcoming travel and hospitality events.

For more information, please visit http://www.hospitalitylawyer.com.

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  • 1. MAY/JUNE 2013 www.HospitalityLawyer.comINSURANCE COVERAGE FORHOTELS FACING FUNGIAND BACTERIA CLAIMS+OHSA AND WHISTLEBLOWERSEXAMINING FRAUD & RECOVERYCONFERENCE UPDATESDOMESTIC VIOLENCE IN THE INDUSTRY
  • 2. Air travel analysts predict that the summer of 2013 will see the most people getting onplanes since the summer of 2007, which means that travel risk management has never been amore timely topic! Savvy travel managers will keep a close eye on trends as we make ourway through June, July, and August. HospitalityLawyer.com aims to explore this increase intravel at the 3rd Global Congress on Travel Risk Management, held from September 30 toOctober 1 at the Galleria Omni Hotel in Houston, Texas, as part of a comprehensiveanalysis of the Duty of Care equation.The impact of escalating summer travel won’t end there; hotel managers and restaurantoperators have a busy season ahead of them, which means hospitality lawyers will findthemselves on the frontlines of this trend! Learn, adapt, and overcome the challenges youencounter, and bring your newest experiences and knowledge to the next Hospitality LawConference, February 10-12, 2014.Yes, this means we’re all going to put in a little overtime this summer,but it also means we’re in the right line of work at a very exciting time!If you’re interested in sponsoring, attending, or presenting at ourconferences, don’t hesitate to give us a call (713-963-8800) or shoot usan email. Our door is always open.PRESIDENT AND FOUNDER, HOSPITALITYLAWYER.COM
  • 3. DEVELOPMENTSHOTELS&RESTAURANTSCrime Pays: A Conversation of Fraud andRecovery Chris Giovino Dempsey Partners LLC516Make It Your Business: 3 Reasons Whythe Hospitality Industry Should AddressDomestic Violence Lynn Fairweather, MSWPresage Consulting & Training, LLCTRAVEL153rd Global Congress on Travel RiskManagement: Teaser #1 and More!September 30 - October , 201320 2014 Hospitality Law ConferenceFebruary 10-12, 201411Insurance Coverage for Hotels FacingFungi and Bacteria Claims David P. Bender, Jr.and Michael J. Stoner Anderson Kill & Olick, P.C.21 Cussing Out Your Employee May Get YouSued…By OSHA? Howard Mavity Fisher & Phillips
  • 4. DEVELOPMENTSPlease give us a brief description of your practice.Occupational fraud and crime is a significant andgrowing exposure for all industries, includinghospitality. In recent years, the challenging economyhas helped to drive the incidence of these crimes.A study by the Association of Certified FraudExaminers (Association of Certified Fraud Examiners:2012 Report to the Nations) found occupational fraudcaused $3.5 trillion in losses. The typical fraud lastedtwo years. The median loss was $140,000 and one infive involved losses was $1 million or more.However, the good news is that anti-fraud controls,including hotlines, surprise audits and anti-fraudtraining can significantly reduce a company’sexposure to loss.5By Chris Giovino, Partner, Dempsey Partners LLC
  • 5. With these crimes, literally anyone in an organiza-tion is a potential perpetrator. Criminals range fromhourly employees all the way up to senior manage-ment, including the CEO. The size of loss correlateswith annual income level, tenure, age, education, andthe level of collusion involved in the crime.Among perpetrators, 87% were first-time offenders;36% were considered“living beyond their means,”and 27% had been experiencing financial difficulties.However, more often than not, the perpetrator hasdone the same thing at one or more formeremployers.Perhaps the most significant potential financialremedy for occupational crime and fraud is crimeinsurance. If your company has insurance, review theadequacy of coverage and limits. In addition, see ifyou have“cost/fee coverage,”which can pay for the useof outside providers to help investigate a crime. Untilthey are victims, many businesses don’t realize theyare woefully under-insured and lack cost/fee coverage.6DEVELOPMENTSFRAUD RISK FACTORSTo help organizations assess their potentialexposure to occupational crime or fraud, theAssociation of Fraud Examiners has identified somekey considerations, often called the“triangle”or“three legs of fraud.”First, consider the impetus to perpetrate a fraud.The business driver having to“make a number”might lead one to manipulate transactions. Andthere’s the personal motivation, usually financialgain or desperation, to engage in theft against theemployer.Another factor is opportunity: Does apotential perpetrator have access to assets?Are controls inadequate or non-existent?Corporate culture plays a part as well. Evenin a strong outward culture of integrity, thefeeling may be different within specificdepartments or functions. Is financialaggressiveness or risk-taking part of theorganization’s culture or a desired attribute fora certain class of employees?
  • 6. DEVELOPMENTSIf occupational fraud is suspected, absent any exigent or life-threateningissues, you might take the following measures:7WHAT TO DO IF FRAUD IS SUSPECTED1. Locate and read the company’s crime or2.3.4.5.6.7.8.perpetrators.9.THE LOSS ADJUSTMENT PROCESSCrime claims are unlike other claims for propertydamage loss or business interruption loss, orsimple accidental liability matters like car damage.They are conducted within guideline timerestrictions. There is a frequently exercisedprovision for an extension, so, there’s no reason torush. While claims may be paid as submitted, thenorm is to be challenged and receive the carrier’soffer and negotiate. Here’s the typical sequence ofevents involved in filing an insurance claim:
  • 7. DEVELOPMENTS81.2.3.4.5.6.7.8.MANAGING THE INTERNAL INVESTIGATION: WHO DOES WHAT?In an internal investigation, the principal leadership roles include:The risk manager, who oversees the process and communicates directly with the firm’s insurancebroker and/or insurance carrier(s).The in-house counsel, who manages the internal audit, investigation, litigation, law enforcementactivities, and controls costs.The investigator and forensic accountant, who conduct the investigation under external counsel(privilege) umbrella, working with in-house resources, such as internal audit.
  • 8. DEVELOPMENTSIf there is any potential danger surrounding thecircumstances of your loss, call the local police. Inthis context“police”refers to the appropriate lawenforcement agency for the specificities of your loss.While some members of your firm may feel thepolice should investigate, it is not always in yourbest interest to call too soon.Nonetheless, your insurance policy may contain aprovision that dictates notifying law enforcement.Pay attention to whether it is simple notice orwhether you must file a report and refer the matter.They are very different.Remember: Once you refer your case, even thoughyou may be the victim with certain rights, theinvestigators likely will make communication a one-way street. If the matter goes to a grand jury, youwill be precluded from learning anything from lawenforcement.A crucial decision is when to call and, moreimportantly, whom to call. Mistakes in referring yourinvestigation to the wrong agency or prosecutorialoffice can lead to significant frustration.Understand the complexity and reach of your loss.Consider that any investigation or search for assetsmay be outside the local jurisdiction. If all is in-stateand you have a state police division with stronginvestigative acumen, they may be perfect. Somecounty sheriffs have excellent investigators. Youneed to know.Often, the complexity and need to reach across statelines or outside the country will dictate that youseek federal assistance. The FBI, IRS, Secret Service,ICE, Marshal Service and the Postal Inspectors havedifferent priorities, skill sets, thresholds and capacity.For example, the U.S. Attorneys’Offices havedifferent thresholds and priorities throughout thecountry. Know which agency best fits your loss.Your forensic accounting and internal investigationwill be important to law enforcement; it providesthem with quantum of loss, witnesses, statements,evidence and a road map. A symbiotic rapport maydevelop between the investigators and your forensicteam. A solid forensic investigation can also providelaw enforcement with leads towards assets whichmay be vital towards alternative restitution.9WORKING WITH LAW ENFORCEMENTMANAGING CIVIL LITIGATIONAs a practical matter, investigative firms and riskadvisors generally do not advocate law suits.However, there may come a time when thoseinvestigating the crime will need bank records andother financial information. Law enforcement willlikely get them from search warrants and grand jurysubpoenas. You will not be able to share in theirgood fortune.The civil subpoena and civil discovery can bevaluable tools used to establish the existence andamount of loss, including an examination of vendorbusiness records, employee bank accounts, and shellcompany documents.Typically, civil litigation follows the investigation inthe form of a subrogation action by the carrier. Iflitigation is inevitable, getting the process started
  • 9. DEVELOPMENTSSWORN PROOF OF LOSSThe proof of loss is a series of documents that willinclude a detailed narrative flow of what happenedand who did what to whom. That is followed by awell-documented calculation of the loss. You willneed to provide all source documents.This is a standard insurance policy requirement.Note the time requirements for filing the proof ofloss, as well as any possible suit against theinsurance carrier. Also consider how much evidenceis sufficient: Insurers will go to great lengths tovalidate and develop the facts.When a loss occurs, insurance coverage attorney,David P. Bender, shareholder, Anderson Kill, Ventura,California, advises businesses to construct a team“consisting of forensic accountants with experiencein these cases; an insurance coverage lawyer andother technical experts as necessary to prove proofof loss.“Any insured that relies solely on the insurancecompany or even law enforcement to prove theirloss will not get the full benefits due them undertheir insurance policy,”he warns.DAMAGES AND QUANTIFICATION OF PROOFKeep in mind, proof of damages must be actualcalculations and not estimates: Insurers have noincentive to pay“estimates.” You can use a variety ofapproaches to quantify damages, includinghistorical trends or any statistical anomalies that youmight be able to identify. In filing your claim, beprepared to defend any assumptions.CONCLUSIONThe hospitality industry finds itself constantly in thecross-hairs of employees and others who covet andcriminally target the high volume of goods,foodstuff, liquor, valuables, and cash. The industryhas incredible internal resources, such as securityand audit, to fight fraud and theft. In spite of bestpractices, those who want to“take”and who havebeen in position to exploit flaws or openings or softspots in the best controls will do so and you willsustain losses.Preparation is at least as important as prevention.Those responsible for risk management shouldrecognize the potential for a loss due to employeemalfeasance and external forces alike. There shouldbe an exercise to quantify worst-case scenarios asis done typically for physical damage and businessinterruption losses. Then, spend the time tocultivate relationships within the organization andcreate a“go to”SWAT team for that moment whenfraud is suspected or in fact substantiated. Be wellread, provide proper notice, and recover your loss tothe fullest extent.Chris Giovino,Partner-in-chargeP: (203) 762-5052 E: chrisgiovino@dempseypartners.com
  • 10. By David P. Bender, Jr. and Michael J. StonerOne nightmare scenario faced by hotel andresort executives is dealing with the formerguest who claims that he or she contracted afungal or bacterial illness at their establishment.True or not, the last thing that a hotel or resortwants associated with its name is“fungus”or“bacteria.” Yet with the increasingly widespreadusage of social media and anonymous access toreview sites such as Yelp or TripAdvisor, the mereallegations of“fungus”or“bacteria”can causepotential guests to, at the very least, take theirbusiness elsewhere. In addition to the publicrelation problems, allegations of bacterial andfungal injuries at a hotel or resort can lead toexpensive litigation and substantial liability.Too often, though, insurance companies refuse todefend or settle these types of claims under thecomprehensive general liability policies they havesold, basing the denial on two common policyexclusions: a Fungi and Bacteria Exclusion and thePollution Exclusion. In such cases, policyholdersin the hospitality industry should be prepared tofight back. The insurance company’s ability todeny these claims on the basis of this exclusionmay be more limited than it leads one to believe.11DEVELOPMENTS
  • 11. The standard Fungi and Bacteria Exclusion is notas broad as the name may imply. Endorsed tomany comprehensive general liability policies,the Fungi and Bacteria Exclusion does noteliminate coverage for all claims arising out ofexposure to a fungi or bacteria, but only whenthe fungi are“on or within a building orstructure…” There are numerous places within ahotel or resort where a guest couldpotentially be exposed to a harmful bacteriumof fungi: Outdoor swimming pools, golf courses,gardens, spas, parking lots, ski slopes, etc. If it’snot in a building or structure, it’s not excludedunder the Fungi and Bacteria Endorsement.“Building”and“structure”are usually not definedin the standard Fungi and Bacteria Exclusion.Alert policyholders can employ this vagueness intheir evaluation. Exclusions are construednarrowly and ambiguous terms are resolved infavor of the policyholder in most jurisdictions.Therefore, if there are reasonable grounds to saythat something is not a building or structure,then it’s not a building or structure with respectto the Fungi and Bacteria Exclusion. So long as itis possible that the exposure occurredsomewhere on the property other than abuilding or structure, the insurance company willgenerally owe a complete defense in the matter.DEVELOPMENTS12FUNGI AND BACTERIA EXCLUSIONPOLLUTION EXCLUSIONPerhaps recognizing that the Fungi andBacteria Exclusion did not completely eliminatethe potential for coverage, more and moreinsurance companies are seeking to expand thescope of the pollution exclusion to include Fungiand Bacteria. “Pollution”is often defined as“anysolid, liquid, gaseous or thermal irritant orcontaminant, including smoke, vapor, soot,fumes, acids, alkalis, chemicals and waste . . .” Asvirtually any substance could theoretically beshoehorned into that definition by a cleverinsurance company, many carriers haveaggressively relied on the pollution exclusion tolimit coverage.A recent decision by the Eleventh Circuit Court ofAppeals highlights a flaw in the insuranceindustry’s reasoning. The court reasoned thatif fungi and bacteria were included within thescope of the Pollution Exclusion, there wouldbe no reason at all for the existence of a Fungior Bacteria Exclusion. Westport Insurance Co. v.VN Hotel Group, LLC, 2013 WL 1196957 (11th Cir.Mar. 22, 2013). Because every claim triggeringthe Fungi or Bacteria Exclusion would alreadybe excluded under the Pollution Exclusion, theFungi or Bacteria Exclusion would serve nouseful purpose. Such a result would fail to givefull meaning and operative effect to the entirepolicy – a standard rule for interpretinginsurance policies. See id. at * 9. As such, theCourt rightly recognized that the fungus andbacteria fell outside the scope of“pollutant”under the policy.
  • 12. DEVELOPMENTS13CONCLUSIONDealing with bacteria and fungus claims can be aheadache for any hotel or resort for manyreasons – but uncooperative insurancecompanies should not be one of them. Byunderstanding the limits of the Fungi andBacteria Exclusion and the Pollution Exclusion,a hotel or resort can substantially increase itschance of recovery from its insurance companywithout the need to resort to expensivelitigation. Of course, given the complexity ofthese cases and the nuances of each individualinsurance policy, it is always recommended thatcoverage counsel be consulted for any specificmatter.david p. bender, jr.managing shareholderDavid P. Bender, Jr. (dbender@andersonkill.com) is the managing shareholder in the Ventura, California,office of Anderson Kill & Olick, P.C. Mr. Bender co-chairs the firm’s Hospitality Industry Practice Group and isa member of the Board of Directors of the Academy of Hospitality Industry Attorneys. A long-time advocateof policyholder’s rights, Mr. Bender represents public and private corporations, financial institutions, privateand public educational institutions, and boards of directors.P: (805) 288-1300 E: dbender@andersonkill.commichael j. stonerassociateMichael J. Stoner (mstoner@andersonkill.com), an associate in the firm’s California office, is a member of thefirm’s Hospitality Industry Practice Group. His practice focuses on insurance recovery, corporate andcommercial litigation, and environmental lawP: (805) 288-1300 E: mstoner@andersonkill.com
  • 13. 14DEVELOPMENTS
  • 14. 16HOTELS & RESTAURANTSMake It Your Business3 Reasons Why the Hospitality Industry Should Address Domestic ViolenceBy Lynn Fairweather, MSW, Presage Consulting & Training, LLCAs a threat assessment and managementconsultant, I often face the challenge ofconvincing employers to heed potential workforce“time bombs”, including those they can’t hear tickingjust yet. Sometimes new clients seek me out becausea“personnel land mine”just exploded inside theirorganization, seemingly without warning. The dangerI’m referring to comes from domestic violence, andunfortunately many businesses don’t realize theyhave a problem until an assault occurs on premises,as it will for one in four large companies. Currentestimates indicate that nearly two thirds of all womenhave been physically, sexually, or severelyemotionally abused by an intimate partner. Men canalso be abused, but statistics show that the majorityof victims are female.
  • 15. 17HOTELS & RESTAURANTSOne study in particular tells us that 74% of abusedwomen are employed, and for many, themaltreatment received at home continues at work.1For example, abusers frequently call victims on thejob to check up on, harass, or threaten them. Theymay show up in person to do the same, botheringor intimidating customers and other workers as well.In fact, current or former husbands and boyfriendscommit over 14,000 violent incidents in theworkplace each year.2For the hospitality industry,the risks may be particularly elevated. Why? First,hotel lobbies and restaurants are generally opento public access, making it easier for an abuser toreach his target. Second, the hospitality field is oftena place where younger, more transient workers findemployment. Many are in lower paid, entry levelpositions and more than half are female, all factorsthat correlate with victimization. Third, in thehospitality industry, domestic violence can occur ona number of fronts, involving line workers,executives, customers, or overnight guests.Employers must take action on multiple levels toprevent violence in their workplace.Although workplace attacks are never completelyavoidable, there are concrete steps companies cantake to protect employees and customers, whilesimultaneously reducing health care costs,absenteeism, and legal risks. Organizing andimplementing a corporate domestic violenceresponse program is easier and more cost effectivethan you might think. Here are three compellingarguments for the investment, beginning with themost urgent:#1: SafetyOf all the things that could possibly cause a femaleworker’s death on the job, from falls to electrocution,in most years the leader of the pack is homicide. Inroughly 20% of these murders, the alleged killer wasthe victim’s current or former intimate partner.3Suchwas the case in Orlando, FL on September 27, 2012.That was the day Michelet Polynice brought ahandgun to the Quality Suites Inn where his ex-girl-friend Carlene Pierre was working at the front desk.Two weeks before, Polynice had been served with arestraining order for hitting Carlene with his car inthe hotel’s parking lot. Carlene and her co-workerVanessa Gonzalez-Orellanes were shot and killedinstantly. Polynice then drove to the Westgate LakesResort parking lot where he shot and woundedCarlene’s best friend Jean Guerline before killinghimself. This tragedy is, of course, a worst casescenario, but its occurrence proves that such anattack (or even a larger one) could be looming justaround the corner.Research has shown that most corporate securitydirectors are already aware of the threat domesticviolence in the workplace poses. In fact, in a recentsurvey, 94% of them ranked domestic violence as ahigh security problem at their company. 4Yet oddly,another study found that although a significantmajority of corporate executives recognized thedevastating impact of domestic violence in theworkplace, only 13% thought their company shouldaddress the problem. 5If the safety of theiremployees and the general public is not enoughto sway the C class, perhaps this next point will gettheir attention:
  • 16. 18HOTELS & RESTAURANTS#2: CostBeing abused at home (and possibly at work) canresult in a number of problems for employees, andthus multiple costly issues for their employer. Forexample, a victim of domestic violence may sustaininjuries, causing them embarrassment and painwhich then produces absenteeism and health carecosts for their company. When they do return towork, they may arrive late or leave early, becausetheir abuser has kept them up all night or sabotagedtheir childcare and transportation plans. While onthe job, victims can suffer from anxiety, humiliation,and an inability to concentrate, due to threateningphone calls or visits from their abuser. The victim’sco-workers experience difficulty when these thingshappen as well, because they may be worried forher safety, frightened for their own, or resentfulthat they have to take up her extra work. Over time,these concerns can produce low morale and a highturnover rate. When translated to dollars, the cost ofabuse becomes colossal: U.S. employers collectivelypay out more than $5.8 billion each year in lostproductivity, absenteeism, and health care costsrelated to domestic violence.6Employee victimization isn’t the only part of theequation that affects your bottom line. Althoughyou may not know who they are, statistics say thereare probably batterers working for your companyright now. And according to one study, their abusivehabits often crossover into the workplace. Inaddition to displaying bullying tendencies andaggressive behavior on the job, 78% of themadmitted to using company resources andequipment to harass, threaten, or check up on theirvictim.7Furthermore, 42 percent admitted being lateto work, and 48 percent had difficultyconcentrating on the job as a result of their abusivebehaviors.8Curious about how much domestic violence may becosting your company? Check out the Texas HealthResources Domestic Violence Cost Calculator athttps://www2.texashealth.org/dv/. Youraccountants may be in for an expensive surprise.#3: LiabilityIf you’re starting to see the benefits of addressingdomestic violence, but still aren’t sure you could getcompany wide buy-in, consider bringing on the onlyteam members who might seal the deal: thecorporate lawyers. Attorneys have a keenunderstanding of liability issues, and therefore canhelp to drive home the following point: neglectingto take action against domestic violence could leaveyour company open to massive legal and financialrisk. To begin with, there is the General Duty clauseof the Occupational Safety and Health Act of 1970,which says employers must take steps to protecttheir workers from acts of violence. If the employerfails to do so, the result may be a substantial OSHAfine, or worse. Jury awards for inadequate securitysuits average $1.2 million nationwide andsettlements average $600,000.9Considering thatdomestic violence makes up a quarter of allworkplace violence, it’s an area well worth anemployer’s focus.
  • 17. HOTELS & RESTAURANTSFor example, when Francesia La Rose’s employerState Mutual Life Assurance Co. failed to takeadequate action to protect her against a specificthreat, they paid in both blood and money.Francesia was murdered by her former boyfriendat her work site, causing not only heartbreak forher family and trauma to her co-workers, but an$850,000 settlement by the company as well.10Other legal considerations include the possibility ofa discrimination claim, an Americans withDisabilities Act complaint, or a wrongful terminationlawsuit from a victim who has been fired, not hired,or passed over for a promotion due to the fact thathe or she is a victim of domestic violence. Acompany can also be sued if it is determined thatthey violated a victim’s privacy, ignored harassmentfrom other employees toward the victim, imposedsubstandard or punitive job changes, or failed toallow a legitimate absence under the Family MedicalLeave Act.Don’t forget about those batterer employees either.Successful lawsuits in many states have proven thatcompanies can be held liable for the dangerous actsof employees if they don’t use reasonable care inhiring, training, supervising, or retaining them whenharm was in any way foreseeable.A final but significant point for the hospitalityindustry to consider is that they are responsible notonly for their employee’s safety but also that ofcustomers, guests, and others invited onto theirpremises. For instance, if a hotel desk clerk issues acopy of a woman’s room key (without permission) toher estranged husband, who then enters the roomand harms her, the hotel can held accountable.And no one wants to imagine the cost in lives andlawsuits that could accompany a domestic violencerelated mass shooting in the workplace.As leaders of our country’s workforce, directly orindirectly employing 1 out of every 17 Americans,the hospitality industry is in prime position to effectchange and take a stand against domestic violence.Not only might lives be saved, but individualcompanies could profit through both hard and softbenefits. If you are considering addressing domesticabuse within your workplace but don’t know how tobegin, please read part two of this article in the nextissue when I explain the steps required to create aneffective, in-house domestic violence program.REFERENCES1) Report on Costs of Domestic Violence, Victim Services of NewYork, 1987.2) Workplace Crime 1992-1996, Bureau of Justice Statistics, July1998.3) Bureau of Labor Statistics’ (BLS) Census of Fatal Occupational In-juries (CFOI) 2003 and U.S. Department of Labor, Women’s Bureau,Facts on Working Women, No. 96-3, October 1996.4) Domestic violence can become public matter in the workplace.Amy Pavuk and Arelis R. Hernández. Orlando Sentinel, Orlando, FL.September 28, 2012.6) The Cost of Violence in the United States. 2007. Centers for Dis-ease Control and Prevention, National Centers for Injury Preventionand Control. Atlanta, GA7) Employers Against Domestic Violence. http://employersagainst-domesticviolence.org/effects-on-workplace/workplace-dv-stats8) Maine Department of Labor. 2004. Impact of Domestic Offenderson Occupational Safety & Health: A Pilot Study.9) Perry, P. 1994. Assault in the workplace. Law, May 1, 41.10) Burke, D.F. January, 2000. When employees are vulnerable,employers are too. The National Law Journal.lynn fairweather, MSWPRESIDENTP: (503) 956-5444 E: lynnfairweather@ymail.com
  • 18. 21HOTELS & RESTAURANTSCussing Your Employee Out May Get You Sued...By the OSHA?.By Howard Mavity, Partner, Fisher & PhillipsHopefully you’re already aware of the continuingescalation of all forms of whistleblower andretaliation claims, including under the 20+Anti-Retaliation laws enforced by specialinvestigators from OSHA’s Whistleblower group.If not, check out www.whistleblowers.gov.One of OSHA’s recent news releases states that theLabor Department has filed a lawsuit in the federaldistrict court against Duane Thomas MarineConstruction, and its owner Duane Thomas, forterminating an employee who reported workplaceviolence, in violation of Section 11(c) of the OSH Act.Sounds fairly standard.OSHA asserts that an employer fired an employee forcomplaining about unsafe work conditions. It’s a bitunusual to hear that the alleged unsafe conditionsinvolved fear of workplace violence, but who canblame an employee in the current environment? Butas you read on, it turns out that the complained-ofhazard was the owner!
  • 19. HOTELS & RESTAURANTSWhen the Owner is the HazardThe employee alleged that, on numerousoccasions between 2009 and 2011, Mr. Thomascommitted workplace violence and createdhostile working conditions. He allegedly behavedabusively, made inappropriate sexual commentsand advances, yelled, screamed, and madephysically-threatening gestures, in addition towithholding the employee’s paycheck.The employee, who worked directly forThomas, reported to him that he was creatinghostile conditions. On Feb. 25, 2011, the employeefiled a timely whistleblower complaint with OSHAalleging discrimination by Thomas for havingreported the conditions to him.On March 18, 2011, Thomas received notificationof the complaint filing. Five days later, Thomas hadcomputer passwords changed in order to denythe employee remote access to files and thenterminated the employee. OSHA’s subsequentinvestigation found merit to the employee’scomplaint.And we’re not just talking reinstatement: OSHAseeks back wages, interest, and compensatory andpunitive damages, as well as front pay in lieu ofreinstatement. Additionally, it seeks to have theemployee’s personnel records expunged withrespect to the matters at issue in this case and tobar the employer against future violations of theOSH Act. Wow…. But first, the usual caveat: wedon’t know all the facts.The employer may have really behaved badly andgiven the complainant the ability to make out aviable claim. Or, the employee may haveexaggerated, or even made up the whole thing.But while I have yet to see an employee lawsuitthat was completely accurate, there must be atleast some pretty bad facts to make OSHA takethe action it did.Lessons and Action Pointshoward mavity,partnerP: (404) 231-1400 E: HMavity@laborlawyers.comThis atmosphere may or may not havepresented a valid safety hazard, but guess what?Under the law, the violation is the act ofterminating the employee for complaining abouta safety concern. The concern does not have to bevalid! (There is a different standard if theemployee refuses to work because of anunfounded and unreasonable concern).For all we know, the employee could haveannoyed his boss with unfounded complaintsuntil the boss fired him in a moment of anger…but that too is a potential violation.Our advice: eliminate from your vocabulary thetwo phrases:“Boys will be boys,”and“You had to be there.” The problem is that lawyersand Uncle Sam will also be there if one’s conductis foolish enough.Train your supervisors to behave professionallyregardless of the setting, and remind them of allthe many behaviors, including some of theoffbeat ones, that are protected asWhistleblowing.
  • 20. The Venza Group and Hospitality EvolutionResources are joining forces to develop the firstrobust and insightful training curriculumdedicated to the hospitality industry on the topicof protecting“Personally Identifiable Information”(PII). Scheduled for launch June 2013, theinitial 4-pack of online training modules will teachhospitality staff about the crime of identity theftand the subsequent importance of protectingguest data – including the risks and consequencesof guest data breaches along with steps to taketo better safeguard the personal information ofguests, employees, executives, and hotels.“We are pleased to be partnering with the leadinghospitality online training provider, The VenzaGroup, to drive this initiative. Training hoteliersand hospitality staff about the importance ofprotecting Personally Identifiable Information orPII is a top line priority in 2013”said EvelyneOreskovich, President of Hospitality EvolutionResources.“The industry is realizing that PCIcompliance is just the tip of the iceberg.Encrypting credit card information is the first stepand protecting valuable identity informationtypically tied to hotel guest data is next. Oftenstored in raw, unprotected files, staff regularlyshares PII both internally as well as externally; thisunique curriculum truly offers the first hospitalitydriven course and presents the topic in detail fromthe victim’s perspective, while educating staff onthe hotel’s liability. It is also the first systemdeveloped by the hotel industry for the hotelindustry.”“Our team is excited to announce this partnershipas we continue to focus on the development ofonline training modules with the hotelier in mind,”said Daniel Johnson, COO of Venza Group.“Hospitality Evolution Resources brings anincredible wealth and depth of knowledge withregards to privacy information awareness fromthe hotel perspective. We are sharing thisgroundbreaking training curriculum in a veryconsumable package that is far more robust thanany other such program developed to date. Weare thrilled to present this exciting new level ofinformation on the topic of PII to the world.”23
  • 21. The four initial training modules that comprise the new“Personally Identifiable Information”Curriculum include:1. Introduction to PII: This essential PII introductorycourse is designed for all team members. It defines“Personally Identifiable Information”(PII), describes thecrime of identity theft and highlights how identify theftcan personally impact employees. Participants will learnhow thieves get access to PII (PII is compromised onlineand offline as well as via third parties); procedures forprotecting employee and guest data; employeeresponsibilities; tips and best practices for protectingemployee and guest PII; as well as consequences tohotels and employees if breaches occur.2. PII for Guest-Facing Staff: Whether part of theCall Center team or Reservations, Front Desk or Food &Beverage staff, this module teaches all those involvedwith point of sale or guest-facing services about howmuch PII they are exposed to every day. This course willtrain participants where threats exist in their day-to-dayjobs, review possible scenarios and reflect on commonpractices that may benefit thieves, as well as identify thebest practices that should be employed by point of salestaff to ensure safety of PII.3. PII for Sales & Marketing: This module addressesthe growing fear of privacy violations and identity theftvs. the need for customer recognition and effectiveCRM in the hotel industry. Specifically created for Salesand Marketing team members, this course more clearlydefines the types of hotel data that can be consideredPII. Participants will learn the dangers, mistakes and bestpractices for using PII both internally and externally withthird party vendors. The course also uncovers lesserknown issues surrounding hosting guests from foreigncountries, and reviews the overall impact andconsequences of PII breaches, including current lawsuitsin the industry, negative press, liabilities andterminations.4. PII for Executives: With the increasing focus oncommercial entities by the media and governmentagencies, this training program addresses the roles andresponsibilities of hotel executives with regard toprotecting guest PII. The module reviews statisticsabout privacy violations and identity theft in the hotelindustry, uncovers legal concerns and legislation, andtouches on Human Resource requirements. Participantswill review examples of how PII is compromised(onsite, offsite, via third parties); learn about lawsaffecting guests from certain states and other countriesregarding how long their data can be storedpost-departure; as well as develop an understanding forhow the Federal Trade Commission protects privacy forconsumers. Executives will learn real world bestpractices including: How to securely share and storedata; how to train staff on PII policies; as well as thebasic risks, mistakes, and consequences of breaches.This innovative PII online training curriculum consistsof four standard modules described above and willbe available in June, 2013. Three additional a la cartemodules on the topics of PII for Human Resources,Accounting & Finance, and IT & Security are in the works- projected for completion in July, 2013. For additionalinformation or to explore pre-launch promotionalpricing call 770-685-6500.Founded in 2008, the Venza Group® bridges the gapbetween technology and user competency for the travel/hos-pitalityandretailindustriesworldwide.Softwareprovidersandhotels leverage the Venza Group’s expertise and unmatchedpassion for service toachieve system adoptionand maximize operationalefficacy. Armed with keenindustry knowledge anda suite of products (e.g. Bridge™ and the PEAK™ Complianceand Performance training series), the Venza Group generatesresults. More than 5,000 hotels in over 100 countries look tothe Venza Group for tools, technology and strategic thinking.Hospitality Evolution Resources (HER) provides acomprehensive array of services and solutions dedicat-ed to the Hospitality industry including expert projectmanagement, clear thought-leadership, strategic vision, gapanalysis, RFP design, vendor vetting and training. Led byaward-winning industry veterans with knowledge in diverseareas of the lodging business, HER provides Hospitality-relat-ed companies with “solutions that pack results” — effectivelybridging the gap be-tween Management,Operations, Technol-ogy and Marketingto motivate teams,improve productivity, lower costs, and increase revenue. Thecompany additionally enjoys acclaim for its robust trainingcurricula focused on a range of Hospitality focused topicsincluding Distribution and PII security. For additionalinformation,visitthecompany’swebsiteatwww.HER-Consulting.com.HOTELS & RESTAURANTS
  • 22. 25FIND-A-LAWYERNeed legal advice or representationfor your company?Check out HospitalityLawyer.com’sFind-A-Lawyer database to locatenational and international attorneyswith experience in the hospitaliyindustry. You can search by country,state, industry area, and practice area.Visit us at www.HospitalityLawyer.comfor more information.Attorneys, join the Global Alliance ofTravel, Tourism & HospitalityAttorneys (GATTHA) to receive:Global exposure to the hospitalitycommunityListing in Find-A-Lawyer on ourwebsiteBranded article placement in ourpublicationsAccess to white papers, forms,checklists, and moreDiscount for the annual HospitalityLaw ConferenceSolutionsStoreThe HospitalityLawyer.com Solutions Store offers a variety of safety and securityproducts, services, and solutions from companies with solutions specifically forhotels, restaurants, and country clubs. Visit www.HospitalityLawyer.com for more info.
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