HOUSTON—The second day of the 14th annual Hospitality Law Conference, held here at the Royal Sonesta Houston, opened with the Hospitality Forum I, a series of presentations on topics affecting the hospitality industry, ranging from labor issues to workplace violence to social media risks, among others.
Lara Shortz, partner, Michelman & Robinson, LLP, discussed issues related to minimum wage increases. “It’s not an issue that’s going to go away with an election,” she said, noting that there is a federal push to increase minimum wage, but the increases are really at the state and the municipal level. “It’s going to have a large impact.”
Shortz discussed several options hotels have for dealing with these increases. “There’s the easy way: just raise rates,” she said. “It’s not a bad idea in this market, but the market may not stay this way and it doesn’t work for every property.” She noted that the resort fee is also a tool that’s used pretty consistently “but there are other ways to mitigate increased minimum wages.” Some of these ways included seasonal work, part-time employees, shift differentials, layoffs, automation, amenities, budgeting and outsourcing.
Andria Ryan, partner, Fisher & Phillips LLP, presented on the Department of Labor’s (DOL) new regulation on exemptions, and she echoed Shortz’s sentiment about this being an issue that is here to stay. “For those hoping something will change and it won’t go through, it will,” she said, noting that it’s likely that the DOL will announce its final ruling sometime around the summer, and implementation usually follows 60-120 days after that. “There’s still time to prepare; review all exempt employees below $50,000,” she said, noting that it’s possible some of these employees could meet the standard for other exemption rules, but hotels need to prepare to modify the pay of those who will no longer be considered exempt.
Meanwhile, Jim Dedman, partner, Gallivan, White & Boyd, P.A., discussed active shooter situations. “Studies suggest 10-15 minutes is about the amount of time these incidents take to unfold,” he said, noting that this means preparedness and training is paramount.
“How do we as attorneys or risk managers conceptualize and attempt to respond to an incident that is violent, rapidly evolving and unpredictable? Is this something we address pre-incident from a human resources standpoint where we attempt to de-escalate or recognize potential signs of violence? Is this something that we address by virtue of a preparedness plan or safety policy? Is this something we look to federal publications, which advise people who find themselves in an active shooter situation should run, and if they can’t run, to hide, and if they can’t hide, then fight? Is this something we address like earthquakes or fires in training?” he asked. “The answer to those questions is it’s a bit of all of them; it depends on the nature of your business, the size of your business and the location of your business.”
On another topic, Kalley Aman, shareholder, Buchalter Nemer, discussed social media policies. She noted that while it’s tempting to discipline or fire an employee who posts about the company on social media, many states and government authorities have recently taken steps to limit the employer’s ability to access and regulate employees’ social media feeds, so the hotel could be asking for a lawsuit.
“If you’re a manager, do not friend employees you supervise,” she said. “You may find out things you don’t want to know. It’s tempting to review it, to see if they’re saying anything negative about the workplace or you, but you may find out things you didn’t know. For example, that person’s sexual orientation, religion, do they have medical problems?” She noted there’s a risk they could later claim you made employment decisions based on that information and not legitimate criteria.
Aman added that if a manager or employer does see a public post—without asking employees for access—some comments might be actionable while others may not. “An employee saying, ‘My supervisor is a monster and I can’t stand working there,’ is probably not protected activity under the law. If they’re talking about forward looking conditions—workplace conditions, wages—that’s where you need to raise the red flag and consider whether this is protected activity under the law,” she said. If you do see social media content, Aman noted, you need to step back, evaluate the content and how you got that information before you discipline. “The best way to go about this is to have written policies on social media use,” she said.
—Nicole Carlino