David Sherwyn

How employment law became a major issue for hotel operators.

In the wake of new statutes and case law, issues relating to discrimination have expanded in the past twenty-five years to absorb a substantial amount of management time and attention. The basic law of discrimination is the Civil Rights Act of 1964, which created specific protect classes. That law was revised and expanded in 1991, and other causes of discrimination were added by such laws as the Americans with Disabilities Act and the Age Discrimination in Employment Act. Supreme Court decisions have clarified and expanded certain aspects of the laws, notably the definition of sexual harassment. Perhaps the fastest-growing complaint involves retaliation, in which employees seek to claim that unwanted employer actions result from some aspect of a civil rights complaint. While considerable confusion remains over certain aspects of discrimination law, employers should make every effort to properly instruct their supervisors and follow court-outlined procedures.

Job Sharing: A Potential Tool for Hotel Managers

Abstract Job sharing took on a new meaning when it allowed NYC hotels to avoid laying off key staff members.

You (Don’t) Look Marvelous: Considerations for Employers Regulating Employee Appearance

Under federal law, employers are generally allowed to set policies regulating employees’ appearance, provided that those policies do not impinge on groups specifically protected under federal statute. State and local laws, however, may preclude employers from implementing such dress and appearance policies. Employers whose workers are unionized must consider the provisions of the bargaining agreement. One trend in connection with regulations relating to employees’ appearance and dress is that creative lawyers have stretched the law to cover certain workers.

Interpreting the ADA and Civil Rights Law Five Supreme Court Rulings

Five cases decided by the Supreme Court in 1999 carry mixed messages, but on balance they argue for extreme care in hiring decisions relating to individuals with disabilities. Three cases involved hiring practices under the Americans with Disabilities Act, while another involved civil-rights law, and the fifth examined Social Security-related disability. In the three ADA cases, the court held that conditions such as poor vision and high blood pressure are not disabilities under the ADA if they are treatable. In two cases, individuals with disabilities could not be employed in their desired position due to federal regulations. Still, those individuals were not considered disabled under the Americans with Disabilities Act because when their conditions were corrected they still could qualify for some jobs in their chosen field, just not the job in question. Even an employer-imposed regulation withstood a court challenge under the same logic. That does not mean, however, that future employers can make all such hiring decisions with impunity. Instead, there is a gap in the cases that could make the holding moot for most private employers. An unrelated case opened the door to punitive damages in cases where employers are found to be in violation of discrimination provisions of the Civil Rights Act. The situations in which punitive damages are not to be considered are so few that most employers will have to redouble their efforts to comply with the law. Finally, a fifth case, also connected to the ADA, determined that a finding of total disability by the Social Security Administration, for the purposes of granting disability insurance, does not necessarily equate to a finding that a person is not qualified to work under the provisions of the ADA. The two determinations are to be made separately according to the regulations governing each.

Roundtable Retrospective 2007 Dealing with Sexual Harassment

A review of sexual harassment case law was presented at the 2007 Labor and Employment Roundtable at the Cornell University School of Hotel Administration. The foremost lesson is that employers should take steps to prevent harassment, but failing that, an employer should maintain and follow a strong policy on sexual harassment and immediately make an effective response to a complaint.

Arbitration of employment-discrimination lawsuits: Legalities, practicalities, and realities

Abstract Arbitration agreements can be an effective, cost-effective way to settle employment disputes-but not all courts agree about what constitutes an enforceable contract.

The Utility of Integrity Testing for Controlling Workers’ Compensation Costs

Integrity tests can be a hiring tool to help employers determine which of their prospective employees will be more likely to engage in unproductive, dangerous, or otherwise risky actions on the job. Candidates are surprisingly candid when answering test questions about their workplace theft or drug use, but the tests also have control questions intended to indicate when an applicant provides false answers in an attempt to answer “correctly.” Although tests represent an additional expense in the hiring process, a study of a large hotel chain found that the savings in screening out potentially expensive employees more than made up for the costs of conducting the tests, based on a substantial reduction in workers’ compensation claims. A conservative estimate is that the company experienced a 50 percent one-year return on investment from the test. It is important to note that the tests do not violate U.S. employment laws, as data show that the tests create no adverse impact on protected groups.

The Hotel Industry’s Summer of 2006: A Watershed Moment for America’s Labor Unions?

Neutrality agreements allow labor unions to organize workers in hotels and other industries without the trouble of a secret-ballot election. UNITE HERE, which represents hotel employees in several major markets, attempted in summer 2006 to extend its reach into the industry via neutrality agreements. The union contracts expired in several markets, which meant that the hotel chains were faced with the possibility of labor strife in their major cities. In exchange for labor peace, the chains agreed to a moderate extension of organizing by neutrality agreement, but not to the extent that the union might have wished.

Trying to Make Sense of Sexual Harassment Law after Oncale, Holman, and Rene

The state of the law governing sexual harassment, which was far from clear, was rendered more turbid by a 1998 U.S. Supreme Court holding that offered examples of specific situations under which such harassment might be actionable. The Court’s ruling in a case of same-sex harassment has muddied the waters by opening the issue of the alleged harasser’s motivation. This provides a defense for harassers who may rebut the accusation that their actions are motivated by sexual interests. In addition to making same-sex harassment difficult to prove, this holding makes it nearly impossible for an individual to make a case of sexual harassment when that harassment is not specifically directed at that person even though the conduct at issue is severe or pervasive. Employers seeking to promote fair play and to prevent claims of sexual harassment must maintain strict no-harassment policies and educate their staffs on the reasons for such policies.

Retaliation The Fastest-Growing Discrimination Claim

Many employers were shocked and alarmed when the U.S. Supreme Court in June 2006 unanimously established a relatively broad standard regarding employees’ complaints of retaliation by employers when...Many employers were shocked and alarmed when the U.S. Supreme Court in June 2006 unanimously established a relatively broad standard regarding employees’ complaints of retaliation by employers when employees have made discrimination complaints. An examination of case law as well as comments made by those attending the 2006 Labor and Employment Law Roundtable at the Cornell University School of Hotel Administration allow us to conclude that although employees who make complaints need to be treated carefully, employers need not panic. Instead, they must thoroughly document any personnel actions and base them on actual performance, making sure that any termination or demotion is, in fact, not a retaliation.