Most common hotel lawsuits

Bob Blanchefiled

Attorney
Cell Phone: 407-497-0463.
Email: bob@blanchfieldlawfirm.com
LinkedIn

Eric Kurbanov

Co-Founder MyHotWorks

Email: eric@myhotworks.com
LinkedIn

Most common hotel lawsuits

MyHotWorks is short for My Hotel Works, specializing in tips, tricks, and tools for maximizing profit and creating a stress-free environment within your hotel operations.

**Eric**
Hello! My name is Eric. I’m a co-founder of MyHotWorks.com, and today, we have Bob with us once again. This is the second video in this series. Bob, how are you doing today?

**Bob**
I am good, Eric. How are you?

**Eric**
I’m doing great! And for today’s topic, we’re going to cover some of the most common lawsuits facing the hospitality industry. What is your take on that?

**Bob**
Well, Eric, as you know, the last time around, we discussed the Fair Labor Standards Act, which requires all employers in the hospitality industry and otherwise to pay their employees at least federal minimum wage, and in some states, there’s a higher statement wage along with overtime pay if any of the hourly employees work overtime. Then, we also discussed how certain employees are exempt from the requirements to pay overtime. These lawsuits about pay are very common, the most common in federal court. But today, I’d like to switch gears and talk a little bit about the Americans with Disabilities Act, or the ADA.

Now, there are two parts to the ADA. One is accommodations for employees with disabilities in the workplace. The other aspect of the ADA is regarding customers who visit your business for the purpose of purchasing products or services. This obviously applies in both the restaurant industry and hotel industry. It’s a very common lawsuit in federal courts today rivaling the Fair Labor Standards Act.

**Eric**
Right! I see. And what are the most common claims in ADA cases?

**Bob**
Good question, Eric. The most common claims that I see, both in restaurants and in the hotel industry, are claims based on failure to accommodate, and by that, I mean, for example, that the entrance to your lobby in your hotel’s restaurant is not compliant for someone in a wheelchair. In the hotel industry specifically, we get a lot of claims that hotel rooms and hotel room bathrooms are not compliant. Those are the most common claims. I also see, especially in the hotel industry, many claims that there is a failure to post the correct signs in parking lots or to have the proper number of ADA parking spaces. I think it’s interesting that most people who do not need a wheelchair would say that there are ADA parking spaces all over the parking lot. And while that is often true, it is also true that those parking spaces are not properly marked, are not the proper width or depth, or do not have an access aisle adjacent to the parking space, so a wheelchair could not effectively be taken out or rolled out of the vehicle because there’s simply no space between that vehicle and the vehicle next to it.

So those are probably the most common claims. And unfortunately, they can be expensive claims to rectify. So it is worthwhile to spend some energy and time to determine if you have a compliance issue. The ADA does have certain regulations and specifications that any business owner can look up or research. It is complicated. I would say it’s a complicated endeavor unless you’re familiar with the regulations to do research on your own.

**Eric**
I see. So examples that you mentioned are mostly regarding guest-related or customer-related cases. How about some employer-related cases in regards to the ADA?

**Bob**
Well, that’s a good question. Many of my colleagues who represent business owners would simply say that if you have an employee that requests an accommodation, go ahead and make that accommodation. And by that I mean, if someone, for example, needs an ergonomic chair, that’s certainly an accommodation that most employers could make. There are accommodations that are more difficult. For example, I have an employer that came to me said, “I have an employee that has a health issue. She has to take a certain medication that causes her to sleep during the work day.” And my client said to me, “I don’t really have a problem if she needs to take a nap, but she snores so loudly, it’s hard for other employees to get their work done.” So we found her a cubicle that is more private, so that allowed her to take some short breaks during the day where she could nap or just rest. But I think with most of my clients who come to me with employer-related disability issues, we worked hard to find some type of accommodations even if it was not exactly what the employee had in mind.

**Eric**
I see. I understand, and how does that relate to pregnancy in the workplace? I know in a lot of hotels or even in restaurants, you lift heavy trays, and sometimes in the hotels, you lift heavy beds if you are in housekeeping. How does that relate to pregnancy?

**Bob**
Well, that is a really good question. It’s an area of the law that is relatively new and evolving. Obviously, any employee needs to be able to perform the essential functions of their job. So how do you accommodate someone, whether they’re pregnant or maybe they have an injury that doesn’t allow them to lift anything above a certain weight? My clients will then attempt to accommodate them by finding other less strenuous work for them to do. However, I also have clients that simply said, “I don’t have other types of work for you.” Maybe this person was on disability leave or even qualified for employment benefits. My client didn’t really have any interest in letting any person with a disability or pregnancy leave employment but simply did not have a work for them. And to follow up, for most of my clients, I suggest that they try to accommodate them and try to find them work at the same job, or it could be an equivalent job, if possible when they return. That again, especially for smaller businesses, can be quite a challenge.

If you have less than 50 employees, of course, you’re not covered under Family Medical Leave ACT. But of course, discrimination law applies to businesses with fewer than 50 employees. So it’s important to know what laws apply to your business and what laws don’t. For example, don’t tell all your employees that you are going to comply to the family medical e-vat if that law doesn’t actually cover your business because you’re a smaller business. That being said, I think most of my clients try to do the right thing and accommodate.

**Eric**
I see. Yes, that makes sense. Usually, the best approach is to do the right thing in the business.

**Bob**
I think you’re right. I will say, circling back just for a moment, especially in the hotel industry, unfortunately, in the world of ADA cases, we also have what are called testers. Testers are individuals who are disabled, and they simply visit businesses for the purpose of trying to identify a violation of the ADA. So what I suggest to my clients in hospitality and other industries is to start with what’s obvious from the street. If I’m driving to your business or drive into your parking lot, if I see problems right away, such as not seeing the correct signs, the correct parking spaces, or the correct ramps to get into your business, that’s a signal to me if I’m in a wheelchair that this a business that probably has other problems, whether it’s a restaurant or hotel. When I enter your business, do I see the proper height for counters in your lobby? Do I see the proper width for doorways to accommodate my wheelchair? My suggestion is to always start from the customer’s perspective and try to eliminate barriers or issues on the way into the business. My sense would be that if someone in a wheelchair immediately recognizes your business as one that is obviously compliant, maybe that individual will go down the road to the next business to look for violations and won’t bother with your business.

And that’s not to say that I’m encouraging folks not to pay attention to this law and not to accommodate in terms of having hotel rooms that are compliant. It’s simply to say that these fixes can be expensive. Start with the ones that are going help you mitigate the risk of a problem. Start there. I have some clients and hotel owners in Orlando and elsewhere, and they went into their rooms and spent a lot of money. I would say they would welcome anybody with a disability and would never have a fear of there being an issue. I have other hotel owner clients who own hotels that are older, maybe built in the 40’s or 50’s when the interstate system was completed. It’s very difficult for them to update those hotels, and it’s very expensive. They have to move walls and bring in engineers. It can be a challenge, and it can be expensive. If you get one of these cases: A) call an attorney and B) try to make the corrections quickly because the folks that are making money in these cases are usually the testers. They’re not the folks in the wheelchairs; they’re the attorneys. And nobody likes to pay attorneys. I can tell you that right now. Nobody wants to pay the attorneys.

**Eric**
Yes. That’s a very interesting topic that you brought up about testers. Recently, I heard about a case where that’s apparently that’s what it was. A tester came into a hotel and asked for special equipment for the hearing impaired for the room, and, of course, the hotel did not have one ready to go. One request was made but was not able to provide, and they couldn’t locate it because such requests are not made very often. Later on, it was found that the same person had about 25 different ADA cases within the state of Florida.

**Bob**
Unfortunately, Florida, New York, and California have, by far, the highest number of ADA cases. It’s unfortunate, but I think Florida is a vacation spot. There are just a lot more opportunities for issues. And it’s not uncommon for a single tester to have, as you said, 20 or more cases going on at any single time, especially where you have an older building. In New York City, they’ve got a lot of these cases, and it’s very difficult for business owners to accommodate these new regulations. It takes a lot of construction design to make those accommodations.

So that’s why my suggestion always is to look at it from the outside. Maybe put yourself in the wheelchair and see what the challenges are. To be honest, Eric, I have a hotel owner client who always says, “We’re booked” if anybody calls to make a reservation and needs an ADA-compliant room. I don’t advocate that approach, but I understand why they are extremely nervous, especially regarding your point in Florida where there’s a lot of this litigation.

**Eric**
That’s a very interesting point and very good insight. And what are some steps that the hotel or restaurant can take to reduce the risk of ADA cases?

**Bob**
Well, I think that, often, what you have is someone who comes into your hotel. If, for example, you don’t have the right counter for someone in a wheelchair, my recommendation is to always have the person behind the counter walk out from the behind the counter and pull a chair over next to the person with a wheelchair to fill out paperwork, etc. Certainly, I think that the more cordial and the more accommodating you are, and I’m not talking about legal accommodation; I’m just talking about cordiality. If a hostess in a restaurant looks for a table where someone in a wheelchair can feel comfortable, maybe they have to move some tables around. But those are the kinds of steps that, I think, reduce the risk of any sort of litigation. And I would also say that if someone in a wheelchair is in an ADA-compliant hotel room, I always recommend that the person at the front desk suggests, “If you have any problem in that room—I don’t care what it is—we will take care of it. You call down to the front desk, and we’ll be on it right away.” And I think, again, you’re not going to completely eliminate the risk of litigation, but you can reduce it.

**Eric**
I see. So, basically, it boils down to more training for employees.

**Bob**
I think that’s important. I think that is, by and large, overlooked by many of my clients in the hotel and restaurant industry. I can’t speak for larger corporate-owned hotel chains, but I think that some training is important, such as for the folks that are cleaning the rooms. It could be as simple as the little round table in the hotel room being too close to the bed. It seems like a very small thing, but if a wheelchair can’t get in between the bed and the table, there’s a problem. Well, I don’t think it takes a lot of training, but it does take some amount of training to make sure your housekeeping staffs is aware of issues like that.

**Eric**
I see. Training is overlooked in non-corporate hotels as far as cases as ADA compliance. And just like you mentioned, it’s very simple, common sense, but often, everybody is so busy that it doesn’t cross our minds to think about the other person that could be in a wheelchair.

**Bob**
I think you’re right. Especially in the hotel industry, everybody’s working hard, and everybody is busy. I think the challenge is finding that 15 to 30 minutes periodically to have very short training sessions and documenting them. Whether you’re training on the ADA or employment issues, document what you’ve done because if litigation does arise, that’s a defense that can certainly be effective. You could say, for example, to the judge, “Your Honor, we have trained on this issue often and regularly. Here is our training. Are we absolutely 100% buttoned up? Maybe not. But at least we have periodic training, and we also have, for example, housekeeping supervisors that review every room or nearly every room to make sure we’re compliant.” I think the ounce of prevention really can help because once you’re served with a complaint, you can bet that it’s going to be expensive to resolve it due to attorney’s fees as well as having to make some fairly significant changes to your restaurant or hotel to bring it into compliance.

**Eric**
In our industry especially, there is never too much training. So I really appreciate you giving this advice. One final question: If I’m a franchisee, do I need to worry about franchise law if I face an ADA case?

**Bob**
Generally speaking, it probably depends on the agreement that you have with your franchisor. That being said, on average, I would say that yes, your franchise core certainly doesn’t want to end up with a reputation as someone whose franchisees are sued, whether it’s a FLSA case or an ADA case. I would say that franchisors, at least in my experience in the hotel industry, visit periodically to ensure compliance with the ADA and other federal and state laws. Whether it’s for safety or OSHA whatever it happens to be. So to circle back to your answer, I would say yes, but I’m not aware that there’s any formal requirement that a franchisee notifies a franchisor unless it’s in the agreement.

**Eric**
As usual, very good insights, Bob. Thank you very much, and if any of our viewers have any questions and would like to investigate this further, we will have your contact information below. And I would like to mention once again that if you haven’t watched the video about the FLSA and minimum exempt salary requirements, we’re also going to have the link below. You can go back and watch it. Thank you very much. I really appreciate your time, and we’ll see you next time around.

**Bob**
Thanks, Eric, and have a good day!

Email: bob@blanchfieldlawfirm.com
Cell phone: 407-497-0463
Website: www.blanchfieldlawfirm.com

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