Mr. Schmidt

Hospitality Law

The Forgotten State Law Issues That Apply To Hotel Employers

By Michael C. Schmidt, Partner, Cozen O'Connor

When it comes to discussions and legal commentary about hotels and employment law, the focus generally is centered on employer obligations contained in federal law sources. For example, minimum wage and overtime obligations under the federal Fair Labor Standards Act; discrimination and harassment issues under such federal laws as Title VII, the Americans With Disabilities Act, and the Age Discrimination in Employment Act; medical leave issues under the Family and Medical Leave Act; union-related issues under the National Labor Relations Act; or pension and benefits issues under ERISA. Hotel employers must continue to consider and understand the nature of these federal-based obligations, and the potential for avoiding exposure to liability by being pro-active.

But each state (and local municipality) has something to say too. And it is imperative that hotel employers at least consider the myriad of state-based obligations that exist in each jurisdiction of operation. First, most states have their own wage and hour requirements. Take New York, for example, where such requirements are embodied primarily in Article 6 of the New York Labor Law and four wage orders issued by the New York State Department of Labor. These sections address details that are not included in the comparable federal law, such as the timing of wage payments, required written agreements for those who are paid (in whole or in part) by commission, deductions from wages, and required written notification at the time of hire (such as rate of pay and identification of specific pay day, exempt/non-exempt classification and leave policy, if any), and at the time of termination (such as effective day of cancellation of benefits). Most states in which a hotel is operated will have some form of wage and hour obligations, all of which should be consulted.

Second, most states also have their own set of laws and regulations prohibiting discrimination and harassment in the workplace. In New York, the New York State Human Rights Law imposes additional, and, in some cases, broader, obligations on employers operating a business in New York. Moreover, hotel employers located within the boroughs of New York City also have to consider the New York City Human Rights Law (“NYCHRL”), which courts have recently interpreted as protecting a broader group of aggrieved employees, and as not affording employers the same defense available under federal law in all cases. For example, the NYCHRL was amended in 2005 with the “Restoration Act,” which unequivocally stated its purpose:

• The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed. (New York City Admin. Code, § 8-130.)

When the issue of employee “leave” periods is mentioned, most think about disability - and pregnancy-related leaves granted under federal law. The most well known of those are the federal Family and Medical Leave Act, and the federal Americans With Disabilities Act. Indeed, the Americans With Disabilities Act Amendments Act, effective on January 1, 2009, requires that the term disability “be construed broadly,” thus potentially affording greater protection to a greater number of employees.

Hotel employers must continue to carefully consider their obligations under those federal statutes, although, many states such as New York have filled in gaps and afforded even greater (and additional) leave rights to employees. By way of example, section 206-c of the New York Labor Law contains a “Right of Nursing Mothers to Express Breast Milk”. The primary provisions of this law include the requirement that employers provide reasonable, unpaid break time, or permit an employee to use paid break time or meal time, to allow an employee to express breast milk for up to 3 years following child birth. Section 206-c also requires an employer to make reasonable efforts to provide a private room in close proximity to the employee’s work area, and expressly prohibits discrimination against any employee who chooses to express breast milk in the workplace.

Another new leave obligation is contained in New York Labor Law Section 202-j, which provides for a “Leave of Absence for Blood Donation Granted to Employees.” This law requires employers of 20 or more employees to grant to any employee who works an average of 20 or more hours per week, three hours of leave in any 12-month period for the purpose of donating blood. Section 202-j prohibits retaliation against an employee for requesting or taking such leave. It is clear that states are trending toward increasing required leave time for employees, and broadening certain rights of employees in the workplace.

But it is not simply the state wage and hour laws or anti-discrimination laws that must be considered by hotel employers. There are other state-based statutory obligations that are directed expressly at hotel owners and operators. It is beyond the scope of this article to delve into each separate provision in full detail. Suffice it to say, the important notion to be left with is that hotel employers need to understand and comply with federal and state laws that affect their properties.

As New York is home to many hotel owners and operators, that state’s law can be illustrative. First, there may be laws relating to the general operation of the hotel. For example, Article 12 of the New York General Business Law pertains to hotels, and, specifically, such things as the maintenance of safes, property logs, rates, guest fraud, and registration by individuals of identical, similar or misleading names. Section 395-b deals with the unlawful installation or maintenance of a two-way mirror, viewing device, or video recording device in hotel rooms, while section 523 addresses credit card practices for certain providers of travel services, including public accommodations in hotels and motels.

News is often made about state-based dram shop liability, such as New York General Obligations Law sections 11-100 and 11-101, which imposes liability in certain cases in the context of the sale of alcohol to guests and patrons. New York Public Health Law sections 1345 through 1348 impose specific obligations with regard to hotel sanitation, and contain requirements for bedding, sheets, and towels. And, section 2101 imposes a duty on a hotel in certain cases to give notice of cases of communicable diseases.

In addition to the state law anti-discrimination proscriptions described above, there are other state-based statutory provisions that deal squarely with the employer-employee relationship and the hotel-guest relationship as well. For example, section 40 of the New York Civil Rights Law expressly requires that all persons within the state are entitled to “the full and equal accommodations, advantages, facilities and privileges” in any place of “public accommodation, resort or amusement.” That term is defined to include “hotels, motels, inns and taverns.”

In the end, there are many sources of obligations that must be considered by hotel employers. While many focus their discourse and time on the primary federal law obligations, it is the many state and local law requirements that cannot be forgotten.

Michael C. Schmidt is a member of Cozen O'Connor in the Labor & Employment Practice Group. A portion of his practice is devoted to advising large and small businesses how to avoid litigation and minimize exposure to claims. He has represented clients in the hospitality and restaurant industry in matters involving wage and hour, discrimination and employment contract disputes. Mr. Schmidt is an Adjunct Professor of Law at Touro Law School in Central Islip, N.Y., he teaches employment law. He lectures and conducts seminars for human resources professionals, corporate executives, and lawyers. Mr. Schmidt can be contacted at 212-453-3937 or mschmidt@cozen.com Extended Bio...

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