Background Checks for Employees

By Kathleen Pohlid Founder & Managing Member, Pohlid, PLLC | April 13, 2014

A mistake in hiring of an employee can pose significant liability for a hotel establishment. Background checks provide a measure of assurance that the applicant does not have indicators of behavior or risk which may undermine security and safety of guests or compromise the establishment's business. However, background checks can also expose employers to charges of discrimination. It is important that establishments use background checks as necessary, avoid improper use of background checks, and comply with federal and state laws when conducting them.

Here are some best practices to adopt with respect to background checks:

Be Aware of Your Establishment's Duty in Hiring

Numerous decisions are involved in the hiring process and there is an element of risk in hiring any employee. Establishments, like other employers, have a duty to exercise reasonable care when hiring individuals to avoid exposing others to an unreasonable risk of injury. A background check, coupled with checking employee references, is a measure of exercising such reasonable care to ensure that the employee is qualified to perform the duties in a responsible, safe and reliable manner.

When an employer can establish that it exercised reasonable care in making the hiring decision, it can avoid liability for the acts of employees done outside the scope of their employment which result in injury to other persons.

A background check provides evidence to demonstrate that an establishment exercised its duty of reasonable care before hiring. In Gargano v. Wyndham Skyline Tower Resorts, 907 F. Supp. 2d 628 (D.C. N.J. 2012), a federal judge held that Wyndham was not liable for negligent hiring of an employee who sexually assaulted an onsite employee of a housekeeping contractor. The hotel asserted that it had exercised due care by conducting a background check which did not reveal any past history of sexual assault and that the assault could not have been anticipated. The hotel was aware of prior incidents of outbursts by the employee and a pattern of argumentative behavior, none of which resulted in physical injuries or damage. Although the judge noted the outbursts indicated the employee "may not be a model employee," the incidents did not make sexual assault foreseeable. The judge found no case law to support the proposition that the mere "evidence of general character flaws or lapses" in an individual is sufficient to sustain a negligent hiring claim.

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Sales & Marketing: Selling Experiences

There are innumerable strategies that Hotel Sales and Marketing Directors employ to find, engage and entice guests to their property, and those strategies are constantly evolving. A breakthrough technology, pioneering platform, or even a simple algorithm update can cause new trends to emerge and upend the best laid plans. Sales and marketing departments must remain agile so they can adapt to the ever changing digital landscape. As an example, the popularity of virtual reality is on the rise, as 360 interactive technologies become more mainstream. Chatbots and artificial intelligence are also poised to become the next big things, as they take guest personalization to a whole new level. But one sales and marketing trend that is currently resulting in major benefits for hotels is experiential marketing - the effort to deliver an experience to potential guests. Mainly this is accomplished through the creative use of video and images, and by utilizing what has become known as User Generated Content. By sharing actual personal content (videos and pictures) from satisfied guests who have experienced the delights of a property, prospective guests can more easily imagine themselves having the same experience. Similarly, Hotel Generated Content is equally important. Hotels are more than beds and effective video presentations can tell a compelling story - a story about what makes the hotel appealing and unique. A video walk-through of rooms is essential, as are video tours in different areas of a hotel. The goal is to highlight what makes the property exceptional, but also to show real people having real fun - an experience that prospective guests can have too. The June Hotel Business Review will report on some of these issues and strategies, and examine how some sales and marketing professionals are integrating them into their operations.