Duff on Hospitality Law

This year's HSMAI Lodging Chief Digital Officer Executive Roundtable was held on December 8, 2015 at Washington, D.C.

For those of you who attended, or did not attend the Roundtable, my presentation, "Distribution Parity: Where Do We Go From Here?", is available below. It features an overview of recent worldwide parity developments in the online distribution world.

Feel free to contact me if you have any questions.

Since their official unveiling in December 2014, the FDA’s final menu-labeling rules have given rise to a multitude of questions from hospitality businesses who wonder how to comply or whether they must comply at all. The FDA, in turn, appears to be trying its level best to provide enough time and guidance to ease these businesses’ transition to the new rules. First, the FDA extended the deadline for compliance by a full year from December 1, 2015 to December 1, 2016, citing the agency’s extensive dialogue with chain restaurants, grocery stores, and other members of the hospitality industry. 

Most credit and debit cards in the U.S., and the point of sale terminals and ATMs that read them, still use “magnetic stripe” technology. Magnetic stripes are obsolete and relatively insecure, allowing fraudulent practices such as “skimming” (acquiring cardholder and account data by “reading” the strip, and then making fraudulent transactions or counterfeit cards). Magnetic stripe-based technology also does not support secure data transmission through contact or near-field contactless interfaces, which is seen as impeding the emergence of fully mobile cardless payment modes in the U.S. 

From franchisers and companies hiring workers through staffing agencies, to participants in the so-called “sharing economy,” companies and individuals today enter into a variety of contractual arrangements to reduce costs and to maximize available capital, flexibility, talent and efficiency in delivering goods and services. The recent decision of the National Labor Relations Board (“NLRB” or “Board”) in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), may change how many of these relationships function, and even, whether some of them are now too risky for some participants.

Emily Harris Gant is an alcoholic beverage attorney, and an Owner in GSB’s national Hospitality, Travel, and Tourism Group.

A distributor is knocking on your hotel restaurant’s door, offering key chains from a hot new distillery for your customers. A brewery just dropped off coasters for use in the restaurant’s bar. And a winery offered cork screws for your sommeliers.

As a responsible retail licensee, you know that most states tightly govern the relationships among liquor retailers, manufacturers, and distributors.

But where’s the line? What kind of “swag” and other valuable items can your hotel restaurant accept for free without running afoul of the law? To find out, read on.

Lawyers often say “bad facts make bad law”. Combine that with weak legal arguments and, well, things can get really bad, really fast. That’s precisely what happened to Wyndham yesterday when the Third Circuit affirmed a federal District Court decision that the Federal Trade Commission (“FTC”) has authority to regulate cybersecurity under the unfairness prong of § 45(a) of the Federal Trade Commission Act. While commentators may disagree on the result from a legal or policy perspective, one thing is for certain, it was a bad result for Wyndham. The decision rejected in no uncertain terms Wyndham's argument that the FTC lacked authority; and not kindly.

The Competition & Markets Authority (CMA), which investigates business practices and enforces anti-competition and consumer protection legislation in the UK, just released a report and call for information that signals more scrutiny for online reviews and endorsements. Though the report does not identify companies or sites that will be the subject of investigation, it expresses a general concern that a number of businesses are breaking the law. The report does not point fingers, but it’s worth noting that the hospitality industry is mentioned several times as an area of particular interest, based in part on a survey conducted by the British Hospitality Association in March of this year. Consumer reliance on reviews for vacation travel, the relatively higher cost for hospitality related services, and the sensitivity of the hospitality related services to negative reviews were cited by the CMA as reasons why the industry is an area of particular concern.

The sharing economy requires a new look at work relationships. Many of the business models in the sharing economy are based on individuals being creative and entrepreneurial as they seek to provide services to others. Drivers for companies such as Uber and Lyft share their cars using a license to access software that connects drivers and riders. Residences are rented out on a short term basis using software that markets to prospective travelers on sites like Vrbo and Airbnb. SnapGoods provides a mechanism for lending or borrowing high-end household items. DogVacay provides host homes to animals whose owners are travelling. TaskRabbit allows others to bid to do your tasks and odd jobs. There is a never-ending list of creative sites looking to maximize the sharing economy. But, when is the line crossed from independent contractors providing services to others to employees of the “hosting” company? This is the question that has been the focus of recent administrative rulings and lawsuits involving Uber.

Joy Ellis, member of our Labor, Employment & Immigration and Hospitality, Travel & Tourism practice groups, brings us the very latest news about Oregon’s Statewide Paid Sick Leave Bill. Thank you, Joy! – Greg

In the hospitality industry, dress code policies are very important. Diana Shukis, member of our Labor, Employment & Immigration group, brings us the latest US Supreme Court ruling regarding image-based policies. Thank you, Diana! – Greg