1. Chapter 1 Prevention Philosophy

2. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Prevention Philosophy The Future Hospitality Manager and the Legal Environment The Future Hospitality Manager and the Legal Environment The Hospitality Manager and Legal Management The Hospitality Manager and Legal Management Preventative Legal Management Preventative Legal Management Ethics and the Law Ethics and the Law

3. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved In This Chapter, You Will Learn: 1. Why a study of laws related to hospitality is important. 2. The historical origins of the law and its evolutionary nature. 3. A philosophical framework to help prevent legal difficulties before they begin. 4. How to evaluate management actions on an ethical basis.

4. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Future Hospitality Manager and the Legal Environment Unique and diverse operating environment Unique and diverse operating environment Estimated that 60 - 70 percent of decisions made daily has legal dimension Estimated that 60 - 70 percent of decisions made daily has legal dimension Those decisions influence the potential for litigation Those decisions influence the potential for litigation

5. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Future Hospitality Manager and the Legal Environment Legalese: Terminology Legalese: Terminology Attorney –(Lawyer) Any person trained and legally authorized to act on behalf of others in matters of the law.

6. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Future Hospitality Manager and the Legal Environment Legalese: Legalese: Litigation – (Legal Process)The act of initiating and carrying on a lawsuit.(Court Case) Often, used to refer to the lawsuit itself.

7. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Hospitality Manager and Legal Management Legalese: Legalese: Law - The rules of conduct and responsibility established and enforced by a society.

8. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Hospitality Manager and Legal Management 1. Know the historical origins of the law. 2. Recognize that laws have an evolutionary nature or Process, based on changes in society. 3. Understand how to use a philosophy of preventative management to manage the legal environment and minimize the chances of litigation.

9. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Historical Origins of the Law Legalese: Legalese: Common Law – Laws derived from historical customs and usage of a society, and the decisions by courts when interpreting those customs and usages.

10. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Historical Origins of the Law Legalese: Legalese: Civil Law – The body of law (usually in the form of codes or statues) created by governmental entities that are concerned with private rights and remedies, as opposed to criminal matters.

11. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Evolutionary Nature of Common Law Legalese: Legalese: Hospitality Law - Those laws which relate to the industry involved with the provision of food, lodging, travel and entertainment services to its guests and clients

12. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Historical Origins of the Law Common law Common law Civil law Civil law Criminal law Criminal law Changing society Changing society Federal, state, and local Federal, state, and local

13. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Search the Web 1.1 Log on to the Internet and enter www.findlaw.com 1. Select: U.S. State Resources 2. Select: US State Codes 3. Select Your State. 4. Search for categories related to laws regulating tobacco use and sales in your state. 5. Draft a one-paragraph essay summarizing the laws governing tobacco use in your state. Are there any special stipulations that a hospitality manager would especially want to be aware of (such as the designation of smoking and non-smoking areas in a restaurant or public lobby)?

14. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Preventative Legal Management STEM The Tide of Litigation (The Flow or the current Legal process)

15. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What Is STEM? “A process that can be implemented that will reduce employee errors and omissions( Exclusions or leaving out) - and litigation.”

16. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Components of STEM Select Select Train Train Educate Educate Manage and Motivate Manage and Motivate

17. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved STEM the Tide of Litigation Legalese: Legalese: Liable – To be legally responsible or obligated.

18. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Select Select the right employee for the specific job. Select the right employee for the specific job. Cannot just hire anyone at the last minute. Cannot just hire anyone at the last minute. Cannot “just hire” anyone anymore. Cannot “just hire” anyone anymore. Use specific job qualifications, written job specifications, and information derived from a thorough investigation for all candidates. Use specific job qualifications, written job specifications, and information derived from a thorough investigation for all candidates.

19. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Applications Ask job-related and legally acceptable questions. Ask job-related and legally acceptable questions. Review the application form for obvious problems. Review the application form for obvious problems. Note any large gaps in employment, or frequent job changes. Note any large gaps in employment, or frequent job changes. Contact the applicant immediately to answer questions. Contact the applicant immediately to answer questions. Ask the applicant to sign an authorization and release form for checking references. Ask the applicant to sign an authorization and release form for checking references. Don’t just hire anyone, be selective. Don’t just hire anyone, be selective. negligent hiring negligent hiring

20. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Checking the Applicant’s Records Interview the applicant’s former manager by phone to: Interview the applicant’s former manager by phone to: Check the facts on the application form. Check the facts on the application form. Probe for information. Probe for information. Ask about how the applicant interacted with other employees. Ask about how the applicant interacted with other employees. Ask if the employee left on good terms and is eligible for rehire at that company. Ask if the employee left on good terms and is eligible for rehire at that company. Check the applicant’s educational record, credit rating, and criminal convictions. Check the applicant’s educational record, credit rating, and criminal convictions.

21. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Testing Applicants Hiring Tests Hiring Tests Must be legal and valid. Must be legal and valid. Must comply with Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Must comply with Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Must not be biased against anyone because of race, color, religion, age, sex, national origin, or disabilities.(exception: bona-fide occupation qualification). Must not be biased against anyone because of race, color, religion, age, sex, national origin, or disabilities.(exception: bona-fide occupation qualification).

22. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What was the purpose of the American with Disabilities Act 1990? The Americans with Disabilities Act (ADA) became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.

23. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What did the Civil Rights Act of 1964 do? The Civil Rights Act of 1964, which ended segregation in public places and banned employment discrimination on the basis of race, color, religion, sex or national origin, is considered one of the crowning legislative achievements of the civil rights movement.

24. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved A bona fide occupational qualification, also known as : BFOQ, is a characteristic or attribute or quality required for a job that could be considered discrimination if it were not necessary to perform the job in question, or if the job were unsafe for one category of people but not another. Mar 30, 2019

25. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What is an example of a bona fide occupational qualification? One example of bona fide occupational qualifications are mandatory retirement ages for bus drivers and airline pilots, for safety reasons.... While religion, sex, or national origin may be considered a bona fide occupational qualification in narrow contexts, race can never be a BFOQ.

26. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved When age is a bona fide occupational qualification? Bona Fide Occupational Qualifications ("BFOQ"): Under the ADEA, it is unlawful for an agency to discriminate on the basis of age unless the agency can establish that the age limitation is a bona fide occupational qualification necessary to the performance of the duties of the position

27. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What is bona fide job offer? A bona fide offer of employment at a higher rate than the candidate's existing salary must be in writing and must clearly offer current employment, be no more than six months old, and signed by an official with the authority to make the offer.

28. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved For which protected categories are bona fide occupational qualifications allowed? Bona Fide Occupational Qualification. Created by Find Law's team of attorney writers and editors. Discrimination against people based on their race, religion, gender, national origin, age or other protected status is generally prohibited under the laws of the U.S.

29. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved To determine if a policy in hiring or job assignment is discriminatory or legal, the policy is examined to ascertain whether the discrimination is necessary to the normal business operation and whether that category denied inclusion is uniquely unsafe.

30. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Exception to Discrimination Under Title VII, employers are not allowed to discriminate on the basis of sex, race, religion, or national origin. If religion, sex, or national origin can be shown to be necessary for the job, such as hiring Catholic professors to teach Catholic theology at a Catholic school, then a BFOQ exception can be made. discriminate race The BFOQ exception does not permit discrimination on the basis of race. The employer must prove that the BFOQ is reasonably necessary to the normal operation of the business or whether the BFOQ is for a unique safety reason. The Age Discrimination in Employment Act (ADEA) extended this concept of BFOQ to discrimination based on age.

31. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Examples A restroom attendant can be hired taking into account sex because the users of the restroom have privacy rights. In 1977, the Supreme Court upheld the policy in a male maximum security prison requiring guards to be male. A women ’ s clothing catalog could hire only female models to wear women ’ s clothes and the company would have a BFOQ defense for its sex discrimination. Being female would be a bona fide occupational qualification of the modeling job or an acting job for a specific role. However, hiring only men as managers or only women as teachers would not be a legal application of a BFOQ defense. Being a certain gender is not a BFOQ for the vast majority of jobs.

32. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Why Is This Concept Important? BFOQ is important to feminism feminism and women’s equality. Feminists of the 1960s and other decades successfully challenged stereotypical ideas that limited women to certain professions. This often meant reexamining ideas about job requirements, which created more opportunities for women in the workplace.feminism

33. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Train and Educate These two aspects are interrelated. These two aspects are interrelated. Train your employees the right way to perform the task(s) the first time. It is easier to train than to retrain. Train your employees the right way to perform the task(s) the first time. It is easier to train than to retrain. Ensure that the trainer is properly trained himself/herself. Ensure that the trainer is properly trained himself/herself. Remember, it is the evidentiary trail or trace that wins lawsuits, not who is right or wrong. Remember, it is the evidentiary trail or trace that wins lawsuits, not who is right or wrong.

34. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Train and Educate Educate yourself about new trends, technological innovations, laws, and rules and regulations which impact your industry. Educate yourself about new trends, technological innovations, laws, and rules and regulations which impact your industry. Now you are in a better position to train your employees about important changes. Now you are in a better position to train your employees about important changes. You are in a better situation to compete in the industry. You are in a better situation to compete in the industry.

35. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved The Training Trail What was taught? What was taught? Who was taught? Who was taught? How was the training conducted? How was the training conducted? When was the training provided? When was the training provided? How did you determine its effectiveness? How did you determine its effectiveness? The evidentiary trail. The evidentiary trail.

36. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Some Current Litigation Trends Negligent Retention Negligent Retention Negligent Supervision Negligent Supervision Failure to Properly Train Failure to Properly Train

37. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Positive Management and Employee Loyalty How to become a positive manager and build employee loyalty.? How to become a positive manager and build employee loyalty.? Raise employee morale and self-esteem Raise employee morale and self-esteem Reduce turnover Reduce turnover Enhance service Enhance service Enhance customer satisfaction Enhance customer satisfaction Reduce litigation Reduce litigation Enhance the bottom line Enhance the bottom line

38. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Proper Management and Motivation As a Manager - Lead by Example! As a Manager - Lead by Example! Today’s culturally diverse workforce will require diverse motivating techniques. Today’s culturally diverse workforce will require diverse motivating techniques. People are motivated by different things. People are motivated by different things. Find out what it is that motivates your employees. Find out what it is that motivates your employees. Involve employees in the process. Involve employees in the process. Ask your employees how you are doing as a manager. Ask your employees how you are doing as a manager.

39. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Analyze the Situation 1.1 A fellow supervisor and friend confides (confesses) in you that he has been arrested a second time in two years for driving under the influence of alcohol. His current case has not yet gone to trial. This supervisor is responsible for the late-night closing of the restaurant in which you both work. You know bars in your city close at 2:00 A.M., the same time the restaurant closes.

40. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Analyze the Situation 1.1 1. Should you discuss this situation with the restaurant's General Manager? 2. Which aspect of STEM is relevant here?

41. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Ethics and the Law Legalese: Legalese: Ethics – Choices of proper conduct (Manner or Behavior) made by an individual in his or her relationships with others.

42. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Ethical Situation Assume that you are the Food and Beverage Director of a large hotel. You are planning for your New Year’s Eve gala, and require a large amount of wine and champagne. You conduct a competitive bidding process with the purveyors ( Tellers) in your area, and, based upon quality and price, you place a very large order (in excess of $20,000) with a single purveyor.

43. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Ethical Situation One week later, you receive a case of very expensive champagne, delivered to your home with a nice note from the purveyor’s representative stating how much they appreciated the order and that they are really looking forward to doing business with you in the years ahead. What do you do with the champagne? One week later, you receive a case of very expensive champagne, delivered to your home with a nice note from the purveyor’s representative stating how much they appreciated the order and that they are really looking forward to doing business with you in the years ahead. What do you do with the champagne?

44. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Ethical Situation Ethical Analysis Ethical Analysis Your first thought may be the most obvious one; that is, you drink it. But hopefully, you will first ask yourself the seven questions of the ethical decision-making process.

45. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Ethical Decision-Making Process 1. Is it legal? Does either the law or company policy prohibit this activity? Does either the law or company policy prohibit this activity? 2. Does it hurt anyone? Will this action negatively impact any stakeholders? Will this action negatively impact any stakeholders? 3. Is it fair? To all the stakeholders To all the stakeholders 4. Am I being honest? With yourself, and with the company With yourself, and with the company 5. Would I care if it happened to me? 6. Would I publicize my action? What if all the stakeholders became aware of your action? What if all the stakeholders became aware of your action? 7. What if everyone did it? Could the business effectively operate in an equitable fashion? Could the business effectively operate in an equitable fashion?

46. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What Would You Do? Assume that your local municipality is considering the passage of a law that would prohibit the sale of all tobacco products from the interiors of bars and restaurants, but not grocery stores. The restaurant you manage has a cocktail lounge, and cigarettes are both consumed and sold in that section of your restaurant. The restaurant you manage has a cocktail lounge, and cigarettes are both consumed and sold in that section of your restaurant.

47. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What Would You Do? There is no current effort to prohibit smoking in cocktail lounges, such as the one you operate. You are considering whether to address the local government body charged with creating such legislation: There is no current effort to prohibit smoking in cocktail lounges, such as the one you operate. You are considering whether to address the local government body charged with creating such legislation:

48. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved What Would You Do? 1. What are the major considerations you will think about before you decide to support or oppose the proposed legislation? 2. Will the fact that you do or do not smoke influence your position? 3. Which ethical issues are in play here?

49. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Rapid Review 1. Prepare a five-minute training session for your staff that emphasizes the importance of prevention, rather than reacting to, legal liability. Give an example of a situation where this might arise. 2. Give an example, other than the one mentioned in the text, of a recent change in federal, state, or local law that has impacted the hospitality industry. Explain why you believe the law was enacted and whether you believe it was good legislation.

50. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Rapid Review 3. Give a hospitality example of the importance that “selection” makes in the STEM process. 4. Give a hospitality example of the importance of “teaching” in the STEM process. 5. Give a hospitality example of the importance of “education” in the STEM process. 6. Give a hospitality example of the importance that “managing” makes in the STEM process.

51. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Rapid Review 7. A vendor has agreed to clean your hotel carpets at a very competitive price. In a telephone conversation with you, the vendor states that if it gets the contract, will “do your home carpets once a year” as a thank-you. Apply the seven criteria for ethical behavior to this situation. 8. Using the World Wide Web, locate a state law of any type that relates to business operations. Use your search engine to help. Keywords to use include “state,” “laws,” and “business.” Describe the law in a one-paragraph essay.