In the May-June 2013, we'll examine coverage for hotels facing fungi and bacteria claims, fraud & recovery, domestic violence in the industry, OSHA and whistleblowers, as well as provide you with updates for our upcoming travel and hospitality events. For more information, please visit http://www.hospitalitylawyer.com.

1. MAY/JUNE 2013 www.HospitalityLawyer.com
INSURANCE COVERAGE FOR
HOTELS FACING FUNGI
AND BACTERIA CLAIMS
+
OHSA AND WHISTLEBLOWERS
EXAMINING FRAUD & RECOVERY
CONFERENCE UPDATES
DOMESTIC VIOLENCE IN THE INDUSTRY

3. Air travel analysts predict that the summer of 2013 will see the most people getting on
planes since the summer of 2007, which means that travel risk management has never been a
more timely topic! Savvy travel managers will keep a close eye on trends as we make our
way through June, July, and August. HospitalityLawyer.com aims to explore this increase in
travel at the 3rd Global Congress on Travel Risk Management, held from September 30 to
October 1 at the Galleria Omni Hotel in Houston, Texas, as part of a comprehensive
analysis of the Duty of Care equation.
The impact of escalating summer travel won’t end there; hotel managers and restaurant
operators have a busy season ahead of them, which means hospitality lawyers will find
themselves on the frontlines of this trend! Learn, adapt, and overcome the challenges you
encounter, and bring your newest experiences and knowledge to the next Hospitality Law
Conference, February 10-12, 2014.
Yes, this means we’re all going to put in a little overtime this summer,
but it also means we’re in the right line of work at a very exciting time!
If you’re interested in sponsoring, attending, or presenting at our
conferences, don’t hesitate to give us a call (713-963-8800) or shoot us
an email. Our door is always open.
PRESIDENT AND FOUNDER, HOSPITALITYLAWYER.COM

4. DEVELOPMENTSHOTELS&RESTAURANTS
Crime Pays: A Conversation of Fraud and
Recovery Chris Giovino Dempsey Partners LLC5
16
Make It Your Business: 3 Reasons Why
the Hospitality Industry Should Address
Domestic Violence Lynn Fairweather, MSW
Presage Consulting & Training, LLC
TRAVEL
15
3rd Global Congress on Travel Risk
Management: Teaser #1 and More!
September 30 - October , 2013
20 2014 Hospitality Law Conference
February 10-12, 2014
11
Insurance Coverage for Hotels Facing
Fungi and Bacteria Claims David P. Bender, Jr.
and Michael J. Stoner Anderson Kill & Olick, P.C.
21 Cussing Out Your Employee May Get You
Sued…By OSHA? Howard Mavity Fisher & Phillips

5. DEVELOPMENTS
Please give us a brief description of your practice.
Occupational fraud and crime is a significant and
growing exposure for all industries, including
hospitality. In recent years, the challenging economy
has helped to drive the incidence of these crimes.
A study by the Association of Certified Fraud
Examiners (Association of Certified Fraud Examiners:
2012 Report to the Nations) found occupational fraud
caused $3.5 trillion in losses. The typical fraud lasted
two years. The median loss was $140,000 and one in
five involved losses was $1 million or more.
However, the good news is that anti-fraud controls,
including hotlines, surprise audits and anti-fraud
training can significantly reduce a company’s
exposure to loss.
5
By Chris Giovino, Partner, Dempsey Partners LLC

6. With these crimes, literally anyone in an organiza-
tion is a potential perpetrator. Criminals range from
hourly employees all the way up to senior manage-
ment, including the CEO. The size of loss correlates
with annual income level, tenure, age, education, and
the level of collusion involved in the crime.
Among perpetrators, 87% were first-time offenders;
36% were considered“living beyond their means,”
and 27% had been experiencing financial difficulties.
However, more often than not, the perpetrator has
done the same thing at one or more former
employers.
Perhaps the most significant potential financial
remedy for occupational crime and fraud is crime
insurance. If your company has insurance, review the
adequacy of coverage and limits. In addition, see if
you have“cost/fee coverage,”which can pay for the use
of outside providers to help investigate a crime. Until
they are victims, many businesses don’t realize they
are woefully under-insured and lack cost/fee coverage.
6
DEVELOPMENTS
FRAUD RISK FACTORS
To help organizations assess their potential
exposure to occupational crime or fraud, the
Association of Fraud Examiners has identified some
key considerations, often called the“triangle”or
“three legs of fraud.”
First, consider the impetus to perpetrate a fraud.
The business driver having to“make a number”
might lead one to manipulate transactions. And
there’s the personal motivation, usually financial
gain or desperation, to engage in theft against the
employer.
Another factor is opportunity: Does a
potential perpetrator have access to assets?
Are controls inadequate or non-existent?
Corporate culture plays a part as well. Even
in a strong outward culture of integrity, the
feeling may be different within specific
departments or functions. Is financial
aggressiveness or risk-taking part of the
organization’s culture or a desired attribute for
a certain class of employees?

7. DEVELOPMENTS
If occupational fraud is suspected, absent any exigent or life-threatening
issues, you might take the following measures:
7
WHAT TO DO IF FRAUD IS SUSPECTED
1. Locate and read the company’s crime or
2.
3.
4.
5.
6.
7.
8.
perpetrators.
9.
THE LOSS ADJUSTMENT PROCESS
Crime claims are unlike other claims for property
damage loss or business interruption loss, or
simple accidental liability matters like car damage.
They are conducted within guideline time
restrictions. There is a frequently exercised
provision for an extension, so, there’s no reason to
rush. While claims may be paid as submitted, the
norm is to be challenged and receive the carrier’s
offer and negotiate. Here’s the typical sequence of
events involved in filing an insurance claim:

8. DEVELOPMENTS
8
1.
2.
3.
4.
5.
6.
7.
8.
MANAGING THE INTERNAL INVESTIGATION: WHO DOES WHAT?
In an internal investigation, the principal leadership roles include:
The risk manager, who oversees the process and communicates directly with the firm’s insurance
broker and/or insurance carrier(s).
The in-house counsel, who manages the internal audit, investigation, litigation, law enforcement
activities, and controls costs.
The investigator and forensic accountant, who conduct the investigation under external counsel
(privilege) umbrella, working with in-house resources, such as internal audit.

9. DEVELOPMENTS
If there is any potential danger surrounding the
circumstances of your loss, call the local police. In
this context“police”refers to the appropriate law
enforcement agency for the specificities of your loss.
While some members of your firm may feel the
police should investigate, it is not always in your
best interest to call too soon.
Nonetheless, your insurance policy may contain a
provision that dictates notifying law enforcement.
Pay attention to whether it is simple notice or
whether you must file a report and refer the matter.
They are very different.
Remember: Once you refer your case, even though
you may be the victim with certain rights, the
investigators likely will make communication a one-
way street. If the matter goes to a grand jury, you
will be precluded from learning anything from law
enforcement.
A crucial decision is when to call and, more
importantly, whom to call. Mistakes in referring your
investigation to the wrong agency or prosecutorial
office can lead to significant frustration.
Understand the complexity and reach of your loss.
Consider that any investigation or search for assets
may be outside the local jurisdiction. If all is in-state
and you have a state police division with strong
investigative acumen, they may be perfect. Some
county sheriffs have excellent investigators. You
need to know.
Often, the complexity and need to reach across state
lines or outside the country will dictate that you
seek federal assistance. The FBI, IRS, Secret Service,
ICE, Marshal Service and the Postal Inspectors have
different priorities, skill sets, thresholds and capacity.
For example, the U.S. Attorneys’Offices have
different thresholds and priorities throughout the
country. Know which agency best fits your loss.
Your forensic accounting and internal investigation
will be important to law enforcement; it provides
them with quantum of loss, witnesses, statements,
evidence and a road map. A symbiotic rapport may
develop between the investigators and your forensic
team. A solid forensic investigation can also provide
law enforcement with leads towards assets which
may be vital towards alternative restitution.
9
WORKING WITH LAW ENFORCEMENT
MANAGING CIVIL LITIGATION
As a practical matter, investigative firms and risk
advisors generally do not advocate law suits.
However, there may come a time when those
investigating the crime will need bank records and
other financial information. Law enforcement will
likely get them from search warrants and grand jury
subpoenas. You will not be able to share in their
good fortune.
The civil subpoena and civil discovery can be
valuable tools used to establish the existence and
amount of loss, including an examination of vendor
business records, employee bank accounts, and shell
company documents.
Typically, civil litigation follows the investigation in
the form of a subrogation action by the carrier. If
litigation is inevitable, getting the process started

10. DEVELOPMENTS
SWORN PROOF OF LOSS
The proof of loss is a series of documents that will
include a detailed narrative flow of what happened
and who did what to whom. That is followed by a
well-documented calculation of the loss. You will
need to provide all source documents.
This is a standard insurance policy requirement.
Note the time requirements for filing the proof of
loss, as well as any possible suit against the
insurance carrier. Also consider how much evidence
is sufficient: Insurers will go to great lengths to
validate and develop the facts.
When a loss occurs, insurance coverage attorney,
David P. Bender, shareholder, Anderson Kill, Ventura,
California, advises businesses to construct a team
“consisting of forensic accountants with experience
in these cases; an insurance coverage lawyer and
other technical experts as necessary to prove proof
of loss.
“Any insured that relies solely on the insurance
company or even law enforcement to prove their
loss will not get the full benefits due them under
their insurance policy,”he warns.
DAMAGES AND QUANTIFICATION OF PROOF
Keep in mind, proof of damages must be actual
calculations and not estimates: Insurers have no
incentive to pay“estimates.” You can use a variety of
approaches to quantify damages, including
historical trends or any statistical anomalies that you
might be able to identify. In filing your claim, be
prepared to defend any assumptions.
CONCLUSION
The hospitality industry finds itself constantly in the
cross-hairs of employees and others who covet and
criminally target the high volume of goods,
foodstuff, liquor, valuables, and cash. The industry
has incredible internal resources, such as security
and audit, to fight fraud and theft. In spite of best
practices, those who want to“take”and who have
been in position to exploit flaws or openings or soft
spots in the best controls will do so and you will
sustain losses.
Preparation is at least as important as prevention.
Those responsible for risk management should
recognize the potential for a loss due to employee
malfeasance and external forces alike. There should
be an exercise to quantify worst-case scenarios as
is done typically for physical damage and business
interruption losses. Then, spend the time to
cultivate relationships within the organization and
create a“go to”SWAT team for that moment when
fraud is suspected or in fact substantiated. Be well
read, provide proper notice, and recover your loss to
the fullest extent.
Chris Giovino,
Partner-in-charge
P: (203) 762-5052 E: chrisgiovino@dempseypartners.com

11. By David P. Bender, Jr. and Michael J. Stoner
One nightmare scenario faced by hotel and
resort executives is dealing with the former
guest who claims that he or she contracted a
fungal or bacterial illness at their establishment.
True or not, the last thing that a hotel or resort
wants associated with its name is“fungus”or
“bacteria.” Yet with the increasingly widespread
usage of social media and anonymous access to
review sites such as Yelp or TripAdvisor, the mere
allegations of“fungus”or“bacteria”can cause
potential guests to, at the very least, take their
business elsewhere. In addition to the public
relation problems, allegations of bacterial and
fungal injuries at a hotel or resort can lead to
expensive litigation and substantial liability.
Too often, though, insurance companies refuse to
defend or settle these types of claims under the
comprehensive general liability policies they have
sold, basing the denial on two common policy
exclusions: a Fungi and Bacteria Exclusion and the
Pollution Exclusion. In such cases, policyholders
in the hospitality industry should be prepared to
fight back. The insurance company’s ability to
deny these claims on the basis of this exclusion
may be more limited than it leads one to believe.
11
DEVELOPMENTS

12. The standard Fungi and Bacteria Exclusion is not
as broad as the name may imply. Endorsed to
many comprehensive general liability policies,
the Fungi and Bacteria Exclusion does not
eliminate coverage for all claims arising out of
exposure to a fungi or bacteria, but only when
the fungi are“on or within a building or
structure…” There are numerous places within a
hotel or resort where a guest could
potentially be exposed to a harmful bacterium
of fungi: Outdoor swimming pools, golf courses,
gardens, spas, parking lots, ski slopes, etc. If it’s
not in a building or structure, it’s not excluded
under the Fungi and Bacteria Endorsement.
“Building”and“structure”are usually not defined
in the standard Fungi and Bacteria Exclusion.
Alert policyholders can employ this vagueness in
their evaluation. Exclusions are construed
narrowly and ambiguous terms are resolved in
favor of the policyholder in most jurisdictions.
Therefore, if there are reasonable grounds to say
that something is not a building or structure,
then it’s not a building or structure with respect
to the Fungi and Bacteria Exclusion. So long as it
is possible that the exposure occurred
somewhere on the property other than a
building or structure, the insurance company will
generally owe a complete defense in the matter.
DEVELOPMENTS
12
FUNGI AND BACTERIA EXCLUSION
POLLUTION EXCLUSION
Perhaps recognizing that the Fungi and
Bacteria Exclusion did not completely eliminate
the potential for coverage, more and more
insurance companies are seeking to expand the
scope of the pollution exclusion to include Fungi
and Bacteria. “Pollution”is often defined as“any
solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapor, soot,
fumes, acids, alkalis, chemicals and waste . . .” As
virtually any substance could theoretically be
shoehorned into that definition by a clever
insurance company, many carriers have
aggressively relied on the pollution exclusion to
limit coverage.
A recent decision by the Eleventh Circuit Court of
Appeals highlights a flaw in the insurance
industry’s reasoning. The court reasoned that
if fungi and bacteria were included within the
scope of the Pollution Exclusion, there would
be no reason at all for the existence of a Fungi
or Bacteria Exclusion. Westport Insurance Co. v.
VN Hotel Group, LLC, 2013 WL 1196957 (11th Cir.
Mar. 22, 2013). Because every claim triggering
the Fungi or Bacteria Exclusion would already
be excluded under the Pollution Exclusion, the
Fungi or Bacteria Exclusion would serve no
useful purpose. Such a result would fail to give
full meaning and operative effect to the entire
policy – a standard rule for interpreting
insurance policies. See id. at * 9. As such, the
Court rightly recognized that the fungus and
bacteria fell outside the scope of“pollutant”
under the policy.

13. DEVELOPMENTS
13
CONCLUSION
Dealing with bacteria and fungus claims can be a
headache for any hotel or resort for many
reasons – but uncooperative insurance
companies should not be one of them. By
understanding the limits of the Fungi and
Bacteria Exclusion and the Pollution Exclusion,
a hotel or resort can substantially increase its
chance of recovery from its insurance company
without the need to resort to expensive
litigation. Of course, given the complexity of
these cases and the nuances of each individual
insurance policy, it is always recommended that
coverage counsel be consulted for any specific
matter.
david p. bender, jr.
managing shareholder
David P. Bender, Jr. (dbender@andersonkill.com) is the managing shareholder in the Ventura, California,
office of Anderson Kill & Olick, P.C. Mr. Bender co-chairs the firm’s Hospitality Industry Practice Group and is
a member of the Board of Directors of the Academy of Hospitality Industry Attorneys. A long-time advocate
of policyholder’s rights, Mr. Bender represents public and private corporations, financial institutions, private
and public educational institutions, and boards of directors.
P: (805) 288-1300 E: dbender@andersonkill.com
michael j. stoner
associate
Michael J. Stoner (mstoner@andersonkill.com), an associate in the firm’s California office, is a member of the
firm’s Hospitality Industry Practice Group. His practice focuses on insurance recovery, corporate and
commercial litigation, and environmental law
P: (805) 288-1300 E: mstoner@andersonkill.com

14. 14
DEVELOPMENTS

16. 16
HOTELS & RESTAURANTS
Make It Your Business
3 Reasons Why the Hospitality Industry Should Address Domestic Violence
By Lynn Fairweather, MSW, Presage Consulting & Training, LLC
As a threat assessment and management
consultant, I often face the challenge of
convincing employers to heed potential workforce
“time bombs”, including those they can’t hear ticking
just yet. Sometimes new clients seek me out because
a“personnel land mine”just exploded inside their
organization, seemingly without warning. The danger
I’m referring to comes from domestic violence, and
unfortunately many businesses don’t realize they
have a problem until an assault occurs on premises,
as it will for one in four large companies. Current
estimates indicate that nearly two thirds of all women
have been physically, sexually, or severely
emotionally abused by an intimate partner. Men can
also be abused, but statistics show that the majority
of victims are female.

17. 17
HOTELS & RESTAURANTS
One study in particular tells us that 74% of abused
women are employed, and for many, the
maltreatment received at home continues at work.1
For example, abusers frequently call victims on the
job to check up on, harass, or threaten them. They
may show up in person to do the same, bothering
or intimidating customers and other workers as well.
In fact, current or former husbands and boyfriends
commit over 14,000 violent incidents in the
workplace each year.2
For the hospitality industry,
the risks may be particularly elevated. Why? First,
hotel lobbies and restaurants are generally open
to public access, making it easier for an abuser to
reach his target. Second, the hospitality field is often
a place where younger, more transient workers find
employment. Many are in lower paid, entry level
positions and more than half are female, all factors
that correlate with victimization. Third, in the
hospitality industry, domestic violence can occur on
a number of fronts, involving line workers,
executives, customers, or overnight guests.
Employers must take action on multiple levels to
prevent violence in their workplace.
Although workplace attacks are never completely
avoidable, there are concrete steps companies can
take to protect employees and customers, while
simultaneously reducing health care costs,
absenteeism, and legal risks. Organizing and
implementing a corporate domestic violence
response program is easier and more cost effective
than you might think. Here are three compelling
arguments for the investment, beginning with the
most urgent:
#1: Safety
Of all the things that could possibly cause a female
worker’s death on the job, from falls to electrocution,
in most years the leader of the pack is homicide. In
roughly 20% of these murders, the alleged killer was
the victim’s current or former intimate partner.3
Such
was the case in Orlando, FL on September 27, 2012.
That was the day Michelet Polynice brought a
handgun to the Quality Suites Inn where his ex-girl-
friend Carlene Pierre was working at the front desk.
Two weeks before, Polynice had been served with a
restraining order for hitting Carlene with his car in
the hotel’s parking lot. Carlene and her co-worker
Vanessa Gonzalez-Orellanes were shot and killed
instantly. Polynice then drove to the Westgate Lakes
Resort parking lot where he shot and wounded
Carlene’s best friend Jean Guerline before killing
himself. This tragedy is, of course, a worst case
scenario, but its occurrence proves that such an
attack (or even a larger one) could be looming just
around the corner.
Research has shown that most corporate security
directors are already aware of the threat domestic
violence in the workplace poses. In fact, in a recent
survey, 94% of them ranked domestic violence as a
high security problem at their company. 4
Yet oddly,
another study found that although a significant
majority of corporate executives recognized the
devastating impact of domestic violence in the
workplace, only 13% thought their company should
address the problem. 5
If the safety of their
employees and the general public is not enough
to sway the C class, perhaps this next point will get
their attention:

18. 18
HOTELS & RESTAURANTS
#2: Cost
Being abused at home (and possibly at work) can
result in a number of problems for employees, and
thus multiple costly issues for their employer. For
example, a victim of domestic violence may sustain
injuries, causing them embarrassment and pain
which then produces absenteeism and health care
costs for their company. When they do return to
work, they may arrive late or leave early, because
their abuser has kept them up all night or sabotaged
their childcare and transportation plans. While on
the job, victims can suffer from anxiety, humiliation,
and an inability to concentrate, due to threatening
phone calls or visits from their abuser. The victim’s
co-workers experience difficulty when these things
happen as well, because they may be worried for
her safety, frightened for their own, or resentful
that they have to take up her extra work. Over time,
these concerns can produce low morale and a high
turnover rate. When translated to dollars, the cost of
abuse becomes colossal: U.S. employers collectively
pay out more than $5.8 billion each year in lost
productivity, absenteeism, and health care costs
related to domestic violence.6
Employee victimization isn’t the only part of the
equation that affects your bottom line. Although
you may not know who they are, statistics say there
are probably batterers working for your company
right now. And according to one study, their abusive
habits often crossover into the workplace. In
addition to displaying bullying tendencies and
aggressive behavior on the job, 78% of them
admitted to using company resources and
equipment to harass, threaten, or check up on their
victim.7
Furthermore, 42 percent admitted being late
to work, and 48 percent had difficulty
concentrating on the job as a result of their abusive
behaviors.8
Curious about how much domestic violence may be
costing your company? Check out the Texas Health
Resources Domestic Violence Cost Calculator at
https://www2.texashealth.org/dv/. Your
accountants may be in for an expensive surprise.
#3: Liability
If you’re starting to see the benefits of addressing
domestic violence, but still aren’t sure you could get
company wide buy-in, consider bringing on the only
team members who might seal the deal: the
corporate lawyers. Attorneys have a keen
understanding of liability issues, and therefore can
help to drive home the following point: neglecting
to take action against domestic violence could leave
your company open to massive legal and financial
risk. To begin with, there is the General Duty clause
of the Occupational Safety and Health Act of 1970,
which says employers must take steps to protect
their workers from acts of violence. If the employer
fails to do so, the result may be a substantial OSHA
fine, or worse. Jury awards for inadequate security
suits average $1.2 million nationwide and
settlements average $600,000.9
Considering that
domestic violence makes up a quarter of all
workplace violence, it’s an area well worth an
employer’s focus.

19. HOTELS & RESTAURANTS
For example, when Francesia La Rose’s employer
State Mutual Life Assurance Co. failed to take
adequate action to protect her against a specific
threat, they paid in both blood and money.
Francesia was murdered by her former boyfriend
at her work site, causing not only heartbreak for
her family and trauma to her co-workers, but an
$850,000 settlement by the company as well.10
Other legal considerations include the possibility of
a discrimination claim, an Americans with
Disabilities Act complaint, or a wrongful termination
lawsuit from a victim who has been fired, not hired,
or passed over for a promotion due to the fact that
he or she is a victim of domestic violence. A
company can also be sued if it is determined that
they violated a victim’s privacy, ignored harassment
from other employees toward the victim, imposed
substandard or punitive job changes, or failed to
allow a legitimate absence under the Family Medical
Leave Act.
Don’t forget about those batterer employees either.
Successful lawsuits in many states have proven that
companies can be held liable for the dangerous acts
of employees if they don’t use reasonable care in
hiring, training, supervising, or retaining them when
harm was in any way foreseeable.
A final but significant point for the hospitality
industry to consider is that they are responsible not
only for their employee’s safety but also that of
customers, guests, and others invited onto their
premises. For instance, if a hotel desk clerk issues a
copy of a woman’s room key (without permission) to
her estranged husband, who then enters the room
and harms her, the hotel can held accountable.
And no one wants to imagine the cost in lives and
lawsuits that could accompany a domestic violence
related mass shooting in the workplace.
As leaders of our country’s workforce, directly or
indirectly employing 1 out of every 17 Americans,
the hospitality industry is in prime position to effect
change and take a stand against domestic violence.
Not only might lives be saved, but individual
companies could profit through both hard and soft
benefits. If you are considering addressing domestic
abuse within your workplace but don’t know how to
begin, please read part two of this article in the next
issue when I explain the steps required to create an
effective, in-house domestic violence program.
REFERENCES
1) Report on Costs of Domestic Violence, Victim Services of New
York, 1987.
2) Workplace Crime 1992-1996, Bureau of Justice Statistics, July
1998.
3) Bureau of Labor Statistics’ (BLS) Census of Fatal Occupational In-
juries (CFOI) 2003 and U.S. Department of Labor, Women’s Bureau,
Facts on Working Women, No. 96-3, October 1996.
4) Domestic violence can become public matter in the workplace.
Amy Pavuk and Arelis R. Hernández. Orlando Sentinel, Orlando, FL.
September 28, 2012.
6) The Cost of Violence in the United States. 2007. Centers for Dis-
ease Control and Prevention, National Centers for Injury Prevention
and Control. Atlanta, GA
7) Employers Against Domestic Violence. http://employersagainst-
domesticviolence.org/effects-on-workplace/workplace-dv-stats
8) Maine Department of Labor. 2004. Impact of Domestic Offenders
on Occupational Safety & Health: A Pilot Study.
9) Perry, P. 1994. Assault in the workplace. Law, May 1, 41.
10) Burke, D.F. January, 2000. When employees are vulnerable,
employers are too. The National Law Journal.
lynn fairweather, MSW
PRESIDENT
P: (503) 956-5444 E: lynnfairweather@ymail.com

21. 21
HOTELS & RESTAURANTS
Cussing Your Employee Out May Get You Sued...
By the OSHA?.By Howard Mavity, Partner, Fisher & Phillips
Hopefully you’re already aware of the continuing
escalation of all forms of whistleblower and
retaliation claims, including under the 20+
Anti-Retaliation laws enforced by special
investigators from OSHA’s Whistleblower group.
If not, check out www.whistleblowers.gov.
One of OSHA’s recent news releases states that the
Labor Department has filed a lawsuit in the federal
district court against Duane Thomas Marine
Construction, and its owner Duane Thomas, for
terminating an employee who reported workplace
violence, in violation of Section 11(c) of the OSH Act.
Sounds fairly standard.
OSHA asserts that an employer fired an employee for
complaining about unsafe work conditions. It’s a bit
unusual to hear that the alleged unsafe conditions
involved fear of workplace violence, but who can
blame an employee in the current environment? But
as you read on, it turns out that the complained-of
hazard was the owner!

22. HOTELS & RESTAURANTS
When the Owner is the Hazard
The employee alleged that, on numerous
occasions between 2009 and 2011, Mr. Thomas
committed workplace violence and created
hostile working conditions. He allegedly behaved
abusively, made inappropriate sexual comments
and advances, yelled, screamed, and made
physically-threatening gestures, in addition to
withholding the employee’s paycheck.
The employee, who worked directly for
Thomas, reported to him that he was creating
hostile conditions. On Feb. 25, 2011, the employee
filed a timely whistleblower complaint with OSHA
alleging discrimination by Thomas for having
reported the conditions to him.
On March 18, 2011, Thomas received notification
of the complaint filing. Five days later, Thomas had
computer passwords changed in order to deny
the employee remote access to files and then
terminated the employee. OSHA’s subsequent
investigation found merit to the employee’s
complaint.
And we’re not just talking reinstatement: OSHA
seeks back wages, interest, and compensatory and
punitive damages, as well as front pay in lieu of
reinstatement. Additionally, it seeks to have the
employee’s personnel records expunged with
respect to the matters at issue in this case and to
bar the employer against future violations of the
OSH Act. Wow…. But first, the usual caveat: we
don’t know all the facts.
The employer may have really behaved badly and
given the complainant the ability to make out a
viable claim. Or, the employee may have
exaggerated, or even made up the whole thing.
But while I have yet to see an employee lawsuit
that was completely accurate, there must be at
least some pretty bad facts to make OSHA take
the action it did.
Lessons and Action Points
howard mavity,
partner
P: (404) 231-1400 E: HMavity@laborlawyers.com
This atmosphere may or may not have
presented a valid safety hazard, but guess what?
Under the law, the violation is the act of
terminating the employee for complaining about
a safety concern. The concern does not have to be
valid! (There is a different standard if the
employee refuses to work because of an
unfounded and unreasonable concern).
For all we know, the employee could have
annoyed his boss with unfounded complaints
until the boss fired him in a moment of anger…
but that too is a potential violation.
Our advice: eliminate from your vocabulary the
two phrases:“Boys will be boys,”and
“You had to be there.” The problem is that lawyers
and Uncle Sam will also be there if one’s conduct
is foolish enough.
Train your supervisors to behave professionally
regardless of the setting, and remind them of all
the many behaviors, including some of the
offbeat ones, that are protected as
Whistleblowing.

23. The Venza Group and Hospitality Evolution
Resources are joining forces to develop the first
robust and insightful training curriculum
dedicated to the hospitality industry on the topic
of protecting“Personally Identifiable Information”
(PII). Scheduled for launch June 2013, the
initial 4-pack of online training modules will teach
hospitality staff about the crime of identity theft
and the subsequent importance of protecting
guest data – including the risks and consequences
of guest data breaches along with steps to take
to better safeguard the personal information of
guests, employees, executives, and hotels.
“We are pleased to be partnering with the leading
hospitality online training provider, The Venza
Group, to drive this initiative. Training hoteliers
and hospitality staff about the importance of
protecting Personally Identifiable Information or
PII is a top line priority in 2013”said Evelyne
Oreskovich, President of Hospitality Evolution
Resources.“The industry is realizing that PCI
compliance is just the tip of the iceberg.
Encrypting credit card information is the first step
and protecting valuable identity information
typically tied to hotel guest data is next. Often
stored in raw, unprotected files, staff regularly
shares PII both internally as well as externally; this
unique curriculum truly offers the first hospitality
driven course and presents the topic in detail from
the victim’s perspective, while educating staff on
the hotel’s liability. It is also the first system
developed by the hotel industry for the hotel
industry.”
“Our team is excited to announce this partnership
as we continue to focus on the development of
online training modules with the hotelier in mind,”
said Daniel Johnson, COO of Venza Group.
“Hospitality Evolution Resources brings an
incredible wealth and depth of knowledge with
regards to privacy information awareness from
the hotel perspective. We are sharing this
groundbreaking training curriculum in a very
consumable package that is far more robust than
any other such program developed to date. We
are thrilled to present this exciting new level of
information on the topic of PII to the world.”
23

24. The four initial training modules that comprise the new
“Personally Identifiable Information”Curriculum include:
1. Introduction to PII: This essential PII introductory
course is designed for all team members. It defines
“Personally Identifiable Information”(PII), describes the
crime of identity theft and highlights how identify theft
can personally impact employees. Participants will learn
how thieves get access to PII (PII is compromised online
and offline as well as via third parties); procedures for
protecting employee and guest data; employee
responsibilities; tips and best practices for protecting
employee and guest PII; as well as consequences to
hotels and employees if breaches occur.
2. PII for Guest-Facing Staff: Whether part of the
Call Center team or Reservations, Front Desk or Food &
Beverage staff, this module teaches all those involved
with point of sale or guest-facing services about how
much PII they are exposed to every day. This course will
train participants where threats exist in their day-to-day
jobs, review possible scenarios and reflect on common
practices that may benefit thieves, as well as identify the
best practices that should be employed by point of sale
staff to ensure safety of PII.
3. PII for Sales & Marketing: This module addresses
the growing fear of privacy violations and identity theft
vs. the need for customer recognition and effective
CRM in the hotel industry. Specifically created for Sales
and Marketing team members, this course more clearly
defines the types of hotel data that can be considered
PII. Participants will learn the dangers, mistakes and best
practices for using PII both internally and externally with
third party vendors. The course also uncovers lesser
known issues surrounding hosting guests from foreign
countries, and reviews the overall impact and
consequences of PII breaches, including current lawsuits
in the industry, negative press, liabilities and
terminations.
4. PII for Executives: With the increasing focus on
commercial entities by the media and government
agencies, this training program addresses the roles and
responsibilities of hotel executives with regard to
protecting guest PII. The module reviews statistics
about privacy violations and identity theft in the hotel
industry, uncovers legal concerns and legislation, and
touches on Human Resource requirements. Participants
will review examples of how PII is compromised
(onsite, offsite, via third parties); learn about laws
affecting guests from certain states and other countries
regarding how long their data can be stored
post-departure; as well as develop an understanding for
how the Federal Trade Commission protects privacy for
consumers. Executives will learn real world best
practices including: How to securely share and store
data; how to train staff on PII policies; as well as the
basic risks, mistakes, and consequences of breaches.
This innovative PII online training curriculum consists
of four standard modules described above and will
be available in June, 2013. Three additional a la carte
modules on the topics of PII for Human Resources,
Accounting & Finance, and IT & Security are in the works
- projected for completion in July, 2013. For additional
information or to explore pre-launch promotional
pricing call 770-685-6500.
Founded in 2008, the Venza Group® bridges the gap
between technology and user competency for the travel/hos-
pitalityandretailindustriesworldwide.Softwareprovidersand
hotels leverage the Venza Group’s expertise and unmatched
passion for service to
achieve system adoption
and maximize operational
efficacy. Armed with keen
industry knowledge and
a suite of products (e.g. Bridge™ and the PEAK™ Compliance
and Performance training series), the Venza Group generates
results. More than 5,000 hotels in over 100 countries look to
the Venza Group for tools, technology and strategic thinking.
Hospitality Evolution Resources (HER) provides a
comprehensive array of services and solutions dedicat-
ed to the Hospitality industry including expert project
management, clear thought-leadership, strategic vision, gap
analysis, RFP design, vendor vetting and training. Led by
award-winning industry veterans with knowledge in diverse
areas of the lodging business, HER provides Hospitality-relat-
ed companies with “solutions that pack results” — effectively
bridging the gap be-
tween Management,
Operations, Technol-
ogy and Marketing
to motivate teams,
improve productivity, lower costs, and increase revenue. The
company additionally enjoys acclaim for its robust training
curricula focused on a range of Hospitality focused topics
including Distribution and PII security. For additional
information,visitthecompany’swebsiteat
www.HER-Consulting.com.
HOTELS & RESTAURANTS

25. 25
FIND-A-LAWYER
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for your company?
Check out HospitalityLawyer.com’s
Find-A-Lawyer database to locate
national and international attorneys
with experience in the hospitaliy
industry. You can search by country,
state, industry area, and practice area.
Visit us at www.HospitalityLawyer.com
for more information.
Attorneys, join the Global Alliance of
Travel, Tourism & Hospitality
Attorneys (GATTHA) to receive:
Global exposure to the hospitality
community
Listing in Find-A-Lawyer on our
website
Branded article placement in our
publications
Access to white papers, forms,
checklists, and more
Discount for the annual Hospitality
Law Conference
SolutionsStore
The HospitalityLawyer.com Solutions Store offers a variety of safety and security
products, services, and solutions from companies with solutions specifically for
hotels, restaurants, and country clubs. Visit www.HospitalityLawyer.com for more info.

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