Hospitality Law, May 1, 2008, Thursday

Copyright 2008 LRP Publications

All Rights Reserved

Hospitality Law

May 1, 2008, Thursday

SECTION: Vol. 23 No. 5

HEADLINE: Attendees learn how to protect themselves during hiring process

BODY:

Experts gathered to provide HR information to hospitality industry

LAS VEGAS - More than 600 human resources professionals from the hotel, restaurant and food service industries participated in interactive sessions and learned hot topics in hospitality law from expert speakers at the 2nd Annual National HR in Hospitality Conference & Expo. At the event, produced by Human Resource Executive(r) Magazine and Cornell University's School of Hotel Administration and School of Industrial and Labor Relations, attendees discussed ramifications of the Employee Free Choice Act, learned new strategies for addressing workplace conflict in an effort to reduce the risk of arbitration or litigation, and shared best practices with similarly situated attendees from the United States, Canada and other countries.

"This event has proven itself to be valuable to all who attend, and we are confident that it is an event that will only grow in popularity," said Harry Katz, dean of Cornell University's ILR School. "Attendees loved the interactive, sector-specific sessions for hotel, restaurant and food service practitioners. The six roundtable discussions also were a big hit; they were widely attended and received great praise for the interaction between speakers and attendees, and attendees among themselves."

Hiring issues were among the big legal issues discussed at various sessions during the conference. Attorneys Zev J. Eigen, of McBreen & Senior in Los Angeles, and John Gessner, general counsel of Texas Wings Inc. in Dallas, otherwise known as Hooters, warned attendees to be wary of how much information they uncover about a prospective employee, for fear of violating employee privacy laws.

"With all of the things you can find out legally ... you have to be careful and have to ask yourself, 'Do I need to know this information?'" Gessner warned.

For instance, if an employer discovers that a supervisor is a cross-dresser or that the head trainer is involved in some unsavory activity outside of work, having this information is something that can be brought up by the employee in a discrimination claim.

In addition, that information learned may not even be true.

"When you get into background checks, you have to look at where you are getting your information, who's getting that information, and what you're going to do with it," he said. "You have to look at how good the background check is."

And companies need to consider whether some of the checks they may require - such as drug testing or a credit check - really are necessary.

"Ask yourself, 'Does testing for drugs really have anything to do with what my company does?'" Gessner asked. "If it's a trucking company, it's a safety issue. But if I'm running Bob's Pizza Place, do you care if somebody smoked a little weed last night?"

The same can be said for credit reports. If something adverse comes up and you're going to make a decision based on that negative credit report, you may have to advise the employee on why he was eliminated from consideration during the hiring process.

Eigen said the information learned during background checks can also lead to allegations of violations of laws such as the Age Discrimination in Employment Act and the Americans with Disabilities Act.

"If you don't care about someone's age, why look for it in the first place?" Eigen asked. "With questions you wouldn't ask in an interview, you don't want to engage in a process where you uncover it otherwise."

With the ADA, employers could also be put in a tough spot if they uncover information that reveals someone's disability or potential disability.

"You're charged with that knowledge that you otherwise wouldn't have," he said. "You have to be very careful about weighing the pros and cons of this information."

Electronic recruiting concerns

With the proliferation of hiring kiosks for many food service companies and large hotel chains, human resources professionals need to be wary of the potential legal concerns that can arise from these convenient machines.

Jennifer Brown Shaw and D. Gregory Valenza, partners in the California-based law firm of Shaw Valenza LLP, said hiring kiosks actually present myriad disadvantages for companies during the hiring process.

"Obviously, you're dealing with equipment, so you'll have software maintenance, uploading, compatibility with your HR systems, etc.," Shaw said. "And you don't have the human touch."

But even more importantly, with hiring kiosks, a company may not be able to tell if an applicant is having difficulty with the application process, and whether the machine is causing the company to run afoul of antidiscrimination laws.

"Disparate treatment claims will come up with Internet recruiting and kiosks in ways that are different from a failure to hire that comes up in an interview," Valenza said. "It may be that the kiosk is only set up to deal with people in one language, or that it's not accessible in the proper way to folks with disabilities. The way the system is set up can even have a discriminatory effect."

The 3rd Annual National HR in Hospitality Conference is scheduled for March 16-19, 2009, at Disney's Contemporary Resort in Orlando, Fla., and will build on this year's program. To see the complete agenda and list of speakers who presented at this year's conference, visit www.hrin hospitality.com.

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