chapter 1 prevention philosophy. © 2005 stephen c. barth p.c. and john wiley & sons, inc. all...

Chapter 1Chapter 1

Prevention Prevention PhilosophyPhilosophy

© 2005 Stephen C. Barth P.C. and John Wiley & Sons, Inc.

All Rights Reserved

Prevention PhilosophyPrevention Philosophy

The Future Hospitality Manager and The Future Hospitality Manager and the Legal Environmentthe Legal Environment

The Hospitality Manager and Legal The Hospitality Manager and Legal ManagementManagement

Preventative Legal ManagementPreventative Legal Management Ethics and the LawEthics and the Law


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In This Chapter, You Will Learn:In This Chapter, You Will Learn:

1.1. Why a study of laws related to hospitality Why a study of laws related to hospitality is important. is important.

2.2. The historical origins of the law and its The historical origins of the law and its evolutionary nature.evolutionary nature.

3.3. A philosophical framework to help A philosophical framework to help prevent legal difficulties before they prevent legal difficulties before they begin. begin.

4.4. How to evaluate management actions on How to evaluate management actions on an ethical basis.an ethical basis.


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The Future Hospitality Manager The Future Hospitality Manager and the Legal Environmentand the Legal Environment

Unique and diverse operating Unique and diverse operating environmentenvironment

Estimated that 60 - 70 percent of Estimated that 60 - 70 percent of decisions made daily has legal decisions made daily has legal dimensiondimension

Those decisions influence the Those decisions influence the potential for litigationpotential for litigation


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Legalese:Legalese:

AttorneyAttorney - Any person trained and - Any person trained and legally authorized to act on behalf legally authorized to act on behalf of others in matters of the law.of others in matters of the law.


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Legalese:Legalese:

LitigationLitigation - The act of initiating and - The act of initiating and carrying on a lawsuit. Often, used carrying on a lawsuit. Often, used to refer to the lawsuit itself.to refer to the lawsuit itself.


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The Hospitality Manager and The Hospitality Manager and Legal ManagementLegal Management

Legalese:Legalese:

LawLaw - The rules of conduct and - The rules of conduct and responsibility established and responsibility established and enforced by a society.enforced by a society.


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The Hospitality Manager and The Hospitality Manager and Legal ManagementLegal Management

1.1. Know the historical origins of the Know the historical origins of the law.law.

2.2. Recognize that laws have an Recognize that laws have an evolutionary nature, based on evolutionary nature, based on changes in society.changes in society.

3.3. Understand how to use a philosophy Understand how to use a philosophy of preventative management to of preventative management to manage the legal environment and manage the legal environment and minimize the chances of litigation.minimize the chances of litigation.


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Historical Origins of the LawHistorical Origins of the Law

Legalese:Legalese:

Common Law Common Law – Laws derived from – Laws derived from historical customs and usage of a historical customs and usage of a society, and the decisions by society, and the decisions by courts when interpreting those courts when interpreting those customs and usages.customs and usages.


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Legalese:Legalese:

Civil Law Civil Law – The body of law (usually – The body of law (usually in the form of codes or statues) in the form of codes or statues) created by governmental entities created by governmental entities that are concerned with private that are concerned with private rights and remedies, as opposed to rights and remedies, as opposed to criminal matters.criminal matters.


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The Evolutionary Nature of The Evolutionary Nature of Common LawCommon Law

Legalese:Legalese:

Hospitality Law Hospitality Law - Those laws which - Those laws which relate to the industry involved with relate to the industry involved with the provision of food, lodging, the provision of food, lodging, travel and entertainment services travel and entertainment services to its guests and clientsto its guests and clients


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Common lawCommon law Civil lawCivil law Criminal lawCriminal law Changing societyChanging society Federal, state, and localFederal, state, and local


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Search the Web 1.1Search the Web 1.1

Log on to the Internet and enter Log on to the Internet and enter www.findlaw.comwww.findlaw.com1.1. Select: U.S. State ResourcesSelect: U.S. State Resources2.2. Select: US State CodesSelect: US State Codes3.3. Select Your State.Select Your State.4.4. Search for categories related to laws regulating Search for categories related to laws regulating

tobacco use and sales in your state.tobacco use and sales in your state.5.5. Draft a one-paragraph essay summarizing the laws Draft a one-paragraph essay summarizing the laws

governing tobacco use in your state. Are there any governing tobacco use in your state. Are there any special stipulations that a hospitality manager would special stipulations that a hospitality manager would especially want to be aware of (such as the designation especially want to be aware of (such as the designation of smoking and non-smoking areas in a restaurant or of smoking and non-smoking areas in a restaurant or public lobby)?public lobby)?


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Preventative Legal ManagementPreventative Legal Management

STEMSTEM

The Tide of Litigation


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What Is STEM?What Is STEM?

““A process that can be A process that can be implemented that will reduce implemented that will reduce employee errors and omissions - employee errors and omissions - and litigation.”and litigation.”


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The Components of STEMThe Components of STEM

SSelectelect

TTrainrain

EEducateducate

MManage and Motivateanage and Motivate


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STEM the Tide of LitigationSTEM the Tide of Litigation

Legalese:Legalese:

LiableLiable – To be legally responsible or – To be legally responsible or obligated.obligated.


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SelectSelect

Select the right employee for the Select the right employee for the specific job.specific job. Cannot just hire anyone at the last Cannot just hire anyone at the last

minute.minute. Cannot “just hire” anyone anymore.Cannot “just hire” anyone anymore. Use specific job qualifications, written Use specific job qualifications, written

job specifications, and information job specifications, and information derived from a thorough investigation derived from a thorough investigation for for all all candidates.candidates.


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ApplicationsApplications

Ask job-related and legally acceptable Ask job-related and legally acceptable questions.questions.

Review the application form for obvious Review the application form for obvious problems.problems.

Note any large gaps in employment, or Note any large gaps in employment, or frequent job changes.frequent job changes.

Contact the applicant immediately to answer Contact the applicant immediately to answer questions.questions.

Ask the applicant to sign an authorization and Ask the applicant to sign an authorization and release form for checking references.release form for checking references.

Don’t just hire anyone, be selective.Don’t just hire anyone, be selective. negligent hiringnegligent hiring


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Checking the Applicant’s RecordsChecking the Applicant’s Records

Interview the applicant’s former manager by Interview the applicant’s former manager by phone to: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 Ask about how the applicant interacted with

other employees.other employees. Ask if the employee left on good terms and is Ask if the employee left on good terms and is

eligible for rehire at that company.eligible for rehire at that company. Check the applicant’s educational record, Check the applicant’s educational record,

credit rating, and criminal convictions. credit rating, and criminal convictions.


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Testing ApplicantsTesting Applicants

Hiring TestsHiring Tests Must be legal and valid.Must be legal and valid. Must comply with Civil Rights Act of 1964 Must comply with Civil Rights Act of 1964

and the Americans with Disabilities Act of and the Americans with Disabilities Act of 1990.1990.

Must not be biased against anyone Must not be biased against anyone because of race, color, religion, age, sex, because of race, color, religion, age, sex, national origin, or disabilities.(exception: national origin, or disabilities.(exception: bona-fide occupation qualification). bona-fide occupation qualification).


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Train and EducateTrain and Educate

These two aspects are interrelated.These two aspects are interrelated. Train your employees the right way to Train your employees the right way to

perform the task(s) the first time. It is perform the task(s) the first time. It is easier to train than to retrain. easier to train than to retrain.

Ensure that the trainer is properly Ensure that the trainer is properly trained himself/herself.trained himself/herself.

Remember, it is the evidentiary trail Remember, it is the evidentiary trail that wins lawsuits, not who is right or that wins lawsuits, not who is right or wrong.wrong.


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Train and EducateTrain and Educate

Educate yourself about new trends, Educate yourself about new trends, technological innovations, laws, and technological innovations, laws, and rules and regulations which impact rules and regulations which impact your industry.your industry. Now you are in a better position to train Now you are in a better position to train

your employees about important your employees about important changes.changes.

You are in a better situation to compete You are in a better situation to compete in the industry.in the industry.


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The Training TrailThe 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 How did you determine its

effectiveness?effectiveness? The evidentiary trail.The evidentiary trail.


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Some Current Litigation TrendsSome Current Litigation Trends

Negligent retentionNegligent retention

Negligent supervisionNegligent supervision

Failure to properly trainFailure to properly train


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Positive Management and Positive Management and Employee LoyaltyEmployee Loyalty

How to become a positive manager and How to become a positive manager and build employee loyalty.build employee loyalty. raise employee morale and self-esteemraise employee morale and self-esteem reduce turnoverreduce turnover enhance serviceenhance service enhance customer satisfactionenhance customer satisfaction reduce litigationreduce litigation enhance the bottom lineenhance the bottom line


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Proper Management and Proper Management and MotivationMotivation

As a manager - As a manager - Lead by example!Lead by example! Today’s culturally diverse workforce will Today’s culturally diverse workforce will

require diverse motivating techniques.require diverse motivating techniques. People are motivated by different things.People are motivated by different things. Find out what it is that motivates your Find out what it is that motivates your

employees.employees. Involve employees in the process.Involve employees in the process. Ask your employees how Ask your employees how you you are doing as are doing as

a manager.a manager.


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Analyze the Situation 1.1Analyze the Situation 1.1

A fellow supervisor and friend A fellow supervisor and friend confides in you that that he has been confides in you that that he has been arrested a second time in two years for arrested a second time in two years for driving under the influence of alcohol. driving under the influence of alcohol. His current case has not yet gone to His current case has not yet gone to trial. This supervisor is responsible for trial. This supervisor is responsible for the late-night closing of the restaurant the late-night closing of the restaurant in which you both work. You know bars in which you both work. You know bars in your city close at 2:00 A.M., the same in your city close at 2:00 A.M., the same time the restaurant closes.time the restaurant closes.


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Analyze the Situation 1.1Analyze the Situation 1.1

1.1. Should you discuss this situation Should you discuss this situation with the restaurant's General with the restaurant's General Manager?Manager?

2.2. Which aspect of STEM is relevant Which aspect of STEM is relevant here?here?


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Ethics and the LawEthics and the Law

Legalese:Legalese:

EthicsEthics – Choices of proper conduct – Choices of proper conduct made by an individual in his or her made by an individual in his or her relationships with others.relationships with others.


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Ethical SituationEthical Situation

Assume that you are the Food and Assume that you are the Food and Beverage Director of a large hotel. You Beverage Director of a large hotel. You are planning for your New Year’s Eve are planning for your New Year’s Eve gala, and require a large amount of gala, and require a large amount of wine and champagne. You conduct a wine and champagne. You conduct a competitive bidding process with the competitive bidding process with the purveyors in your area, and, based purveyors in your area, and, based upon quality and price, you place a very upon quality and price, you place a very large order (in excess of $20,000) with large order (in excess of $20,000) with a single purveyor. a single purveyor.


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One week later, you receive a case One week later, you receive a case of very expensive champagne, of very expensive champagne, delivered to your home with a nice delivered to your home with a nice note from the purveyor’s note from the purveyor’s representative stating how much representative stating how much they appreciated the order and that they appreciated the order and that they are really looking forward to they are really looking forward to doing business with you in the years doing business with you in the years ahead. What do you do with the ahead. What do you do with the champagne? champagne?


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Ethical Analysis Ethical Analysis

Your first thought may be the most Your first thought may be the most obvious one; that is, you drink it. But obvious one; that is, you drink it. But hopefully, you will first ask yourself the hopefully, you will first ask yourself the seven questions of the ethical seven questions of the ethical decision-making process.decision-making process.


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Ethical Decision-Making ProcessEthical Decision-Making Process

1.1. Is it legal?Is it legal?

2.2. Does it hurt anyone?Does it hurt anyone?

3.3. Is it fair?Is it fair?

4.4. Am I being honest?Am I being honest?

5.5. Would I care if it happened to me?Would I care if it happened to me?

6.6. Would I publicize my action?Would I publicize my action?

7.7. What if everyone did it?What if everyone did it?


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What Would You Do?What Would You Do?

Assume that your local Assume that your local municipality is considering the municipality is considering the passage of a law that would prohibit passage of a law that would prohibit the sale of all tobacco products from the sale of all tobacco products from the interiors of bars and restaurants, the interiors of bars and restaurants, but not grocery stores. The but not grocery stores. The restaurant you manage has a restaurant you manage has a cocktail lounge, and cigarettes are cocktail lounge, and cigarettes are both consumed and sold in that both consumed and sold in that section of your restaurant. section of your restaurant.


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There is no current effort to prohibit There is no current effort to prohibit smoking in cocktail lounges, such as smoking in cocktail lounges, such as the one you operate. You are the one you operate. You are considering whether to address the considering whether to address the local government body charged with local government body charged with creating such legislation:creating such legislation:


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1.1. What are the major considerations What are the major considerations you will think about before you you will think about before you decide to support or oppose the decide to support or oppose the proposed legislation?proposed legislation?

2.2. Will the fact that you do or do not Will the fact that you do or do not smoke influence your position?smoke influence your position?

3.3. Which ethical issues are in play Which ethical issues are in play here?here?


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Rapid ReviewRapid Review

1.1. Prepare a five-minute training session for Prepare a five-minute training session for your staff that emphasizes the importance your staff that emphasizes the importance of prevention, rather than reacting to, legal of prevention, rather than reacting to, legal liability. Give an example of a situation liability. Give an example of a situation where this might arise.where this might arise.

2.2. Give an example, other than the one Give an example, other than the one mentioned in the text, of a recent change in mentioned in the text, of a recent change in federal, state, or local law that has impacted federal, state, or local law that has impacted the hospitality industry. Explain why you the hospitality industry. Explain why you believe the law was enacted and whether believe the law was enacted and whether you believe it was good legislation.you believe it was good legislation.


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3.3. Give a hospitality example of the importance that Give a hospitality example of the importance that “selection” makes in the STEM process. “selection” makes in the STEM process.

4.4. Give a hospitality example of the importance of Give a hospitality example of the importance of “teaching” in the STEM process. “teaching” in the STEM process.

5.5. Give a hospitality example of the importance of Give a hospitality example of the importance of “education” in the STEM process. “education” in the STEM process.

6.6. Give a hospitality example of the importance that Give a hospitality example of the importance that “managing” makes in the STEM process. “managing” makes in the STEM process.


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7.7. A vendor has agreed to clean your hotel carpets A vendor has agreed to clean your hotel carpets at a very competitive price. In a telephone at a very competitive price. In a telephone conversation with you, the vendor states that if conversation with you, the vendor states that if it gets the contract, will “do your home carpets it gets the contract, will “do your home carpets once a year” as a thank-you. Apply the seven once a year” as a thank-you. Apply the seven criteria for ethical behavior to this situation.criteria for ethical behavior to this situation.

8.8. Using the World Wide Web, locate a state law of Using the World Wide Web, locate a state law of any type that relates to business operations. any type that relates to business operations. Use your search engine to help. Keywords to Use your search engine to help. Keywords to use include “state,” “laws,” and “business.” use include “state,” “laws,” and “business.” Describe the law in a one-paragraph essay.Describe the law in a one-paragraph essay.

chapter 1 prevention philosophy. © 2005 stephen c. barth p.c. and john wiley & sons, inc. all...

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