So, if I send an email to you, and type “Hey, what are you doing later?” there will be electronic information that shows just that.  However, if I had typed “Hey hot pants, nice evening last night.  Glad your wife didn’t catch us.  What are you doing later?”  then thought better of it and “deleted” everything but what remained of the first email, then sent it, I would still be sending far more than just “Hey, what are you doing later?”  How??  Because metadata contains the ghost image of everything that was ever entered and/or deleted on that email.  Sometimes it is no big deal.  But other times, it’s a huge deal. 

Let’s say you have an employment contract with your restaurant manager, Bill.  Bill is extremely good looking, and when you were originally drafting the contract (based on an old form document you copied from some other contract you have used in the past) you jokingly typed in something to the effect that Bill’s job duties would be to provide some rather explicit and illegal services to you (personally) as well as to your best friends.  After a laugh (and maybe after sending it to your best friend as a joke too) the business person in you deletes the silliness and inserts the proper, professional language, and saves it in some program.  In the morning, you email Bill and attach the contract to the email for Bill’s review.  Bill signs it, and begins working for you.  So far so good. 

Time passes. . . sales are way down and you have to let some people go.  There have been a couple of complaints about Bill, but nothing meriting dismissal.  Still, Bill’s salary is high, so you decide to let him go per the terms of the contract.  The next thing you know, Bill is suing you for sexual harassment and discrimination.  WHAT???  How did that happen???

Well, sad to say, Bill didn’t take getting let go lightly, and has decided to sue you claiming that you made his continued employment contingent on a personal, sexual relationship with you.  It’s not true, not one bit of it, but nonetheless you are in court being sued.  Happens all the time, even when you’ve done nothing wrong. 

The attorneys start discovery, and ask for electronic discovery, including drafts of Bill’s contract.  You think nothing’s wrong.  BUT WAIT!!  Here’s where you’ll get tripped up – the computer records of the contract you drafted still have all that metadata (there’s that word), including the since deleted language involving the faux duties of Bill.  So when a copy of that harddrive is made, and an expert gets to that contract, that metadata will be there.  Uh oh.  The opposing side now has evidence that you were seeking sexual favors from Bill, even when you hired him.  Not that you really ever were, it was a joke.  But what will a jury think?  Probably that you fired Bill because he refused you sexual favors. 

This is an extreme example of metadata, but something you need to know about and be careful about in your business.  How does it affect you when you’re not in litigation?  Another simple example:  you have a draft contract you use with most of your vendors.  It has standard language, terms, and dollar amounts that you vary depending on the vendor.  You open the last copy of it you used, you make the changes, and save it as Agreement with Client 1.  You then email your vendor and attach the contract.  You put much more favorable terms (for you) in this version of the contract than you did with the last vendor.   Client 1 gets the email, opens the attachment, then for fun has his daughter (an IT wiz) go through it to see what metadata she can mine off of it.  (Mining data is the term used for finding the metadata.)  Low and behold, the daughter pulls up the old terms, tells her dad, and he now refuses to sign with you unless you match the terms you gave the last vendor.  Not a good thing for you.  

There are ways to avoid this.  For instance, when you use an old version of a document, change it and save it, DO NOT attach the saved document to an email.  The metadata is there.  Instead, print the document, then scan it and save it under another name.  The scanned document does not contain the electronic remnants of the metadata in the computer version of the document.  There are other ways to avoid sending metadata, but they are far more complicated for me to go into here.  Needless to say, you can contact me for more information.  I’m glad to help.  It’s part of what I do to protect you and your business.

So, there’s an extremely simple “primer” on metadata for those who are not IT pros.  It affects everyone of us, whether we know it or not. 

Be smart about your business!

-Elizabeth

My mind always turns to water and water-related activities this time of year.  Last summer and fall, I wrote about cryptosporidium and the problems it was causing in nearby water parks, both manmade and natural.  It seems many in the area have learned from experience and have insured that their facilities will remain crypto-free this summer.   Kudos to everyone for their efforts at keeping our fun water parks and pools safe! 

I also think of far-away water.  I recently visited Little Cayman on a scuba diving trip.  It was beautiful, and I would recommend it to anyone who likes to dive.   I’m not going to write an entry about my fabulous diving experiences and terrific friends, however.  Instead, I was thinking about some of the legal issues cropping up while I was there. 

First, when you arrive and before you even set foot on the dive boat with your dive masters, you have to sign a whole slew of waivers.  OK, I understand they want to protect themselves from liability, especially because some categorize scuba diving as an extreme and dangerous sport.  I read through the waivers, and immediately thought “They can’t enforce this, the indemnity clauses don’t comply with legal requirements, and this waiver is easily bustable.”  But wait a minute – I was not in Texas or even the United States.  I was is the British West Indies, where the laws and legal system are different.   

Second, I got an ear infection while I was there and visited the clinic (the people there were kind and very competent).  The doctor prescribed some antibiotics, sudafed, and an anti-inflammatory (in my case, ibuprofen), and instructed me to stay out of the water for two weeks.  Despite the fact that I was back in the water the next day (it was a diving trip, afterall!!) my ear healed well.  But one thing that surprised me was the medicine bottle containing the antibiotics – there was no label with my name or the doctor’s name on it.  Nothing identifying the correct dosage.  Only the name of the antibiotic was written on the label.  Could that be a legal prescription?  Certainly not here in the United States, but what about in the Caymans?

All of these questions fall under the realm of hospitality law, which is why I am raising them here.  Of course, they also fall under other areas of law, but that is what I find so compelling about the hospitality industry – it covers a huge range of topics and legal issues, which is professionally fascinating for me, and like it or not, relevant to almost everything you do when traveling.  So in future posts, I plan to address the two issues raised above, and to address other issues you might raise from your travels this summer. 

And just so you know, there were absolutely no problems on our dive boat, Holiday Diver II with Dottie and Neal as our dive masters.  Everyone had a splendid time and the waivers we all signed were never made relevant.   As a lawyer, though, I’m always thinking about what could or might happen and how the laws will affect it.  So stay tuned for posts addressing these and other summer travel issues!

In the meantime, stay cool and have safe travels!

- Elizabeth   

With support of the Obamas still at a high level, and people copying them in everything from fashion to phraseology, I’m hoping that this new organic vegetable garden at the White House will spur people on to begin growing their own vgetables and herbs.  It is fairly easy – I do it myself.  I still shop at grocery stores and farmers’ markets for fruits and vegetables, but it is fun and easy to grow your food at home.  You can grow them in your yard, or if you don’t have a yard, some good pots in sunny places will do.   It is easier to start the plants with small versions that have already been sprouted and are available at garden centers and nurseries if the idea of starting your garden from seeds is intimidating.  I have been growing some plants (mostly herbs and some heirloom green beans) from seed and some plants (tomatoes, black berries, butter lettuce, and lemons) in replantings from a nursery.  It is easy and cheap – give it a try.  And think about this – you know exactly what chemicals have been put in and on your food.   You can’t say that about the food at grocery stores and in restaurants, unless you do a lot of research.

While this doesn’t necessarily seem like a legal issue related to the hospitality industry, the source, quality, and safety of our food is a huge issue for all of us, an issue that unfortunately involves a whole lot of regulation, many governmental entities, and legal issues galore.

Give it a try yourself!

Mediation is an out of court process that is used in many jurisdictions around the United States to attempt to settle disputes and lawsuits.  In Texas, where I am, mediation is often ordered by the court before any trial will take place.  Some judges even refuse to hear certain motions (for instance,  motions for summary judgment) until after the parties have attended mediation.  (Although I disagree with that practice as an attorney, I understand that judges taking that stance are really trying to move their dockets along and “encourage” the parties to resolve their disputes outside of court).  Generally, our judges will appoint a mediator to hear the dispute, but will allow the parties to agree among themselves on a mediator to hear their dispute, and the court records will be changed to reflect the mediator chosen by the parties.  

So, what is mediation?  Mediation (similar, but not identical, to arbitration) is an out of court process where parties to a dispute (either a lawsuit, or a dispute that has not yet made it to the courthouse steps) schedule a time to meet with a neutral third-party who is trained and certified (according to your state’s requirements) to assist parties in resolving their disputes.  Mediators are sometimes (but not always) attorneys who have been trained to act as mediators, and who may also maintain their private legal practices (like me).  All mediators are trained and certified, regardless of their professional backgrounds.  Some mediators obtain specified training (such as mediators hearing family law disputes) that allows them to better assist in resolving particular types of disputes.  In the process, the parties usually meet in a conference room with the mediator in what is called a “joint session” here in Texas, and discuss what their dispute is about and their specific positions regarding the dispute.  Usually, then, the parties will move into separate rooms, and the mediator will go back and forth among the rooms with settlement offers and other information that can be shared with the other parties in an attempt to reach an agreement on how to resolve the dispute.  If a resolution is reached, the mediator will then prepare an agreement that the parties will sign reflecting the terms of the resolution.  In Texas, that signed agreement will become a binding legal instrument, and will be treated as a contract in the event that one or more parties to that agreement violate it.   If the dispute does not get resolved, the parties leave in no worse position than when they arrived.

Generally, that is mediation.  It is non-binding (in other words, the mediator will not make a decision on how to settle any given dispute, like a judge, jury, or arbitrator would do.  If the parties can’t reach agreement, the mediation ends and they go back to whatever process their dispute was proceeding under prior to the mediation).   Mediation is extremely useful in these times.  It can be used early on in the lifetime of a dispute to settle a matter that otherwise would not be resolved by the parties speaking with each other directly.  For instance,  perhaps you own a restaurant and your major food supplier has decided that because of the economy, the prices quoted to you and part of your contract with the supplier will have to be raised because the food supplier will go out of business if it doesn’t raise prices.  Unfortunately, this has been a common occurence in the past year with increased production and gas prices.  You and your food supplier now have a dispute.  The supplier is refusing to deliver the products, and you are refusing to pay a higher price than negotiated.  At this point, you can do nothing, find a new supplier (this afternoon!) and hope that your restaurant has enough food on hand that will stay fresh for the time period it takes to find a new supplier, reach an agreement, and get food delivered.  Or, you and the food supplier can call your respective attorneys (if you even have one, or you can start searching for one) and start talking about eventually filing a lawsuit, or at least threatening a lawsuit.  Or, you can agree to attend a mediation session with a trained mediator.  Most people are not aware that you do not need an attorney to engage in the mediation process.  Perhaps you can resolve your dispute without a lawsuit being filed.  It will save you and the food supplier money and perhaps save your relationship with your food supplier because you will not be fighting face to face and hurling insults (as the mediator will be to go between), and the mediator will likely be trained in recognizing and discussing the legal issues that affect your dispute (even issues that you do not recognize) in a manner that can guide both parties to an agreed upon resolution. 

Even if you find yourself in mediation after you are involved in the legal process (at this point, it will likely be court-ordered mediation), mediation can assist in resolving a dispute in ways that attorneys having settlement discussions will not be able to do.  The mediator is a neutral party who does not have an interest in how the dispute is resolved.  Your attorneys (as good as they are) do have an interest (yours) and often find it hard to encourage both you and your adversary and his/her attorney to think outside the box in resolving the dispute.  Your attorney will of course protect your interests in the mediation (that is what they are hired to do), but it is the mediator that has best chance of hearing all sides of the dispute and coming up with a reasonable solution that perhaps none of the parties would have thought of on their own.  I have seen this happen countless times while attending mediations with my clients. 

Even if mediation does not result in a resolution of your dispute, it can be a useful tool in getting the parties to better understand their own legal positions, and more importantly understand the weaknesses of their positions.   Most of my collegues refer to it as a “reality check.”  Both clients and their attorneys can benefit from such a reality check.  Often for the first time, a neutral person is looking at and weighing the merits of the dispute and attempting to find a resolution to which the parties can agree.  I have also personally been involved in mediations (as an attorney) that do not immediately result in settlement, but perhaps over the next week, the parties continue settlement discussions through their attorneys, and a resolution is reached shortly after mediation.  In this way, mediation can be a catalyst to better, more serious and realistic, settlement negotiations.

So there you have it – a little more information on mediation, how it works and what practical use it can provide both before and during a lawsuit.  For more information, please feel free to contact me. 

- Elizabeth

Essentially, the practice is a general civil practice, but it has a large component that is focused on the hospitality industry, an industry under-represented in the legal community.  I continue to enjoy working with clients in hospitality related businesses, as well as clients from outside of the hospitality industry.

I will continue to post items of interest to the hospitality industry in the near future.  As always, if you need legal assistance, coaching, or representation, please contact me.

- Elizabeth

John Fleming, a doctor who owns Subway and Dairy Queen franchises, won by 56 percent of the vote his Republican Party runoff in Louisiana’s 4th District.

The Democrats picked up five seats in the Senate from their Republican rivals. The newcomers include Mark Warner, co-owner of Majestic Café in Alexandria, Va., and one-time governor of his state.  He was  elected to fill the seat that was vacated by the retirement of Republican senator John Warner, who is not a relative.

Restaurant owners or operators returning to Capitol Hill include Rep. John Yarmuth, a co-owner of the Sonny’s BBQ chain, which his brother leads as chief executive.  Yarmuth, a Democrat, beat Anne Northup 57 percent to 43 percent in Kentucky’s 3rd District.

Incumbent Dan Boren, also a Democrat, won the race to represent Oklahoma’s 2nd District in the U.S. House of Representatives. Boren is a co-owner of two Roly Poly wrap restaurants.

Ken Calvert, the Republican incumbent fro California’s 44th District, won, defeating Democratic challenger and former teacher Bill Hedrick. Calvert owns Mill Creek BBQ and Good Fellow’s Cafe and is a former operator of several fine-dining restaurants.

Also joining them in the House next January is Tim Rooney, operator of restaurants and bars at Florida dog racing tracks.

The Employee Free Choice Act (EFCA), if passed, would fundamentally alter how Americans do business by making unionization of a work force an easy and almost automatic foregone conclusion.  To unionize a workforce currently, a private-ballot election, overseen by federal authorities, is required.  Decisions on the ballots by workers are made in the good old election way:  privately.  An employee can privately and in secret vote to unionize or remain free of union control, thus giving an employee effective free choice in the decision, just as in the election this week.  Under the EFCA, privacy is jettisoned and is replaced with a union- favoring process whereby an organizer with signed cards from a simple majority of employees (i.e. anything more than 50%) can bypass the actual election by private ballot to determine whether the work force will become unionized, and instead demand instant recognition as a unionized work force.  HUH???  That’s right, your privacy (or the privacy of your employees) is trampled, because the signing of the cards is done publicly – there is no private or secret ballot allowing you or your employees to freely and privately give an opinion without fear of retribution from others who feel differently.

Easy to see where this new proposed process is fraught with peril:  any bossy or bullying union organizer (perhaps your fellow employee) could put pressure on employees to agree to form a unionized work force.  What if you don’t agree??  We all know that retaliation in the workforce is a reality (I’m not talking about the illegal retaliatory demotions or firings in the employment law realm), especially in workforces that are large.  You (or your employees) could be harassed into signing the cards.  The harassment can even take place at your home.  This prospect has labor bosses salivating. 

If the EFCA passes, get ready for the tsunami of unionization.  The EFCA primarily benefits the unions themselves by leading to billions more in union dues.  This translates to more organizing, more labor relations nightmares, and more political power for the very few running the unions at all levels of government.   Moreover, the EFCA would alter the rules of collective bargaining in a dramatic manner:  once a union is certified, the employer/business will have 120 days to work out a contract.  If the union wishes, it can stall negotiations and invite federal arbitrators to write its provisions, including wage rates, benefits, disciplinary procedures and work rules.  In other words, the business owners will no longer have any say in what they pay their employees, what benefits they will offer to their employees (most often based on what a business can or can not afford), how the business will deal with employees who are not performing or are causing disruption in the workplace, and the rules for the workplace in general.  This strong-arms control away from your human resources department to the binding contract written by governmental hires who have no stake in your business, and usually no knowledge of how your business is successfully run or even what the financial abilities of your business are.  This will inevitably lead to lower profitability and less investment in many different operations.

Moreover, the business may be a liability to the business managers because of underperformance, when business managers have a fiduciary duty to maximize corporate profits.  Profits go down, investors lose money, and shareholders get angry.  They decide to file a class-action lawsuit against the board of directors who failed to stop passage of EFCA and the glaringly clear impact it will have.

The decline in profits is an utterly foreseeable consequence of passage of EFCA.  This should alarm you!  I’m talking about all businesses, not just ones in the hospitality industry.  However, most businesses have been silent, except for the few vocal ones.  Most business leaders are either in the dark about what EFCA really does, or they are unwilling to use their time and precious few resources (compliments of our current economic situation) to keep it from passing. 

An organized effort against EFCA is possible and necessary.  Keep in mind a few statistics:  more than 75% of American workers believe they should have and deserve a secret-ballot process, BUT union political expenditures are expected to surpass the billion dollar mark this election season, which in turn has resulted in a virtual strangle-hold on the Democratic party (the president-elect already indicated that he would support passage of EFCA).  A union-run government is not what businesses need in the current financial crisis, instead, businesses should be free to best determine how to stay in business and turn this econmony around themselves.  We’re a county of rugged individuals who pull ourselves up by our own bootstraps – we should remain that way.        

What do you think?

- Elizabeth

The new law redefines and expands the definition of a disabled person as someone who is unable to perform a major life activity or is significantly restricted in the duration of performance of a major life activity.  “Major life activities” include physical tasks like walking, standing, lifting, eating, and sleeping, and mental tasks such as communicating, reading, and thinking.  Major body functions, such as cell growth, digestive, and reproductive functions are also considered “major life activities.”  The definition of a disability has essentially also been broadened by no longer allowing “mitigating measures”  (such as hearing aids, medications, prosthetic devices) to be considered in determining whether a person is “disabled enough” for ADA protection.  What this means is that a person who can function normally with a hearing aid would not get protection under the current version of the ADA; however, under the new verison such a person will be considered disabled enough for ADA protection, regardless of the fact that with a mitigating device (like a hearing aid) a person is not limited in a major life activity.  Another example is a severely depressed individual who can function normally with medication:  under the current law, the mitigating factor of the medication ”lessens” the level of disability quite possibly excluding that person from the ADA umbrella, but under the new law, the employee would still be considered covered under the ADA, regardless of whether the employee was taking medication that allowed him/her to function normally. 

Presently, employers are able to avoid litigation by claiming that some employees do not qualify for protection under the ADA given the strict interpretations the courts have been making for the reasons listed above.  Apparently, Congress thinks the Courts have gone too far in limiting coverage under the ADA, and want more people to be protected under the law.

Under the new version, it will not be as difficult for the employee to prove that s/he has a right to bring a claim.  Employers still can argue that they had a legitimate and non-discriminatory reason to justify an employment action, but they can no longer count on being able to defeat such a claim before it reaches a trial or jury.  For example, disposing of a claim through summary judgment will not be as easy as it currently is, and it is more likely that a claim under the ADA will end up in a trial.

What this means is that operators and owners (and perhaps HR executives in larger companies) need to update their policies and offer wider accommodations to their employees.  It continues to be wisest to err on the side of caution and consideration in making accommodations.

For those of you wondering whether your business is subject to the requirements of the ADA, the law applies to workplaces with 15 more more employees for at least 20 weeks during a year, including part-time and temporary employees.  If you have any questions, feel free to contact me or post a comment.

- Elizabeth

The bill was unveiled at the National Restaurant Associations’ 2008 Public Affairs Conference in Washington on September 23, 2008, and introduced on the Senate Floor two days later.  It would extend requirements enacted by the Nutrition Labeling and Education Act of 1990 requiring packaged foods to contain nutrition information on all labels or packaging.  The act would force restaurants and grocery chains with twenty or more outlets to make nutrition data for regular menu items available to customers before the point of purchase.  Specials that appear for 90 or fewer days are exempt.

Most importantly, the LEAN Act would pre-empt the current patchwork of earlier state and local menu-labeling mandates and preclude states and localities from enacting tougher rules in the future.  The following are included in the bill:

• restaurants using menu boards would have the choice of listing calories on the board, on a sign next to the menu board, on a sign in the wait queue, or by other means as decided by the US Department of Health and Human Services;
• restaurants with menus could list calories directly on the menu, on a supplemental menu, on a menu insert, or on a menu appendix;
• additional nutrition data (similar to those stated in listings on packaged foods) would have to be avaialbe in writing before patrons reach the point of purchase at restaurants with menus and menu boards;
• restaurants would have to post statements on their menu boards or menus indicating the recommended daily caloric intake for an adult is 2,000 calories.

The LEAN Act would allow one year for drafting of regulations, one year for gathering input and potentital revisions, and six months for compliance.

What do you think?

- Elizabeth

SB 1420 is being hailed as a “compromise measure” by the California Restaurant Association, which pushed for inclusion of provisions for protection of restaurants against lawsuits arising from variances in the nutrition information disclosed from what is actually served.  The Bill preempts all state and municipal labeling regulations.

For the first 18 months (assuming the bill goes into effect next July), restaurants must either post calorie counts on their menus or menu boards, or provide other nutrition information via brochures available upon request.  By January 1, 2011, however, all affected places must have the calorie information posted. 

So, now we have the first statewide menu labeling law.  What do you think?