Hotels Sued For Violating ADA Online Reservation Policies

ADA plaintiffs have often targeted the hotel industry and Theresa Brooke’s latest round of lawsuits is no different. This time, she is suing hotels over their online reservation policies.

The Department of Justice issued regulations relating to hotel reservation policies that went into effect in March 2012. 28 CFR § 26.302(e) provides that, among other things, hotels must:

 -      modify their policies and practices to allow individuals with disabilities the opportunity to reserve accessible rooms in the same manner as individuals who do not need accessible rooms;

-       describe accessible features in the guest rooms so persons with disabilities can determine whether it meets their accessibility needs;

-       ensure that accessible guest rooms are held for persons with disabilities until all other guest rooms of that type have been rented; and

-       reserve, upon request, accessible guest rooms.

Theresa Brooke’s lawsuits allege that she was not able to reserve accessible rooms while using the defendant hotels’ online reservation platform.

It appears that, until now, only a handful of “online reservation” lawsuits have been filed by plaintiffs over the years. Mrs. Brooke’s lawsuits are unique because she is an Arizona resident filing suit against Denver-area hotels in the U.S. District Court of Arizona.

If she is successful in getting the federal court in Arizona to exercise jurisdiction over out-of-state hotels, it is possible that Theresa Brooke—who has sued more than 550 hotels over the last 24 months—could file suit against thousands of hotels across the country without ever leaving Arizona.

While the Arizona legislature recently enacted tough legislation in an attempt to curb serial ADA litigants, that legislation only affects litigants who are asserting claims under the Arizonans with Disabilities Act (AzDA). Theresa Brooke isn’t bringing AzDA claims; she is choosing to litigate in federal court under the ADA so she is beyond the reach of state law.

A hotel facing a Theresa Brooke lawsuit should do is consult with an experienced and knowledgeable ADA defense attorney. Jennings Strouss has defended dozens of hotels in ADA lawsuits and regularly advises the hospitality industry on ADA compliance measures. 

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Mr. Leavitt represents and advises small and mid-size businesses in employment, landlord/tenant, and general litigation matters. He often serves as a de facto general counsel to business owners, providing practical advice on a variety of legal issues.

Mr. Leavitt's appreciation for small businesses is due, in part, to his own family's entrepreneurialism. His father, brother and wife are all small business owners, providing him with first-hand knowledge of the issues small businesses face, enabling him to better provide clients with real-world and cost-effective solutions. Mr. Leavitt also serves as Chair of the firm’s Food, Beverage, and Hospitality industry group.

Mr. Leavitt can be reached at  602.262.5825 or lleavitt@jsslaw.com.

ADA Plaintiff Theresa Brooke Sues Hotels Over Online Reservation Policies

By: Lindsay Leavitt Attorney, Jennings, Strouss & Salmon, P.L.C.

Theresa Brooke has returned to Arizona and has found a new way to sue hotels for ADA violations. Arizona hotel owners will remember Theresa Brooke—in 2015 she sued more than 125 of them for failing to install wheelchair accessible pool lifts.

Theresa Brooke, an Arizona resident, is now filing lawsuits in the U.S. District Court of Arizona against out-of-state hotels alleging that their online reservation policies violate the ADA. More specifically, she claims that as a disabled woman she should be able to reserve a wheelchair accessible room online.

Federal regulations require public accommodations that operate a place of lodging to modify their policies to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms. See 28 CFR § 36.302(e)(1)(i). This regulation went into effect on March 15, 2012.

Theresa Brooke’s lawsuits demand that the hotels fix the alleged violation and pay her attorney’s fees.

Are there any legal defenses to her claims? Definitely. Many defendants in ADA cases have opted to quickly remedy the alleged violation(s) and then file a Motion to Dismiss alleging the claims are moot—there is no ongoing “case or controversy” if the alleged violation has been resolved.

The first thing a hotel facing a Theresa Brooke lawsuit should do is consult with a knowledgeable and experienced ADA defense attorney. Jennings Strouss has defended more than 275 hotels, commercial landlords and businesses of all size in ADA accessibility lawsuits over the past couple of years. We are available to discuss your lawsuit and/or preventative measures your hotel can take to avoid becoming Theresa Brooke’s next lawsuit.

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Mr. Leavitt represents and advises small and mid-size businesses in employment, landlord/tenant, and general litigation matters. He often serves as a de facto general counsel to business owners, providing practical advice on a variety of legal issues.

Mr. Leavitt's appreciation for small businesses is due, in part, to his own family's entrepreneurialism. His father, brother and wife are all small business owners, providing him with first-hand knowledge of the issues small businesses face, enabling him to better provide clients with real-world and cost-effective solutions. Mr. Leavitt also serves as Chair of the firm’s Food, Beverage, and Hospitality industry group.

Mr. Leavitt can be reached at  602.262.5825 or lleavitt@jsslaw.com.

Serial ADA Plaintiff Theresa Brooke Returns to Arizona

By: Lindsay Leavitt Attorney, Jennings, Strouss & Salmon, P.L.C.

Serial plaintiff Theresa Brooke is back in Arizona filing more ADA accessibility lawsuits. Arizona hotel owners will remember that it was Theresa Brooke who, in 2015, opened the floodgates of accessibility lawsuits—she personally sued more than 100 hotels for failing to install wheelchair accessible pool lifts. For the past eighteen months she and her counsel, Peter K. Strojnik, have been touring California filing hundreds of “pool lift” lawsuits. She ran into problems, however, when California courts questioned her standing to file her lawsuits because she never actually visited the hotels (and therefore did not personally encounter the barriers to accessibility).

With her latest set of ADA lawsuits, Theresa Brooke attempts to get around the standing requirements by alleging that the websites of the defendant hotels (all based in the Denver area) do not allow her to reserve wheelchair accessible rooms online. This is a novel argument—and, if successful, could theoretically allow Theresa Brooke to sue hotels all across the country without personally visiting any of them. Theresa Brooke’s lawsuits are also unique because website accessibility lawsuits are typically brought by a person with visual or hearing impairments. Theresa Brooke has neither.

Theresa Brooke’s first-of-its-kind lawsuits raise a number of legal issues. For example, does the U.S. District Court of Arizona have specific personal jurisdiction over these Denver-area hotels? Courts have generally declined to assert personal jurisdiction solely on the basis of web advertising and instead look to see whether the defendants have more active contacts with a forum.

Regarding the substance of her allegations, whether websites are places of “public accommodation” for ADA purposes is a hot topic right now and courts within the Ninth Circuit have issued rulings on both sides of the argument.  Theresa Brooke’s lawsuits, however, raise a more narrow issue—she is able to access the hotel websites, but allegedly cannot reserve a wheelchair accessible room on the website. As someone who has defended more than 300 ADA lawsuits over the past 24 months—including more than two dozen filed by Theresa Brooke—this is a unique issue and one that I haven’t seen addressed by any court. That being said, the usual ADA defenses of standing, mootness, etc., will still apply to these cases and could be successful.

Accordingly, the first step a business defendant should do after receiving a lawsuit from Ms. Brooke is to contact a capable and experienced ADA defense attorney.   

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Mr. Leavitt represents and advises small and mid-size businesses in employment, landlord/tenant, and general litigation matters. He often serves as a de facto general counsel to business owners, providing practical advice on a variety of legal issues.

Mr. Leavitt's appreciation for small businesses is due, in part, to his own family's entrepreneurialism. His father, brother and wife are all small business owners, providing him with first-hand knowledge of the issues small businesses face, enabling him to better provide clients with real-world and cost-effective solutions. Mr. Leavitt also serves as Chair of the firm’s Food, Beverage, and Hospitality industry group.

Mr. Leavitt can be reached at  602.262.5825 or lleavitt@jsslaw.com.

New Proposed Rules for Arizona Sick Leave Requirements

By: Otto S. Shill, III, Attorney, Jennings, Strouss & Salmon, P.L.C.

Late last week, the Arizona Industrial Commission (the “Commission”) issued a Notice of Supplemental Proposed Rulemaking, adding proposed regulations that clarify several issues under Arizona’s new paid sick leave requirements. Below are summaries of the most significant proposed rules:

Paid Time Off (PTO) policies do not need to distinguish between sick leave and other leave. 

The new proposed regulations provide that when an employee has used available equivalent PTO for either sick leave or other reasons, “the employer may count the usage towards the amount of earned paid sick time taken by the employee to date in the year.” This proposal would lessen employers’ administrative burdens by allowing them to count the first PTO time used as sick leave. Thus, an employer who provides PTO at least equal to the required sick leave reduces the likelihood of having to deal with the carryover of unused sick leave. 

Employers may have an agreed hourly rate for purposes of paying sick leave. 

For employees who are paid on a commission, piece-rate, or fee-for-service basis, employers may pay for an employee’s sick leave benefit at an hourly rate agreed upon between the employer and the employee as the minimum compensation the employee will receive if the employee’s compensation would not otherwise reach that level. The agreed upon rate must at least equal the hourly rate required by minimum wage rules. The proposed regulations provide several other alternatives for determining the rate of pay based on actual compensation paid.

Employers may provide new employees a pro-rated amount of sick leave in their year of hire. 

Employers may limit the amount of sick leave available to new employees by providing them with an estimate of the amount of sick leave they can earn at the rate of 1 hour for every 30 hours worked during their initial partial year of employment if the leave is immediately available to the employee on the employee’s 90th day of employment. This means that an employer using the calendar year as the measurement year for sick leave purposes, who hires a new employee after January 1, may provide that employee with less than the maximum 24 or 40 hours of sick leave by estimating the amount the employee could actually accrue during the remainder of the year, and by making that leave available on the 90th day of employment.

Employers who provide the maximum required sick leave on day 1 can avoid carryover requirements.  

The proposed regulations allow employers who front-load sick leave by making the maximum 24 or 40 hours of sick leave available to the employee on the first day of the employer’s measurement year, to avoid tracking the accrual of sick leave and does not need to allow any sick leave to be carried to a subsequent year.

Planning Pointers. 

In many ways, the supplemental proposed regulations make planning harder for employers. At first blush, they appear to give employers the ability to avoid administrative burdens. However, the proposals, like the Commission’s FAQs, are not entirely consistent with the statute governing sick leave, and could therefore be challenged and found to be unenforceable. For example, under the new proposed rules, carryover requirements are waived if paid time off of any kind that is at least equal to the maximum required sick leave is granted to employees on the first day of the employer’s measurement year. However the statute provides that unused sick leave “shall be carried over.” Also, no mention is made of the fact that some employers may have notice conditions tied to paid time off that do not comply with the requirements for the notice rules relating to sick leave under the statute.

Thus, employers seeking to comply with the new law have two risks in following the positions announced by the Commission. First, the Commission may change its rules. The comment period on these proposed regulations ends on August 8, so we won’t know until after that what the final rules will be. Second, both proposed regulations and final regulations constitute the interpretation of Arizona’s executive branch of government, and a court might not uphold them. ARS § 23-376 authorizes the Commission to “coordinate implementation and enforcement of the statute and to create guidelines or regulations for that purpose.” Nothing in that statue appears to give the Commission authority to promulgate legislative regulations, which would typically have the full force of law. Rather the language suggests that the regulations would be interpretive or procedural regulations. There is a real possibility that some positions of the Commission given in its guidance on these matters could exceed its authority and that courts could invalidate those positions, particularly if they are inconsistent with the statutory language.

Employers must consider these risks carefully in reaching conclusions about how to draft and implement their policies. The most conservative approach would be to maintain policies that correlate directly to the statutory language. If an employer wishes to be somewhat more aggressive, it could adopt the positions allowed by Commission guidance, anticipating that having followed those guidelines would offer some measure of protection against retroactive enforcement should the guidance be invalidated or changed in the future. In any event, employers should consult with their counsel regarding their legal risks and responsibilities as they adapt their policies to comply with Arizona’s new sick leave statutes.

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For more than 30 years, Mr. Shill has helped businesses and business owners comply with government regulations, navigate government investigations, and build wealth through business transactions and long-term planning. He has significant experience in federal and state tax compliance and tax controversies; compensation, benefits, and employment regulation; and government contracting compliance and disputes.

Mr. Shill regularly represents clients before federal and state government agencies, including the Internal Revenue Service, the Equal Employment Opportunity Commission, U.S. Department of Labor (DOL), the National Labor Relations Board, Arizona Attorney General's office, Arizona Industrial Commission, Arizona Department of Revenue and other Arizona regulatory boards. Mr. Shill also drafts and lobbies for the passage of legislation to address client issues.

Mr. Shill can be reached at 602.262.5956 or oshill@jsslaw.com.

Jennings, Strouss & Salmon Ranked Among “Top Companies to Work for in Arizona”

PHOENIX, Ariz. (June 30, 2017) – Jennings, Strouss & Salmon, P.L.C., a leading Phoenix-based law firm, announced it has earned a spot among the azcentral.com “Top Companies to work for in Arizona 2017.” The firm ranked #2 out of 32 in the medium-sized company category of 100-999 employees.

Republic Media, The Arizona Republic, and azcentral.com partnered with Best Companies Group (BCG) and BestCompaniesAZ to produce the fifth annual azcentral.com “Top Companies to Work for in Arizona” program. The methodology for selecting the top companies included a confidential 76-question Employee Engagement and Satisfaction Survey that evaluated company culture and individual employee’s workplace experiences. An Employer Questionnaire was also used to collect information about company benefits, policies, practices and other general information. The combined data was analyzed by BCG to determine the final list of the top 100 companies based on each company’s strengths and challenges.

“I extend a heartfelt thank each and every person at the firm for playing their respective part in making Jennings Strouss a truly special place to work,” stated John C. Norling, Managing Attorney. “In today’s competitive market, it takes more than competitive compensation and a benefits package. Employees deserve a safe, inclusive, and gratifying place to work, and they need to have a voice. We place a high degree of importance on investing in our personnel and providing systems and programs that promote a positive workplace. This recognition is confirmation on how our employees feel about Jennings Strouss and each other.”

About Jennings, Strouss & Salmon

Jennings, Strouss & Salmon, P.L.C., has been providing legal counsel for 75 years through its offices in Phoenix and Peoria, Arizona; and Washington, D.C. The firm's primary areas of practice include advertising and media law; agribusiness; automobile dealership law, bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; legal ethics; litigation; professional liability defense; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit www.jsslaw.com and follow us on LinkedIn, Facebook, and Twitter.

The firm’s affiliate, B3 Strategies, assists clients with lobbying and public policy strategy at the local, state, and federal levels. For more information please visit www.b3strategies.com.