Guest safety became a serious hospitality industry issue after singer-actress Connie Francis was assaulted in a Howard Johnson’s Motor Lodge in Westbury, Long Island in November of 1974 by a stranger who was able to open a "locked" sliding glass door to her room. Our post-September 11 world renewed the public’s fears about security everywhere, including hotels, which suffered collateral damage in the terrorist attack.
Guests arriving at hotels expect to see the visible signs of enhanced hotel security, from security guards and video cameras to unmarked guestroom keys. Guests assume that they can trust hotel employees to help keep them safe and secure during their stay and count on the staff to be part of the security, and not a risk factor. This sense of security, or the lack of security, is part of the guest experience that may play an important part in a guest’s decision whether to stay at a particular hotel or even with a particular hotel chain in the future.
Violent crimes committed against hotel guests are, fortunately, not a common occurrence. Rarer still are attacks by hotel employees. The nature of our society is now such that these isolated instances generate significant media attention. Although no hotel owner or operator can totally guarantee guest safety or that their employees will never commit crimes against hotel guests, the political response to highly public cases often is an attempt to hold hotels to the standard of almost absolute safety. Currently, there is a movement in state legislatures to require employers to perform criminal background checks on all potential employees. These legislative initiatives are becoming known around the country as "Nan’s Law."
Nan Toder’s Story
During a 1996 business trip, Nan Toder checked into an Illinois hotel. For added security, she locked the door and cautiously placed her fully packed suitcases in front of the hotel room door every evening. What Ms. Toder did not anticipate was that her greatest danger would not come from lax hotel security that allowed a stranger to wander the hotel hallways or even from other hotel guests, but from a hotel manager.
Christopher Richee used his position as a manager at the hotel to access guestroom keys, and he illegally entered Nan Toder’s room as she slept. Richee brutally tortured and strangled her to death. During the murder investigation, it was learned that Richee had a history of criminal behavior, including the unlawful use of a weapon and allegations of stalking a female co-worker. Richee’s employer, the hotel operator, had not performed a criminal background check and therefore, had no actual knowledge of Richee’s criminal past. Richee is now serving a life sentence without parole, for the murder.
In the spring of 2003, the victim’s parents, Sol and Lin Toder, won a $4.6 million judgment against the operator of the hotel who had hired and employed Richee.
The Toder family began an advocacy program to persuade states to enact laws to require hotel owners and operators to perform criminal background checks on all potential employees who would have access to guestroom keys.
Proposed "Nan’s Law" Statutes in General
Dismayed by the fact that there was no legal requirement in Pennsylvania that employers investigate potential employees for past crimes, the Toders began lobbying legislators in their home state. This month, the General Assembly of Pennsylvania held hearings on one version of "Nan’s Law."
House Bill No. 1350 is drafted as an amendment to the Pennsylvania Innkeepers’ Rights Act and states, in part, "(a) General Rule. An innkeeper shall require an individual applying for employment with a lodging establishment who would have access to guestroom keys if employed to undergo a check of criminal history record information."
Although surveys show that many large hotel owners and operators have long performed background checks on hotel staff as a required corporate hiring policy, smaller operators, independent owners and franchisees generally do not perform these background investigations. The Toders plan to continue to fight their cause in Florida and, if they are successful, eventually in all states. They hope that one day criminal background checks of hotel employees will no longer be left to changeable and inconsistent corporate policy, but rather, will be universally required under each state’s innkeeper or employment laws.
Employment Law Implications
Pennsylvania House Bill No. 1350 also addresses the privacy issue of what to do with the information received from a criminal background check. It states, in part, "(c) Use of Information. Whenever an innkeeper is in receipt of information which is part of an individual’s criminal history record information file, the innkeeper may use that information for the purposes of deciding whether or not to hire the applicant only in accordance with 18 Pa. C.S. §9125 and shall provide the applicant notice regarding a decision not to hire as provided in 18 Pa. C.S. §9125(c)." This is a complex area, and employers must fully understand the law in each state where it is doing business. At a minimum, employers should determine whether its employment policies meet statutory background check requirements. In addition to the state law requirements, the federal Fair Credit Reporting Act has similar notification requirements in the event a "no hire" decision is made on a candidate’s application for employment.
With many employees and constant turnover an inherent part of the hospitality industry, enactment of Nan’s Law measures could create another substantial cost of doing business for hotel operators. Hotel operators would be burdened with the administrative costs of performing criminal background checks on every employee with "access" to guestroom keys, and then having a system in place for the proper evaluation of the information received and implementing a decision not to hire an individual. Violation of this law even on a purely technical or minor basis would, in many states, make liability for injury far more likely and in others, a finding of liability automatic. For example, just not performing the background check would itself be a violation of law. That might form a foundation for a separate claim against the owner and the operator, perhaps even supporting a punitive damages claim. It is then not hard to envision that the costs of employment insurance could skyrocket and perhaps become difficult or impossible for some employers to obtain at all.
While it is early in the legislative processing of Nan’s Law, if the Pennsylvania Bill becomes law without some clarification of the hotel’s specific responsibilities and the defining of terms, it will be very difficult for hotel operators to know whether or not they have complied with the law without checking the background of every employee. "Access" to guestroom keys is one of those definitions. What category or group of employees does not have access to room keys? Once the background check is performed, what information can or should determine the hiring decision? Will any prior criminal record disqualify a potential employee for any job in the hotel because that individual might have access to guest room keys?
What to Consider Now
The implications of "Nan’s Law" legislation leave many unanswered questions for hotel owners and operators. The first is "what should I do now, before a lawsuit is filed or a new law passed that may affect both present and future employees?"
A good place to start is to review your current hiring and hotel operations policies and manuals. What is currently required in terms of criminal background checks on all employees working or applying to work in your hotels?
It is also important to determine which employees will have "access" to guestroom keys and how unauthorized employees are prevented from such access.
Consider what costs will be involved and how best to minimize them. Will it be necessary to retain a third-party consulting firm to perform the background check and to inform management of potential issues? That may add a layer of liability insulation, depending on the law in each state. Remember, however, that a hotel manager was convicted of murdering Nan Toder.
The U.S. legal and political systems do a good job of creating new bases for claims against hotels. Nan’s Law may be the next one. Consider it something of a wake-up call and adopt practical policies with respect to background checks and control of access to guestroom keys before you are faced with a claim.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.