Hotels are microcosms of the retail experience. They include overnight accommodations, of course, but many also include restaurants, recreation facilities, and shopping. Thus, there is a daily struggle to meet customer safety and loss-prevention objectives without imposing security that is so intrusive that it harms the guest experience.
Much of the litigation risk posed by internal security is rooted in the need for subjective analysis and discretionary intervention (e.g. who to watch, and when and how to intervene). Shift managers, front desk clerks, bellmen, pool attendants, and security guards confront these questions every day:
- When should they respond to noise complaints by shutting down a party in a guestroom?
- At what point should they intervene in a poolside party that has gotten too wild?
- When should they approach a person who appears to be loitering without a legitimate reason to be on the property?
- When and how should they intervene in cases of suspected shoplifting?
Even honest mistakes in answering these questions can lead to a
perception of discrimination or other inappropriate conduct, and the
resulting lawsuit can sap profitability and lead to devastating
publicity in a sensitive marketplace.
Keeping in mind that applicable laws vary state-by-state and there is no “one-size-fits-all” solution, here are some suggestions to mitigate your litigation risk:
The core of your security program should be a set of policies that guide employee conduct. They also are the first place a plaintiff’s attorney will look for evidence that you have targeted a specific group for disparate treatment, or that you acquiesce in bad behavior by employees. Thus, your security policies should articulate the purpose of the program, explain how it will be implemented, and set minimum and maximum parameters for employee conduct.
Policies that are developed by outside experts based on best practices and industry standards are more likely to withstand scrutiny than are programs developed by company insiders who lack requisite expertise. Regardless of who develops the policies, they must periodically be reviewed to ensure that they remain consistent with prevailing law, evolving best practices and changed market conditions.
It is equally important that your policies are adhered to in practice and consistently enforced. This can be a significant challenge for hoteliers that operate nationally or internationally, but periodic surprise audits can be effective tools to ensure compliance, identify gaps in training, weed out problem employees and defend against charges of acquiescence.
The best programs are developed and implemented by professional trainers, and they involve scenario-based training, role-playing exercises and specific instruction on profiling and the bounds of appropriate physical contact. Initial and refresher training should be provided to all who interact with guests, and there should be defined standards for graduation. Like your policies, your training program must periodically be reviewed and updated.
The constitution of your staff can be a source of litigation risk. A staff that is homogenous although the community is diverse may suggest inappropriate hiring and promotion practices, and a plaintiff’s attorney will use any disparity to argue that your security practices are tainted by discrimination. Take care to ensure that hiring and promotion practices are non-discriminatory and result in a diverse workplace.
Surveillance, Apprehension & Detention
There is a subjective element to security that cannot be avoided, though it invites litigation risk. Consider carefully the criteria that will be used to determine whether to monitor a particular person or location, whether to focus surveillance on particular days or times or at particular events, and whether to shut-down events on your property. Where possible, deploy security resources based on objective data rather than hunches, and initiate surveillance (and, where absolutely necessary, detention) based on non-discriminatory criteria and uninterrupted observation. Apprehensions should be effected away from large crowds if possible, and the use of force should be minimized.
How a person is treated when he interacts with your employees will influence what he does next. Thus, interventions should be discrete, respectful, and efficient, while still being safe and secure. Particular care should be given to the treatment of juveniles. Where bag and body searches are absolutely necessary, they should be “same sex” and witnessed. And when customers complain about mistreatment, take their complaints seriously.
Adequate record keeping is a powerful tool to reduce litigation risk. Generally, your staff should be required to make a contemporaneous written record of any intervention, including a narrative description of the process by which they came to observe, interact with and, where applicable, detain, the guest. These reports should be stored in a central location, and be reviewed by supervisors for sufficiency and identification of possible employee misconduct.
There is no silver bullet to ward off frivolous litigation, but careful attention to the preparation and implementation of your security program can be an effective way to reduce your litigation risk.
Alan M. Freeman is a Partner in the Washington, D.C. office of Blank Rome LLP. His commercial litigation and legal risk reduction practice is national in scope, and he can be reached at Freeman@BlankRome.com.