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Entries in legal (7)

Tuesday
May232017

How to Keep Kids Safe at Your Club

There are many reasons to offer kids fitness programs and child care within your club. However, it’s important that you and your staff are well prepared for the risks associated with developing these types of programs. The American Academy of Pediatrics estimates that, every year, about 3.5 million children under the age of 14 are injured while playing sports or participating in other recreational activities. Even though many of these injuries occur outside of a club setting, it is crucial to be aware of the unique safety and legal issues you could face when working with children.

Continue reading "How to Keep Kids Safe at Your Club."

Click to read more ...

Friday
Feb032017

The Affordable Care Act is Still Alive and Your Club Should Abide

Donald Trump has been sworn-in as the 45th President of the United States and Congress has begun to dismantle the Affordable Care Act (ACA), but that doesn’t mean you can ignore the filing deadlines for the ACA. To help clarify what your legal requirements are under the ACA during this time of transition, we have taken a look at the ACA requirements and provided you with a primer on what you still need to do when.

Continue reading "The Affordable Care Act is Still Alive and Your Club Should Abide."

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Thursday
Dec222016

'Tis the Season for Gift Certificates... Health Clubs Beware!

This post was originally published in the IHRSA Advocate.

According to the National Retail Federation, Americans are expected to spend $27.5 billion on gift certificates this holiday season, making them the second most popular gift after clothing and accessories. Gift certificates are frequently used to sell everything from clothes and electronics to personal training sessions and classes. While gift certificates may be a great opportunity for health clubs to boost end-of-year revenue, there are traps for the unwary.

SoulCycle Washington D.C. (Picture P. Bedford)

SoulCycle has become embroiled in a potential class-action lawsuit—Cody, et al v. SoulCycle, Inc.—over its handling of classes sold in packages ranging from one class to 50. The cycling packages come with different expiration dates depending on the number of classes purchased. A single cycle class expires after 30 days, while 50 class packages are good for 12 months.

The customers suing SoulCycle claim that the class packages are actually gift certificates and the short expiration dates result in lost money for consumers and unjust gain for SoulCycle—in violation of state and federal law. Federal law prohibits the sale of gift certificates that expire in less than five years, while California Civil Code prohibits the sale of gift certificates with any expiration at all.

SoulCycle filed a motion to dismiss the case arguing that their class packages could not be applied toward the purchase of a more expensive good or service and therefore should not be treated as gift certificates. U.S. District Court Judge George King granted SoulCycle’s motion to dismiss the claim of a state law violation but denied the motion to dismiss the federal claim, meaning the class-action lawsuit will advance.  

While the ultimate outcome of the SoulCycle case will not be know for some time, it serves as a good reminder that if you sell gift certificates or are considering doing so, that while there may be no better time of year to sell them, make sure you know the rules of the road when doing so. For instance, some states mandate that merchants provide cash back when the gift certificate balance is low. In California, gift certificates with a cash value of less than $10 are redeemable in cash. It is important to be aware of the gift certificate laws where you operate. If you have questions or comments, please send them to gr@ihrsa.org.

Monday
Oct242016

Managing the Sticky Wicket of Social Media

It’s agreed. Social media can be a great tool that IHRSA clubs can use to grow their membership base, as well as retain loyal customers, by connecting with them and creating “buzz” around their programs and services.

However, the public, uninhibited nature of this communication mode can pose some major challenges for club operators. What problems are most likely to occur? Here are some hypothetical scenarios that could arise in your club, and what you can—and can’t—do under the law as it stands right now.

Situation #1: Sherri S. and Christine E. are Zumba instructors at ClubFun. While Sherri loves her work, she feels that the club could be more orderly, and that she’s not getting enough break time. But, instead of speaking directly with her manager about these issues, she voices her complaints to Christine through social media, tweeting, “Not too much to ask to keep facilities neat and give employees the breaks they deserve!” The next day, Sherri’s manager says the tweet was disrespectful, and he’s considering whether or not to retain her as an employee after her sarcastic outburst.

Question: Can an employee be terminated for what a company sees as misuse of its social media accounts?

Answer: No. The National Labor Relations Board (NLRB) prohibits restrictions on union and non-union employees because their concerted activity is protected. Individuals are allowed to talk about conditions of employment to co-workers, even if that conversation takes place on social media.

The NLRB has issued a number of judgments in this area. One of the most recent dates from March 2016, when an administrative law judge ruled that Chipotle violated the law by applying an unlawful social media policy that required an employee to delete tweets from his personal Twitter account. 
One of the tweets that Chipotle asked to be deleted arose from a customer tweet, “Free Chipotle is the best thanks.” The employee responded, “Nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really [sic].”

Situation #2: Tom B. is a dedicated member of the marketing team at SocialFit. As part of his role, Tom is active on Twitter.

He constantly tweets with exuberance and excitement, discussing the benefits of club membership with all of the company’s followers. Tom occasionally tweets during off-hours to engage followers who may have missed specific posts, and asks to be compensated for the additional promotion he’s been doing for the club.

Question: Should employees be paid for the work that they do on social media after work hours?

Answer: Thanks to federal and state hour and wage guidelines, the answer is—it depends. The first thing to determine is whether Tom B. is exempt from overtime requirements. If he is, then the salary he’s being paid covers tweets after regular work hours. Exempt employees are paid to complete their job duties, regardless of the number of hours.

If, however, Tom B is an hourly employee, then federal (and many state) wage and hour laws prescribe that he must be paid overtime for hours worked that exceed 40 per week.

In this era of smartphones and remote access to networks, it’s easy for a grey zone to exist when an employee is “off the clock” and away from the club, but still has the ability to send out social media posts.

Therefore, it’s very important for employers to create a clear policy that addresses whether or not work done outside of working hours is allowed.

Monday
Aug222016

Will Your Health Club's Social Media Policy Get You Sued?

The following was written by Helen Durkin, JD, executive vice president of public policy for IHRSA. 

Put yourself in the place of Chipotle Mexican Grill—an American fast food restaurant chain. 

A customer tweets “Free Chipotle is the best thanks.” A Chipotle employee replies from his personal social media account and says “Nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” The employee then also posts more tweets commenting on both the hourly wage and lack of snow days for hourly employees. Chipotle responds telling the employee that the tweets violate the company’s social media policy and tells him to delete them. Chipotle terminates the employee (for other reasons). 

Spoiler alert—this story does not end well for Chipotle. The National Labor Relations Board (NLRB)—a U.S. government agency focused on union representation, but also charged with investigating and remedying unfair labor practices—said not so fast, Chipotle.

The NLRB is increasingly scrutinizing employer social media policies and the actions employers take to regulate social media posts by their employees. According to the NLRB, the rationale for this scrutiny is the National Labor Relations Act, which “protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter.” 

Let’s take a deeper dive into the Chipotle case and look at the implications for club operators. 

The National Labor Relations Board Administrative Law Judge (ALJ) hearing the case against Chipotle ruled in March 2016 that Chipotle violated the law when it used an unlawful social media policy to require the employee to delete tweets from a personal account and tell him not to engage in such action in the future. The ALJ paid particular interest to two provisions of Chipotle’s social media policy: 

“If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”

“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

The ALJ ruled that the first provision was okay but had problems with the second. It found that provisions that prohibit “derogatory statements” cannot be overly broad and impact employees’ rights to work together to improve their pay and working conditions. The ALJ commented on the false statements noting that “more than a false or misleading statement by the employee is required; it must also be shown that the employee had a malicious motive.”

So what do you do now? If you do have a social media policy, it is a good idea to have it reviewed by an attorney. If you modeled your policy after the social media used by a large company, don’t believe that makes you safe. The NLRB is increasingly finding elements of large company’s social media policies illegal.  If you are just considering implementing a social media policy or want to review your current one for yourself, the NLRB General is helpful in detailing what constitutes a legal social media policy.

In a May 30, 2012, NLRB General Counsel Memo, the NLRB provided an example of a social media policy that passed legal scrutiny. If you like to read legal papers, you can download the entire memo, but to make it easier for you, we’ve provided the entire approved policy (PDF). Take a look at it, and see if it can help you stay on the legal side of the social media policy debate.

Thursday
May262016

New Federal Overtime Rules Released This Week

On Monday, the U.S. Department of Labor (DOL) published new federal rules on overtime. The new rules, a response to President Obama’s directive to update regulations for the Fair Labor Standards Act, which were last updated in 2004, go into effect on December 1, 2016. 

The rules amend what is known as the White Collar Exemption for certain workers that have historically been excluded from overtime protections. These workers are described in the regulations as “Executive, Administrative, Professional, Outside Sales and Computer Employees.”

Implications of the New Federal Overtime Rules

Despite receiving written comments from tens of thousands of individuals and organizations stressing the serious harm that the changes would cause, the DOL made few changes to rules as originally proposed in 2015. The DOL did lower the salary threshold level to $47,476.00, slightly lower than what was originally proposed; however, this is still a 100% increase over the current salary threshold of $23,660.00. The changes are estimated to affect 4.2 million workers across all industries.

Beginning in December, for employees with a salary of less than $47,476 per year, or $913 per week, employers must compensate all time in excess of 40 hours/week at one-and-a-half times the regular pay rate. Employers may count incentive pay (e.g. commissions, company bonuses) towards the salary threshold, provided that the extra compensation is paid at least on a quarterly basis. However, employers are not permitted to count the extra pay past 10 percent of the salary floor. Hourly workers that do not receive an annualized salary are not affected; such exempt workers are already entitled to time and one half.

Advice for Health Club Owners

Kara M. Maciel an employment law attorney for Conn Maciel Carey, and a frequent speaker at the IHRSA convention, advised employers, “For those assistant managers and supervisors earning pay near the new threshold salary level, particularly those who generally work more than 40 hours per week, it may be a more financially feasible decision to raise their salary rather than try to address the issue of potential overtime pay. 

"Alternatively, for those employees currently earning a wage closer to the prior threshold level of $23,660.00, reclassifying them as non-exempt and closely monitoring hours worked to keep them at or below 40 hours per week would likely be the more feasible option. But every workplace is different and the determination as to how to handle these new requirements must be made on a case by case basis.“

Most lawyers, accountants and other business advisors are noting that it is important that employers take steps now to achieve compliance for December. These steps may include:

  1. Reviewing and if needed, updating, employee classification—exempt or non-exempt;
  2. Setting up systems to log overtime for non-exempt workers

The salary floor will be updated every three years, beginning January 1, 2020, with an agency announcement occurring 150 days before the new threshold goes into effect. The salary floor is set at the 40th percentile of data representing the earnings of full-time salaried workers in the lowest-wage census region (currently Southern states).

For more, read the updated Department of Labor regulation, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.

If you have questions or comments, please send them to IHRSA’s public policy team at gr@ihrsa.org

Friday
Apr222016

Enforcing Health Club Rules Fairly and Legally

Health clubs have always been welcoming places—ones that provide members with the opportunity to experience an exhilarating and rewarding workout, and, at the same time, enjoy the camaraderie of other individuals with similar interests.

However, issues can arise when some members don’t see eye-to-eye with one another or with the club’s management. Resolving such differences before they become heated disputes can sometimes prove difficult.

Acquiring the basic understanding and skills required to deal with such situations quickly, quietly, and efficiently is essential to keeping members satisfied and your business operating smoothly. IHRSA’s latest briefing paper, How to Enforce Club Rules Fairly and Legally, can serve as a useful guide.

Below, we’ve described some hypothetical dilemmas, providing suggestions from the paper concerning your rights, and when, and how, to take action.

Situation 1: Emily A. approaches the front desk at your club one afternoon. She claims that her iPhone has been stolen from the locker room, and says she knows who took it. When you ask if she has any evidence of this, she admits that she doesn’t, but points out that the suspect is always in the locker room at the same time she is. Therefore, Emily explains, the culprit would know where she puts her belongings. She wants the suspect’s membership terminated.

Question: Can you terminate the membership of someone who’s been accused of stealing from your club’s locker room?

Answer: Most clubs do terminate the membership of someone who’s been caught stealing. However, it’s crucial to note that termination should be considered only when there’s compelling evidence. Each time personal belongings go missing, most clubs can print out a report that identifies the members and guests who were on-site at the time; comparing these records can produce a list of suspects who can then be monitored more closely.

Situation 2: Ben S. signs up for a club membership with the intention of meeting women. He thinks that joining a yoga class is the best way to do so. He positions his mat behind a group
 of young women, and, as the class begins, starts commenting on the tightness of their clothing and how good it looks. The women tell him to stop, but he continues with the comments.

Question: Does the club have a responsibility to confront a male member who makes female members feel uncomfortable?

Answer: Yes, it does. In this instance, the individual is extending sexual attention to members who don’t welcome it, which constitutes harassment. The club can be held responsible if staff knew about the situation and took no action to remedy it.

As a club operator, you’re obliged to protect both your staff and other members. Issue a written warning to the offender, and makes it clear that, if the behavior continues, you may terminate his membership.

Continue reading “Enforcing Club Rules Fairly and Legally” in the April issue of CBI.