To our clients, followers, readers and friends, may your holiday season be filled with family, love and laughter. The members of the GSB hospitality team wish everyone a safe and successful 2014. - Greg
For those readers and followers unable to attend last month’s AHIA Fall Meeting in Los Angeles, we have posted below our PowerPoint presentation, “On-Line Distribution: Overview, Issues and Tips.” A huge thanks to AHIA for hosting us last month.
Corporations like Google and Facebook collect incredible amounts of information about their users, and this summer saw confirmation of widespread surveillance of private citizens by the U.S. National Security Administration. Between government and corporate information collection, privacy experts have gone so far as to say that privacy on the internet no longer exists. As data collection has become ubiquitous online, privacy regulators and other enforcement authorities such as the Federal Trade Commission (FTC) have become more interested in reviewing websites’ and web applications’ privacy policies. These authorities require or strongly encourage, depending on the jurisdiction, website and app operators adopt and publish privacy policies that inform users of the information they collect and how they use it. Indeed, California Governor Jerry Brown recently signed into law new provisions of California Online Privacy Protection Act (CalOPPA), which require website operators and online services to notify users whether other parties may collect information across different websites and disclose how they respond to web browsers that do not track signals. Given the increased scrutiny being given to privacy policies and the size of the penalties levied for not complying with applicable laws in this area, it is surprising that so many websites and apps have inadequate policies or none at all.
Under law and as a best practice, website and web application operators (including those in the Hospitality industry) should publish—and adhere to—privacy policies that tell users how the operator collects, uses, and discloses their personal information. Good privacy policies advance the core principles of privacy protection: they give users notice; let users choose what information is collected and how it is used; let users access information about them; tell users, correctly, that the operator takes reasonable steps to keep their personal information secure; and give users means to address their concerns. Moreover, good privacy policies meet the dual goals of being both thorough and accessible to the average user. Unfortunately, most privacy policies fall short of these goals.
While evolving technologies and changing laws can make it difficult to keep up with the most recent requirements, the Sweep makes clear that “keeping up” is not the real problem. Rather, it’s having a policy and complying with it. This is of particular concern for companies in the Hospitality industry. Not only do they have access to huge amounts of customer data, much of which is collected online, but the Hospitality and Food and Beverage industries are primary targets for data breach, accounting for roughly 33% of the data breaches in 2012. This makes it more important than ever that companies in Hospitality sector adopt meaningful privacy policies and comply with them.
The results of the Sweep and the compliance actions initiated by the FTC and others of late, make clear that this is no easy matter. Still, the first step is to adopt a policy that not only meets statutory requirements, but can and will be implemented. Recommendations for drafting better policies are listed below:
- Privacy policies should present information in a way that is easily readable to the average person. They should use plain language and concise explanations rather than lengthy and confusing legalese. Similarly, links to privacy policies should be both functional and easy to find.
- Policies should fully inform users about all information the operator collects, including data that is collected behind the scenes such as the user’s IP address and information collected from browser cookies.
- Policies should tell users about simple and effective methods to protect their personal information by, for example, opting out of providing data for certain purposes or requesting to access or challenge the accuracy of the operator’s data about them.
- Policies should adhere to applicable laws, such as California’s Online Privacy Protection Act of 2003, as well as FTC guidance. Operators should stay informed about legal developments both in the U.S. and internationally, and update their policies when necessary.
- Policies should include up-to-date contact information for the person(s) responsible for the operator’s privacy practices.
Online data collection in the United States shows no signs of slowing. Nor do attempts to gain access to that information or penalties for failure to protect it. While companies in the Hospitality industry may not be able to stop the onslaught from outsiders determined to hack their data, they can take steps to reduce their exposure from claims by regulators and others that have failed to meet their obligations to consumers by adopting (and complying with) privacy policies that allow their users to make educated decisions about what they disclose and how they allow their information to be used. To comply with applicable laws and guidance, these policies should be as accurate, thorough, and clear as possible.
Hunting for a top-rated hotel or searching for the perfect dim sum restaurant? Chances are you will turn to sites such as Yelp, Citysearch, or TripAdvisor to guide you through the mass of options most locations have to offer. As the Huffington Post recently noted, “In an increasingly tech-reliant world, most of us do not step foot in a restaurant or buy anything online without doing at least a modicum of Internet research.”
Hoteliers and restaurateurs have long known that positive online reviews equal greater occupancy rates, increased bookings, and greater revenue for their businesses: An influential 2011 Harvard Business School (HBS) study found that “a one-star rating increase on Yelp translated to an increase of 5% to 9% in revenue” for restaurants, while researchers at Cornell found that a one-star swing in a hotel’s online ratings on travel sites equate to a 11% sway in room rates.
So how trust-worthy are those 4-star online reviews? Turns out, unsurprisingly, caveat emptor.
A 2013 HBS report estimates that the number of fraudulent reviews on Yelp rose from 5% in 2006 to 20% in 2013.
While businesses may think that asking clients or friends to post positive reviews online is simply the cost of doing business in the internet age, the law says otherwise. Regulators are catching on to businesses that artificially inflate their online reputations and are seizing the opportunity to bust companies that hire or solicit positive “fake” reviews. Recently, the New York Attorney General’s office announced it had reached agreements with 19 companies to cease their misleading practices of posting fake reviews online. To the tune of $350,000 in penalties. This was after New York Attorney General, Eric T. Schneiderman, conducted a year-long investigation into consumer-review sites, finding that New York businesses had bribed clients to write fake reviews in exchange for gift certificates, hired overseas bloggers to post positive reviews, or took to the message boards themselves to defend their “false advertising” practices. Schneiderman calls this practice of disseminating a false or deceptive review that a reasonable consumer would believe to be a neutral, third-party review is a form of false advertising called “Astroturfing.” And Schneiderman suggests that prosecutors should step up and help put an end to the practice.
In addition, review sites are fighting back in an effort to protect their reputation. Yelp, for example, has a page dedicated to explaining its policy of outing false reviews by using sophisticated software to weed out spammers. Yelp has even sued a California law firm for posting bogus reviews.
The end game is that by producing fake online reviews, businesses may not only violate state laws prohibiting false advertising and illegal and deceptive business practices, but they may also incur significant penalties and their reputation may be irreparably harmed. (Schneiderman listed the names of all of the business online who were involved in the New York sting operation.)
If you are a hotel or restaurant owner, resist the urge to spruce up your online reputation by solicitation of—or by penning your own!—positive reviews, no matter how benign you think the practice may be. And if you are a consumer, remember: not everything you read on the internet is true.
If you have questions about how your online practices may violate state law, contact Greg Duff.
I’m pleased to introduce guest author Katie Nguyen, a CPA from local accounting firm, Clark Nuber. Katie specializes in state and local taxes for the hospitality industry and has offered to share her experience and knowledge with the Duff on Hospitality readers. Welcome, Katie, and thank you for today’s post on some important tax incentives available to Washington’s owners and operators. – Greg
I’d imagine that every hotel and restaurant owner/operator is interested to know how to save money on his or her state taxes (while still following all of the applicable laws and rules, of course). As a former Washington Department of Revenue auditor, I’ve seen many exemptions, credits, and preferential tax rates go unused – primarily because businesses just didn’t know that they existed! This post provides a brief explanation of some Washington tax incentives (both old and new) that the hotel and restaurant industry should be taking full advantage of.
Sales/Use Tax Exemption for Items Imparting Flavor or Supporting Food
The Washington legislature recently enacted a measure providing a retail sales and use tax exemption on purchases by restaurants of the following two types of items:
- Items used to impart flavor to foods that are completely or substantially consumed by combustion during the cooking process. Such items could include charcoal, charcoal briquettes, wood chips, grape vines, and the like.
- Items comprised entirely of wood that support the food during the cooking process. Such items could include wood planks, etc.
This exemption expires July 1, 2017.
Commute Trip Reduction Credit
Also recently passed by the state legislation was a bill extending the life of the Commute Trip Reduction B&O tax credit. This credit is a great incentive for those taxpayers who help subsidize the cost of employee public transportation, carpooling, or non-motorized commuting. For each employee, the credit is capped at $60 or 50% of the transportation cost paid (whichever is lower) annually. Be sure to submit your application to the Department of Revenue by January 31, 2014 to get your 2013 credit!
Syrup Tax Credit
2009, the buyer is entitled to a B&O tax credit of 100% of the syrup tax paid. The credit can be taken directly on the excise tax return as well.Although not part of the new legislative changes, the syrup tax credit is another great incentive to take advantage of if you are in the restaurant industry. This is a Washington B&O tax credit that is available to any buyer of carbonated beverage syrup who uses the syrup in making carbonated beverages that are then sold (provided that the syrup tax has already been paid). As of July 1,
Lodging for Continuous Periods Greater than 30 days
Hotels and similar short-term accommodation providers are generally required to collect sales tax on charges for room rentals of 30 days or less, but not for continuous periods of more than 30 days. A recently issued Washington Tax Determination provides a favorable application of this law to a hotel that provided blocks of rooms to a corporate customer. In the determination, an airline had a long-term contract in place with a hotel to provide rooms for their off-duty flight crews. The contract was for a term of more than 30 days and the hotel was to provide the airline a set number of rooms on an ongoing basis. The hotels did not set aside specific rooms for the airline, but the airline was guaranteed the availability of the number of rooms specified and was required to pay for them even if they went unused.
The Appeals division ruled in favor of the airline, explaining that the law does not require a specific hotel guest to be in continuous occupancy of the same hotel room for a continuous 30-day period to qualify for the sales tax exemption. This treatment applies retroactively, so there may be refunds available to the extent sales tax has been charged on corporate contracts or other bookings of one or more hotel rooms for a continuous period of at least 30 days.
Awareness of these potential tax savings is just part of the process; implementing the exemptions and credits is the more difficult part. Contact Clark Nuber or your tax provider to “serve up” assistance in these areas.
The Office of Federal Contract Compliance Programs (OFCCP) enforces regulations aimed at federal government contractors, with a specific eye towards preventing both intentional and unintentional employment discrimination based on any protected class (e.g. race, sex, or disability). Many employers think that the OFCCP has no interest in them because they do no business with the federal government. If only it were that easy. Many clients have called after receiving notice that they now are considered a federal contractor because of a service that was purchased by a previously unknown federal government group.
It is important to be aware of your status as a federal contractor because you may need to comply with complex affirmative action practices, including for hiring, and you may need to keep detailed records of your efforts to comply. In addition, OFCCP rules have been changing lately. The new rules expand the affirmative action, non-discrimination, and related record keeping obligations for contractors regarding covered veterans and individuals with disabilities. So, even if you thought you were doing it right – you may need to make changes.
Do the OFCCP rules apply to hoteliers and restaurateurs?
As a general rule, if your business does any work pursuant to a federal or federally-assisted contract, you could be subject to regulatory requirements under one or more of the laws enforced by OFCCP. The work that triggers OFCCP compliance obligations could include providing guest rooms, hosting a meeting or event, or providing catering for a federal government group.
Hotels have been subject to OFCCP compliance actions in the past. Although we are aware of no compliance action directed at a restaurant, that likely stems from the relatively large dollar amounts required to trigger enforcement. Contracts of less than $10,000 do not generally trigger OFCCP enforcement. Contracts of $50,000 or more generally require that each contractor/subcontractor with 50 or more employees develop a written Affirmative Action Program or Plan (AAP). Specific requirements will vary depending on the industry and services involved under the contract (for instance, construction contractors are subject to separate requirements from other service providers). The OFCCP’s website is a good starting point for determining whether your business qualifies as a federal contractor, and includes tests and other resources.
If you suspect that you may be a federal contractor, you should become familiar with OFCCP requirements. The most recently issued rules regard two laws enforced by OFCCP: Section 503 of the Rehabilitation Act (Section 503), which prohibits discrimination against qualified individuals with disabilities, and the Vietnam Era Veterans’ Readjustment Act (VEVRA), which prohibits discrimination against protected veterans. Both laws are administered and enforced by the OFCCP as they apply to federal contractors and subcontractors, and the new rules clarify and expand contractors’ obligations.
What do the new rules require?
Noteworthy provisions found in the new rules include the following:
Opportunity for Self-Identification. Contractors must invite all employee applicants to self-identify protected status at the pre-offer and post-offer stages of the hiring process, on a form to be published by the OFCCP. For disabilities, contractors can identify disabilities (visually or based on applicant disclosures) if the applicant does not self-identify as disabled, and the contractor must offer employees the opportunity to self-identify every five years.
Records Collection and Retention. Contractors must evaluate the effectiveness of their outreach and recruitment efforts to reach affirmative action goals. The new rules require specific steps including measuring effectiveness of affirmative action efforts (e.g., comparing number of individuals with disabilities who apply to number hired) and determining necessary remedial actions. Contractors must retain certain documents for three years, including outreach and recruiting information, data collection analysis, and records regarding utilization and hiring benchmarks. OFCCP must be permitted to review documents either on-site or off-site, at OFCCP’s option. (Also known as an audit.)
Specific Equal Opportunity (EO) Clause Reference. The new rules provide specific language to be used when the EO clause is incorporated into a subcontract so that subcontractors will be on-notice about their responsibilities as federal contractors.
Utilization Goals under Section 503 set at Seven Percent. Contractors must analyze the percentage of disabled individuals employed in each job group and compare their figure to the 7% goal. For contractors with 100 or fewer total workers, the analysis can be workforce-wide rather than by job group. If a contractor does not reach the 7% goal, the contractor must assess impediments to equal employment, and execute an appropriate program to reduce those impediments.
Hiring Benchmarks under VEVRA. Contractors can either use the national percentage of veterans in the civilian work force (currently 8%), or develop their own custom benchmark by considering factors including average percentages in the civilian work force over the previous three years, veteran participation in the state’s employment service delivery system over the previous four quarters, and the contractor’s assessment of its external outreach and recruiting efforts.
The final rules were published in the Federal Register on September 24, 2013, and become effective on March 24, 2014. The rules are available at the following links:
National travel and technology industry experts explored technology trends, challenges and opportunities in the travel industry at the second annual TNT Conference last Tuesday, October 1 in Seattle. The TNT Conference featured industry leaders sharing thoughts and ideas about the future of how emerging technologies will impact and shape the hospitality landscape. The Conference featured two expert panels of users and suppliers that focused on big data and the distribution of content. Following the panels, a Pundits Panel, consisting of consultants and investors, shared reactions and insights on the content that is summarized below. Culminating the Conference was a competition that featured Northwest companies that have developed cutting edge technologies focused on the travel and tourism sector. The Conference judges heard presentations from buuteeq, dwellable, Poached, MovingWorlds, dealScoopr, and Appetas, all competing for the evening’s awards for Best Overall Pitch and Best Investment Opportunity.
Below are highlights from the panel discussions.
Big Data – The Power of Content
Moderator, Scott Warner of Garvey Schubert Barer, focused the panel on an overarching question – What’s important and how do you use the data that’s being collected?
- Mike Blake, of Commune Hotels, addressed the challenge of using data to make an organization more efficient by developing the big picture view of how to manage the vast amounts of available information at our fingertips. He used the analogy of the “two car accident”…if you’re above the traffic in a helicopter, you could probably predict when the accident was going to happen.
- Other challenges posed by the panel included knowing what data to collect, what informative questions to ask and who are the right people to ask.
Challenges of big data?
- Privacy. Where do you draw the line between intimate and creepy?
- Distribution. How do we take the data and share it to make it relevant to the hotel, front desk, and the staff?
- Maturity. We have the infrastructure but not the maturity to handle big data.
- Utilization. We have the power of big data but we’re only using “medium data.”
How do you make it relevant to people that need to consume this data?
- Storage is relatively inexpensive these days so collect and save everything and come back to it when you need it.
- Figure out what questions are rising to the top and start looking for trends, which then opens up the ability to start asking the right questions.
- Arm your staff with information so they can treat VIP guests appropriately.
- Take advantage of the “click through” information on websites. Every website should have browser and IP address information. Leverage this information to create a good customer experience.
Structured v. unstructured data?
- Data co-ops need to look outside their own industry and start sharing information much like the retail industry. It’s for the betterment of the company and customer experience.
- Understand the market from the entire industry and not just from your specific market.
- ALL of your information is currently being collected such as credit cards, shopping habits and spending.
- Walk before you run – first get structured data in order, then think about adding more data.
John Burns, of Hospitality Technology Consulting, moderated this panel focused on distribution including the challenges and disruptions.
What are the latest generational technologies?
- “Pop unders” are similar to pop ups and occurs when a customer hits the “leave button” on a website and directs you to another related site. The goal is to turn shoppers into buyers.
- User interface can now change and adapt to the varying screen sizes (from phone to tablet to laptop to desktop), which is a very simple concept to wrap your head around, but difficult to implement.
- Mobile. 50% of business is now coming from mobile devices and tablets and it’s growing exponentially, especially in other countries like Japan and Asia Pacific. Your mobile phone is now your credit card, room key, and plane ticket. Apps are now primarily being designed for mobile.
- Keeping up! This technology will not slow down; it will only get more complicated. Those working in the field probably need to become experts on this new way of doing business.
- The new iPhone 5 has more computer power than when NASA landed on the moon in 1969. Now we are carrying this thing in our pocket and thinking nothing of it.
The idea of globalization?
- You must think globally.
- Think about IP issues, antitrust, pricing, and maintenance.
- Hire teams on the ground in other regions.
- Understand what customers in other regions are looking for.
- Wherever you are in the world, there’s data that can help you in any market. The power of big data allows you to leverage information and respond centrally.
What to expect looking forward?
- Distribution. We’re going to see more programmatic marketing solutions enabling industries or corporations to take advantage of new technology.
- Volumetrics and more biometrics.
- Increase in coding skills. Expect to see 200 more hotel apps in the next two years
- Continued industry consolidation (think William Shatner of Priceline, Booking, Kayak, and Travelocity).
The Pundits’ Reaction
This panel was moderated by Rich Siegel, of Hospitality Upgrade.
- For a long, time data wasn’t in a hoteliers’ job description, it was centered on accommodation. Now it’s becoming part of the job.
- Make the data easily accessible to your employees for better customer service. Know your clients. Connect the data and implementation.
- Aggregate. Normalize. Then make the information visible.
- Privacy is dead. The younger generation doesn’t understand the idea of privacy.
- Draw the line between creepy and courteous. Don’t scare your customers. Just because you can, doesn’t mean you should.
The Pundits’ reaction was followed up by the awarding of Best Overall Pitch and Best Investment Opportunity. Drum role please…MovingWorlds, a company that helps customers donate their professional skills worldwide, won Best Overall Pitch and Appetas, a company that designs affordable websites for the restaurant industry, won Best Investment Opportunity. Congratulations to both companies. Conference attendees agreed that we will see great innovation from both of these companies in the future!
On behalf of Zino Society and Garvey Schubert Barer, I would like to thank all of the participating companies: Appetas, Clairvoyix, Commune Hotels, Digital Alchemy, Benchmark, Hipmunk, Thayer Ventures, Google, Roomkey, Tnooz, Concur, Jon Inge & Associates, Expedia Media Solutions, Voyager Capital, Hospitality Technology Consulting, nSight, Travelport, buuteeq, dwellable, Poached, MovingWorlds and dealScoopr. A special thank you to our 2013 sponsors: Clark Nuber, GeekWire, Guestware, and Hospitality Upgrade.
To view pictures from the 2013 TNT event, click here.
To read about 2012’s Conference, click here.
As fast food workers across the country stage walkouts in a push for a $15 hourly wage and the Obama administration renews its call to boost the federal minimum wage, states on the left coast have already embraced employee-friendly increases.
Oregon, the state with the second-highest minimum wage in the country, announced last week that it will raise its minimum wage to $9.10 in 2014. It’s in good company: Oregon’s neighbor to the north just announced that Washington will raise its state minimum wage to $9.32 (the highest in the nation), and Oregon’s neighbor to the south just enacted a law that will hike California’s minimum wage to $10 per hour over the next three years in one dollar increments – from $8 to $9 on July 1, 2014, then to $10 on January 1, 2016.
The current federal minimum wage is just $7.25 per hour, but at least 19 states and the District have set a higher wage for workers. Nine of these states (Oregon and Washington among them) have indexed their rates to inflation, such that the rate is revisited every year to keep pace with changes to the economy.
Certain cities have set minimum wage even higher than the state minimum wage. San Francisco, for example, currently has the nation’s highest minimum wage of $10.50 per hour. Meanwhile, the City of SeaTac, Washington will have a unique $15 minimum wage initiative on its ballot this November. Known as Proposition 1, this union-sponsored initiative singles out hospitality and transportation employers within the City of SeaTac (home of Sea-Tac Airport).
Numerous state legislatures across the country have also been introducing bills to raise their minimum wages. These wage hikes come amid a national debate over whether minimum wage workers should be paid more – what advocates have called a “living wage.” There’s little consensus: economists disagree on the effects of raising a minimum wage and the issue is politically divisive. Some contend that increasing wages can improve the economy for everyone by increasing the demand for goods and services because those that work would spend more if they had money in their pockets. Others argue that raising wages by government mandate leads businesses to cut jobs and reduce employees’ hours, effectively hurting the workers who were supposed to benefit from the increased wages. As the debate continues, it is unclear what other states – or even the federal government – will do in the future. Stay tuned for updates on significant changes.
I’m happy to see my quote in the recent Bloomberg article showcasing examples of private equity firms taking advantage of the rising hotel market. It’s an article worth reading!
“In a nine-inning game, we’re probably in the sixth inning,” said Greg Duff, chairman of the hospitality, travel and tourism practice of Seattle-based law firm Garvey Schubert Barer. “On many levels and in many different markets in terms of occupancy, we have met or exceeded where we were pre-recession.”
The Seattle Office of Civil Rights has recently issued proposed rules to implement the Job Assistance Ordinance, which limits the consideration of criminal history information in hiring and employment decisions within the City of Seattle. See my previous post on the topic HERE, and the proposed rules can be accessed HERE. The Office of Civil Rights is seeking public comment on these proposed rules, which can be submitted electronically by Friday, September 20 to firstname.lastname@example.org.
In many ways the proposed rules hew closely to the language of the ordinance and do not significantly alter the law or compliance burden. However, in a few areas the proposed rules differ from the ordinance in ways that are important to the hospitality industry.
The first area of concern relates to the exemption of positions whose job duties include “security” services, which are not covered by the ordinance. For example, questions have been raised about various positions in a hotel that have security functions and whether they would be considered exempt, such as night managers who are directly responsible for managing security situations in hours of lean staffing. The proposed rules take a strict view of a “security” position that would not cover non-traditional security employees. Specifically, the proposed rules state that “security” includes any person who is required to be licensed as a “security guard” under Washington State law and who would typically be referred to as a security officer or guard, patrol service officer or guard, armed escort or bodyguard, armored vehicle guard, burglar alarm response runner, or crowd control officer or guard (these terms and the State licensing requirement come from the Washington statute RCW 18.170). This narrow definition would render the “security” exemption inapplicable to many if not most hotel employees who might be thought to perform security functions.
The second area of concern is the proposed rule’s definition of “verifiable information” of rehabilitation or good conduct that an employer should consider before deciding it has a “legitimate business reason” to make an adverse employment decision based on criminal history information. The term “verifiable information,” though vague, seemed to refer to information that could be checked—like work experience, certificates, diplomas and the like—and not to mere statements from an applicant or employee. However, the Office of Civil Rights believes differently. The proposed definition of “verifiable information” includes “any” information produced by the applicant or employee related to rehabilitation or good conduct, and specifically lists as examples “a written or oral statement” from the applicant, law enforcement or probation officer, member of the clergy, counselor, therapist, social worker, or member of a community or volunteer organization. Thus, under the proposed rules an employer would generally have to consider all applicant or employee statements of good conduct and rehabilitation when determining whether it had a “legitimate business reason” to make an adverse employment decision based on criminal history information.
The third issue is that the proposed rules make a technical change to the definition of “legitimate business reason” that requires the consideration of individualized factors in all circumstances prior to an adverse employment decision. Under the ordinance, a “legitimate business reason” was one of two things:
- a good faith belief that the criminal conduct would have a negative impact on the applicant or employee’s fitness or ability to perform the position or
- a good faith belief that the criminal conduct will harm or cause injury to people, property, or business assets, after considering specified individualized information about the criminal history and the applicant or employee.
Under the proposed rules, however, the definition of “legitimate business reason” has been changed to require consideration of individualized information before reaching either type good faith belief. In other words, under the proposed rules an employer cannot reach a good faith belief that the criminal conduct would have a negative impact on the applicant or employee’s fitness or ability to perform the position without first considering individualized information. Although it is generally good practice to consider individualized factors in all cases, regardless of the technical requirements of the ordinance, the proposed rules would now require this individualized consideration in all cases.
Finally, the proposed rules are disappointing in what they do not do. Specifically, the proposed rules to not attempt to further define or explain the contours of the two types of “legitimate business reason” noted above. What is a “negative impact” on “fitness or ability to perform the position”? What does it mean to believe that past criminal conduct will “harm or cause injury to” people, property, or business assets? What are “business assets” in this context? Does that term include assets other than physical property, such as public good will? These questions and others remain unanswered in the proposed rules.