Q: Four years ago, you stirred up controversy in a series of columns on the trend toward so-called open booking, which was a new kind of corporate travel policy that let travelers book through any website or channel they wished as long as they complied with corporate travel policy and as long as the company's travel data could be consolidated into reliable management information reports. Your position was that public websites should be avoided because they contained oppressive terms and conditions that deprived travelers of all their legal rights.
In the last few years, open booking has not received much publicity, but a new corporate-travel trend called "duty of care" has been the subject of many experts' advice. The duty of care means that employers have a legal or moral obligation to take steps to keep their traveling workers safe by staying abreast of potential risks. Here is my question: Does the corporation's duty of care require them to discourage employees from using public websites in order to avoid loss of their legal rights?
A: Yes. I have no doubt that allowing employees to use public online travel agencies or supplier-direct websites violates the employer's duty of care.
Expedia makes you waive not only all claims against it but also all claims against "suppliers," which, of course, means airlines, hotels and car rental companies.
I mention Expedia only as one example; every public website has similar provisions, and many go further by requiring the user to waive the right to trial by jury or to participate in class actions.
Two questions inevitably arise when I point out these clauses: First, do courts really enforce them and require travelers to waive their legal rights?
The answer is clearer now than it was four years ago because there are more court precedents upholding these clauses and not a single precedent that I could find holding them unenforceable as long as the user had notice of the terms and an opportunity to read them before agreeing. Second, don't TMCs have similar clauses in their online booking tools? In my experience, TMCs, which, I should disclose, are my clients, do not. Therefore, corporate travel managers should perform their duty of care by requiring employees to use TMCs for booking.