The Settlement Offer

I got my papers. The ones from Vail Resorts’ attorneys telling all VR employees that we’ve got a settlement on the table for a lawsuit in California. The papers say we get about $80 bucks and all we have to do is sit back and wait for the check. Now, you might be thinking, “Wow, an extra $80 and I don’t have to do anything? Sweet. Vail rocks.” Not so fast.

The Vail Resorts Condensed Settlement History

More than a year ago, four former Vail Resorts employees at Heavenly Valley Resort in California (at separate times) found separate attorneys who would help them in their fight against “unjust enrichment and unpaid work”.

The first two were filed by Anna Gibson and Adam Heggen. Heggen’s, filed in California state court October 2020, alleged that Heggen was not paid for breaks and meals while working as a security guard for the resort.

Gibson filed her case in California Superior Court in April 2021. A third related case, also against Heavenly, was filed by Christopher Hamilton in July 2021. The fourth, from Paul Greg Robards, was filed in December 2021.

Vail had the Heggen, Gibson, Hamilton and Robards cases removed (transferred) to federal California court. Now, if you’re not yet confused, here’s another twist. Vail did not remove a second case filed by Hamilton in California state court based on the same facts. This is the Hamilton v. Vail case that is in front of all us VR employees at the moment. Vail submitted the settlement for approval in California state court and we either opt in or opt out.

All the other cases together allege “Vail violated federal and state wage and hour laws, and several related causes of action” but it’s been ‘stayed’ pending the outcome of the Hamilton case.

Vail Resorts Charges In Detail

In order to release all possible claims against Vail, Hamilton filed an amended complaint in California
state court after the settlement was submitted for approval.*

The Action contains claims against Vail for: (i) unpaid wages (including but not limited to minimum wages, overtime wages, double time wages, and wage premiums) under the Fair Labor Standards Act (“FLSA”) and/or the laws of the states of California, Colorado, Wisconsin, Michigan, New York, Vermont, Minnesota, Utah, Washington, Ohio, Indiana, Missouri, New Hampshire, Pennsylvania, Nevada, and Wyoming (collectively, “Class States”); (ii) failure to authorize, provide or allow proper meal and/or rest periods under the FLSA and/or the laws of the Class States; (iii) failure to pay proper meal and/or rest break premiums under the laws of the Class States; (iv) failure to reimburse expenses, as well as any resulting claims for unpaid wages arising out of such allegations, under the FLSA and/or the laws of the Class States; (v) unlawful deductions, rebates, or refunds from wages, as well as any resulting claims for unpaid wages arising out of such allegations; (vi) breach of contract under the laws of the Class States; (vii) failure to accurately record time or keep accurate records under the FLSA and/or the laws of the Class States; (viii) failure to provide accurate employment records upon request under the laws of the Class States; (xiv) improper or inaccurate wage statements under the laws of the Class States; (xv) failure to pay timely wages during employment under the FLSA and/or laws of the Class States; (xvi) failure to pay timely wages at or after termination under the FLSA and/or laws of the Class States; (xvii) solicitation of employees by misrepresentation under the laws of the Class states; (xviii) fraudulent solicitation of employees under the laws of the Class States; (xix) employment under conditions detrimental to employee health under federal law and/or the laws of the Class States, (xx) unfair business practices under the laws of the Class States ; (xxi) false or deceptive representation or advertisement under the laws of the Class States; (xxii) statutory or civil penalties (including but not limited to those under PAGA); (xxiii) unfair competition under the laws of the Class States; and (xxiv) unjust enrichment under the laws of the Class States. The Action seeks damages for lost wages, interest, penalties, injunctive relief, and attorneys’ fees and expenses.

That’s pretty comprehensive. It basically doesn’t leave any room for employment challenges by any current employee in the future.

Is Vail Resorts The Big Bad Wolf?

Ask any ski area employee – from Vail, Alterra, Boyne, anywhere – and they will likely complain about some or all of the above ever since they started their jobs. We love our work but the resorts rarely return the love. I’m pretty sure our ski school director couldn’t put faces to names without the nametag. Ski areas prey on an employee’s passion for the ski industry. They know they can get away with mediocre treatment because defending what’s right is a fast track to unemployment. Plus, where would we go if every resort in our state is no different?

I aggressively asked for help on a private Facebook page about the inability to reach a human being to get my paperwork done and was told if I didn’t like it maybe Deer Valley was hiring. Really? What about listening to your employees and “doing better”?! Oh, and if you post concerns on the private FB page, it gets deleted by admin. It’s safe to say, most resorts don’t want to hear constructive feedback from their employees.

Ski resorts have a funky way of doing business since forever and they act surprised and offended when we speak up. VR even sends out biannual surveys asking for our input yet conveniently words the questions in their favor while excluding places to write in comments.

Think you should be paid while you stand around in your uniform waiting to be assigned a lesson? You usually aren’t. A snowboard instructor I met said, “This is bullshit,” and walked off one day. He never came back. For decades, the only alternative if you didn’t like something, was to leave or be fired.

So, while the California suit was bubbling in 2020 and unbeknownst to anyone outside of the immediate players, two ski instructors and a ticket scanner in a little VR ski area in Colorado called Breckenridge, decided to also go up against their employer.

Quint et al v. Vail Resorts Inc.

Those (2 former and 1 current) Breck employees filed a lawsuit in December 2020 alleging similar claims to the case in Heavenly. But their attorneys Ed Dietrich and Benjamin Galdston didn’t stop at just unpaid meal breaks. They went for the jugular… in federal, not state, court, and covered employees from 18 states instead of just California:

“All current and former Vail Resorts hourly employees who worked in the United States and who
were not compensated for work-related equipment and cell phone costs or “off-the-clock” work
including, but not limited to, travel time, donning and doffing time, and training time during the three
years preceding the filing of this Complaint through judgment (the “FLSA Collective” or the “Hourly
Employees”).” The complaint asserted claims for Vail Resorts’ violations of the federal Fair Labor
Standards Act, (“FLSA”), and the laws of the States of Colorado, California, Utah, Minnesota,
Wisconsin, Washington, New York, Vermont and Michigan, and common law. “Through this action,
Plaintiffs seek recompense for unpaid wages, overtime and other benefits wrongly withheld from
them and all other similarly situated current and former Vail Resort employees,” It went on.

The complaint alleged, among other things, that despite representing to job applicants, returning employees and competitors that Vail Resorts pays its employees a set base rate per hour worked, Vail Resorts willfully and systematically fails to pay its hourly employees for all hours worked at the hourly wage specified in employment agreements. For example, pursuant to Company policy, Vail Resorts
generally pays ski and snowboard instructors (“Snow Sport Instructors”) at their regular rate for shifts
of 6.5-7.25 hours per day. However, Vail Resorts supervisors and managers know that Snow Sport
Instructors typically work more than 9 hours per day, including compensable time working while
traveling on Company buses, donning and doffing indispensable uniforms and equipment, training,
and “off the clock” work performed prior to and after shifts.

A Tale of Two Cases

While the California case is trying to settle for $13 million, the Colorado case, Quint et al v. Vail Resorts Inc., which has grown to more than 20 named plaintiffs since it was started, not only seeks far more than that but it also wants policy changes. If it actually had a chance in court, it could potentially signal to every other ski company in the U.S. that if they don’t behave accordingly with their own employees, they too could face sanctions. Just this season employees saw the consequences of the pending lawsuit. Vail began to pay for ‘donning and doffing’ and stopped requiring unpaid training clinics. But there’s nothing that would prevent them reversing these rules once the settlement is reached.

Makes sense that VR would want to quietly settle the California case for a few bucks and no consequences than face a much larger pricetag, and costly employment directives companywide like paid training, gear allowances, paid breaks, etc. that they couldn’t escape.

How to Respond to The Vail Resorts California Settlement

Pay attention to this part, kiddies. IF THE MAJORITY OF VR EMPLOYEES TAKE THAT $80 AND WALK, THERE MAY BE NO CLASS FOR THE COLORADO CASE AND NO OPPORTUNITY FOR THE MORE COMPREHENSIVE ALLEGATIONS TO BE CONSIDERED. There is also nothing in this California settlement that would encourage or direct Vail Resorts to make changes in their employment practices and isn’t that what we want? It’s not about the money. It’s about respect and real change.

[An anonymous VR employee posted this website for further clarification and links to the forms you need to opt out.]

“How can it only be $80 when the settlement is $13 million,” you ask? The breakdown was written in fine print and buried in your settlement docs:

Out of the $13.1 million to “settle all claims” (that means you can never sue for the same claims of unpaid wages EVER), $4.36 million will go to the lawyers. Another $500,000 — 3.9% of the settlement fund — will go to complaints made using the Private Attorneys General Act, and 75% of that ($375,000) will be paid to the California Labor & Workforce Development Agency for “assisting in facilitating that process.” That leaves $8.24 million to be distributed evenly across the 100,000 members of the class. That’s $82 bucks per person.

Except it’s not split evenly. Fulltime Heavenly ski instructors will get more than Vail’s other California employees, and the named plaintiff will also get a bigger chunk for their time and effort they put into the case. You might think, “But maybe a large portion of the 100,000 members will opt out so I will get more of the pie.” Not exactly. Most of the unclaimed leftovers get to go back to Vail!

Dietrich told SPL that his firm is fighting as hard as possible to get people meaningful recovery. He said the settlement notice is misleading and that VR is trying to get all of their liabilities settled in this one case without ever mentioning the Quint v. Vail case.

At the time of the Colorado filing, according to the filings in the Quint case, VR had a duty to disclose the California cases so they both could possibly be joined into one larger class action but VR didn’t say a word until it was too late. Perhaps VR was hoping to settle the California one first and bind all of their employees to it. That $80 bucks would automatically prevent every VR employee from being a part of the Colorado case or any other case suing over similar complaints. EVER.

What Happens If You Opt Out

If five percent or more of the employees opt out, then Vail can and probably will reneg on the California settlement. They’re not going to want to pay out on this one and then face another class action later.

By “waiving our rights” to this California settlement, we retain the right to make a change heard ‘round the ski world. What’s a paltry $80 worth if VR and every other resort can continue to abuse the passion we share for the ski industry? By turning down that $80, we can be part of a much broader settlement- the one waged in Colorado; it won’t be just about the money. It will be about change. If it goes to court, it will create laws that protect us; it will level the field and force resorts to treat their employees like any other. When you show up to work, you get paid until you leave. If you need thousands of dollars of equipment to do your job, it’s provided to you. If a smartphone is required for your job, it’s compensated. If training is required to keep your job, it’s provided and the list goes on. Now is not the time to wait for $80 to roll in. It’s the time to opt out, and dream of positive change. 

You might now think, “Oops, I didn’t opt out but I’ll just tear up that check when it comes.”  People, please read your notice again. Consider the wording in those instructions-

You are first told: If you want to participate in the Settlement and receive a monetary payment, there are two ways to do so. First, you can fill out and return the “Consent to Join” Form. Second, you can do nothing, wait to receive a payment, and then cash the check you receive.

HOWEVER, below these instructions it says: If you wish to exclude yourself and do not want to participate in the Settlement, send the Opt-Out Statement to the Settlement Administrator which will remove you from the Action and the Settlement. You will not receive any payment. You will keep your right to sue Vail for the legal claims in this Action. The Settlement will bind all Class Members who do not request exclusion by submitting an Opt-Out Form.

Let’s check out that last sentence again- The Settlement will bind all Class Members who do not request exclusion by submitting an Opt-Out Form.

In other words, if you tear up the check but don’t physically opt-out, you are still bound to the judgment. You just don’t get the $80 bucks. You have waived all your rights to later sue for uncompensated time and other allowances.

Nuts and Bolts

What you choose to do is entirely up to you but it helps to know the background and all the facts and how it impacts you and your love for the ski industry. What they have shared with us is misleading.

Your document says if you opt out, you retain your right to sue. They don’t tell you there’s already another case pending you could join so you don’t have to take on your own legal fight.

Even the opt out form is hard to find. It’s not online. It’s in your settlement packet and if you don’t have the Camscanner app on your phone, they make you think you have to snail mail it in, making you work even harder to stand up for your rights.

If you wish to be excluded from the Settlement, you must submit an Opt-Out Form to the Settlement Administrator on or before May 6, 2022. Did anyone else notice that only the ‘consent to join’ form is available online? If you want the opt out form, use the one that came in the mail or you can download this one, snailmail AND email it to info@resortsettlement.com.

Make sure that if you are emailing the form, you take a minute to add your two cents. I was told my comments would be forwarded to the settlement administrator and the judge. Let them know how you feel. Maybe it gets passed along to VR.

Not sure what to say? Feel free to quote our anonymous champion at Resort Settlement Opt Out:

1. The compensation offered to us is grossly insufficient. They offered me less than $100. As a part-timer, I estimate that Vail shorted me over $2000 since 2016. Why does Vail get to keep the rest?
2. Vail refuses to admit that they didn’t “Do Right.” Yet, this season Vail changed many of the practices described in the complaint. That’s a tacit admission that Vail did not “Do Right” in the past. Remember all that training on Vail’s Core Values?
3. Vail makes no commitment to “Do Right” in the future. To “Do Right” would mean accurately recording ALL the time we work and paying for it.
4. The settlement amount is too small to make Vail “Do Right.” The plaintiffs claimed $108,000,000 in damages, then settled for 7.2% of that amount after fees and costs. WTF?

What To Do After You Opt Out

Maybe you didn’t. That’s ok. Maybe you opted out on principle to help other employees you feel were wronged but don’t really care for yourself. For those who did, if you have the time and energy, you could start your own case. With everything that’s going on in this realm, there’s bound to be an attorney at the ready. But maybe you agree that Vail should be forced to make changes but the idea of filing your own lawsuit is crazy.

Did you know you can ‘opt in’ to the Colorado case? Leave a comment below so we can try to help or find them here.

At the end of the day, we just hope you understand the mechanics of these lawsuits and choose the path that’s best for you.

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*Most of these “amended” claims were previously alleged in the Quint case in Colorado federal court but not in any of the California cases.

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**From the Settlement Notice

The “Class Members” are all non-exempt employees who, at any time during the “Covered Period” worked for and were employed by Vail in the United States and worked primarily at one of its resort locations or mountain facilities. The “Covered Period” starts:

• For Class Members employed in Wyoming, on October 21, 2010.
• For Class Members employed in Indiana, Ohio, Washington, Minnesota, Vermont, New York, Michigan, Nevada, Wisconsin, and Colorado, on October 21, 2014.
• For Class Members employed in Missouri, on October 21, 2015.
• For Class Members employed in California, Pennsylvania, and Utah, on October 21, 2016.
• For Class Members employed in New Hampshire, on October 21, 2017.
• For Class Members not employed in one of the above identified states, on October 21, 2016.

The Covered Period ends, for all Class Members employed in California, on December 15, 2021, and for all Class Members employed in states other than California, on October 23, 2021.