Judge hears harsh criticism of Vail Resorts labor lawsuit settlement

Judge Michael McLaughlin heard harsh criticism of a settlement offer Friday during a Vail Resorts labor trial hearing in South Lake Tahoe.
John LaConte/Vail Daily News

SOUTH LAKE TAHOE, Calif. — A fair calculation of wages owed to Vail Resorts workers would be easily found by looking at company records of employees’ scheduled hours, then subtracting the hours those employees were actually paid for.

This and many other objections were made during a Friday, June 18 court hearing in South Lake Tahoe regarding preliminary settlement of a fair labor standards case against Vail Resorts.

The case, Hamilton v. Heavenly Valley, involves more than 100,000 workers in 16 states. The deal offers $8.24 million to a class of approximately 100,000 Vail Resorts employees while awarding attorneys $4.36 million for administrative and legal fees. Workers say company is liable for failure to provide proper meal and/or rest periods; failure to provide accurate records of employment upon request; not to mention things like necessary gondola or shuttle rides like time stamped on the time card, and many other violations.

Ski instructor Bryan Griffith, who works at a Vail Resorts property in Ohio, told Friday’s hearing that while present at the resort for four to seven hours, he would sometimes only be paid for one hour, “the only hour I was in a lesson…we were asked to attend, then unpaid for the time.

Griffith said his settlement offer was $7.46, less than the $9 court fee he paid to file his objection. Griffith said the number was 0.25% of his probable damages and urged Judge Michael McLaughlin to reject the settlement.

McLaughlin said he postponed the final settlement hearing to August 19 in order to hear objections like Griffith’s. The judge thanked Griffith and others for their thoughtful and well-worded presentations.

“Sometimes when you have issues that are very important to people like this, especially when you have people who are against it, it can get a little heated,” McLaughlin said.

Other objections included those from Vail Resorts employees represented by attorney Ed Dietrich, who also represents clients in a separate case, Quint v. Vail Resorts, Colorado.

Dietrich said the settlement in the Hamilton case should be rejected because the notice of settlement sent to the workers did not inform them of the option they had to join the Quint case.

If those workers had known that by pulling out of Hamilton they might have a chance of getting a higher payout at Quint, more people would have pulled out, Dietrich said.

Dietrich also pointed out that it was much easier to sign up for the deal by clicking a button on a website than to opt out, which required filling out forms.

Still, the more than 1,500 people who took the time to get the form, fill it out and send it to the claims administrator is significant compared to similarly sized cases, Dietrich said.

One of the 1,517 who opted out, Heavenly ski instructor Thomas “Tad” Dodson, was allowed to appear in court on Friday not to oppose it, but to provide information about a time extension. requested by the lawyers representing the class. May 6, deadline to participate or withdraw from the file has been extended to May 20.

Dodson said plaintiffs’ attorney Jen Liu, in her motion to request the extension of the deadline, claimed that she was made aware of two issues with the notice of settlement on or about April 25, necessitating the extension.

But Dodson said Liu acknowledged one of the issues to him in an April 4 email.

Dietrich also spoke about the extension of the deadline, saying that although he created a longer window to register or opt out, he tried to create a shorter window to object, because the original notice of settlement was not referring to a May 20 objection deadline, but to the May 6 deadline. extension did.

“According to the notice, there was no deadline to file or submit an objection prior to today’s hearing,” Dietrich said. “So in my opinion, the order that said we’re extending the time from May 6th to May 20th, in fact, it extended the exclusion or the registration time, but it shortened the objection time because in the notice, the objection deadline was June 17.”

Dodson also said Liu and the plaintiffs’ attorneys suggest they took longer to reach this settlement than the record reveals.

“I read the motion for final approval, and what struck me was how many times Ms. Liu mentioned the three years of intensive investigation that went into putting this in place – it is mentioned at least five times by plaintiff counsel,” Dodson said.

Dodson said he reviewed the motion for plaintiffs’ attorneys’ fees and added up the reported hours for each attorney, paralegal and other person involved in the case, and the sum of the hours equals approximately one year’s work for a nobody.

“It just strikes me as odd that these years of intensive investigation could have been conducted with less than a man-year of attorney, paralegal, clerk and expert,” Dodson said.

Griffith also objected to plaintiffs’ attorneys’ fees in the settlement, pointing out that Liu charges $900 an hour when the average rate for civil litigation in California is $333 an hour.

“They probably don’t even have $1 million in actual work on this case, but they’re going to walk away with over $4 million in attorney fees,” Griffith said.

Dodson said he agreed with Griffith regarding the instructor experience at Vail Resorts, despite the fact that the two employees come from different geographic regions, with Dodson in California and Griffith working at Mad River Mountain in Ohio. Dodson said Vail Resorts relies on the lifestyle attributes of skiing and snowboarding to keep its workforce on minimum wage and said the fact that some of the issues raised have been resolved over the course of the 2021-22 season represents a tacit admission that Hamilton’s complaint has merit.

Attorney Evan R. Moses, representing Vail Resorts, said Griffith and Dodson’s experiences should not be extrapolated to represent the entire class, calling their examples dramatic outliers.

In a brief submitted June 14, Dietrich presented data from other cases suggesting that class action settlements of this size very rarely see people take any initiative to oppose, participate or opt out. While her brief was rejected on June 16, Dietrich was still able to make her point in court on Friday.

“Given the difference between how easy they made it to sign up – just click a button – versus you having to fill out and submit a form, the 1,500+ people who took the time to do so are very, very important,” Dietrich told the judge. “And the brief we submitted that you wrote reviews data from law review articles and other cases and asks you to compare the 1,500 to references from other cases.”

Moses also offered anecdotal testimony of the “substantial work done” by Liu and his team, as he was the recipient.

Liu said that while she appreciates the efforts made by opponents, they have a difference of opinion regarding the risk in the case.

“The settlements do not represent a complete accounting of the maximum damages of people, their actual damages, but a settlement that reflects the risks involved in the case,” she said. “In this case, there were significant risks.”

McLaughlin said the court would consider all objections and continued the motion for final approval of the class settlement until August 19 at 1:30 p.m.

In a statement following the hearing, a spokesperson for Vail Resort said, “Vail Resorts is and always is committed to treating its employees fairly and in compliance with all applicable laws. . We value the contributions of every employee and do our best to bring the employee experience to life through wages, comprehensive benefits and commitment to leadership development. We dispute the accuracy of the claims raised by plaintiffs and deny the allegations and believe that the settlement agreement is appropriate and fair. To achieve our mission, we continuously evaluate the employee experience to ensure that our policies and practices remain rooted in our core values, and we will continue to do so. »

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