Vail Resorts workers suing for unpaid wages ask for rehearing after US court says it won’t intervene in similar state court case

Mid-Vail fills with skiers and snowboarders on Opening Day at Vail. Vail Resorts is currently embroiled in two different Fair Labor Standards Act lawsuits, one in California state court and one in U.S. District Court in Colorado.
Chris Dillmann/Vail Daily

The plaintiffs in a Fair Labor Standards Act lawsuit against Vail Resorts are asking the U.S. District Court in Colorado for a rehearing on a recent decision preventing them from intervening in a different Vail Resorts labor lawsuit currently nearing a settlement in state court in California.

The plaintiffs in the state court class action lawsuit against Vail Resorts made much of the same complaints as those in the federal court case — saying Vail Resorts routinely found ways around compensating work, which should have been considered on the clock, along with overtime, donning and doffing time and equipment reimbursements — but the state court case has already finalized a settlement.

The plaintiffs in the federal court case say that state court settlement is “pennies on the dollar,” and the attorneys who negotiated the class-action settlement will enjoy big paydays while the class itself will be left without meaningful compensation.

In an effort to avoid that outcome, the plaintiffs in the federal case have appealed the state court settlement in California and also asked the U.S. District Court in Colorado to intervene and put a stop to the settlement, saying it did not receive a proper review from the court.

Vail Ski Patrol workers load a lift in Vail during the 2021-22 ski season. Vail Resorts is involved in lawsuits alleging violation of labor laws for unpaid staff time, failure to reimburse equipment and training, and other labor law violations.
John LaConte/Vail Daily

The federal court, in October, said that while it agreed that a proper review — examining the case from the beginning — was not performed, the court would not remand the case because the error was harmless.

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In calling for a rehearing on the matter, the plaintiffs argue that the error was not harmless, and a proper examination of the case from the beginning would have revealed that the federal court does have a right to intervene in the state court settlement.

“This proceeding involves questions of exceptional importance concerning the abuse of collective and class actions,” the plaintiffs argue in the Oct. 31 petition for rehearing. “To curb ‘forum shopping,’ nationwide class/collective actions must be filed and litigated where the defendant is subject to general jurisdiction — i.e., where the company is headquartered or incorporated.”

Vail Resorts attorneys, in a status conference with Judge N. Reid Neureiter in April, said they decided to pursue a state court settlement over federal court because the federal court was too backed up at the time.

“The level of backlog in that docket would have made it far less efficient to proceed with that path,” said attorney Michael Bell, representing Vail Resorts.

The plaintiffs say the California state court case was moved to state court in an act of forum shopping, or looking for a court venue that’s more sympathetic to one’s point of view in the case, or too busy to take on the nuances of a prolonged action. The plaintiffs argue that the danger of forum shopping is that it allows lawyers to leverage sweetheart deals with plaintiffs who are vulnerable to such defenses.

“This very danger materialized here when Vail side-stepped the first-filed action and attempted to settle Appellants’ claims ‘on the cheap’ with compliant plaintiffs’ counsel in later-filed duplicative state court actions,” the plaintiffs argue in the Oct. 31 petition for rehearing. “The District Court and the Panel ignored Appellants’ argument that the litigation belongs in the District of Colorado where Vail is headquartered and is subject to general jurisdiction, and where the challenged policies were formulated.”

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