Vail Resorts’ H2B workers unsatisfied with response to COVID-19 |

Vail Resorts’ H2B workers unsatisfied with response to COVID-19

John LaConte
Vail Daily
Vail Resorts employees depart a mountain property on March 14. On March 17, the company announced its North American resorts were closed for the season.
John LaConte |

As Vail Resorts made efforts in March to evacuate temporary workers from the communities it operates within, a group of workers who depended on the company for transport home was left waiting in the days before their border closed.

Now stuck in company housing, those workers say Vail Resorts has not respected the responsibilities associated with being an employer of H-2B visa workers. They’re also feeling nervous about the prospects of being allowed back into the U.S. after overstaying their visas.

The workers’ top complaint is the fact that Vail Resorts has an obligation to book them travel home, and had a feasible window to get them home between the company’s March 17 decision to cease operations for the remainder of the season due to the coronavirus outbreak, and the workers’ home country border closing March 22. The workers say by failing to act quickly, Vail Resorts left them feeling stranded and scared, with their most reliable communication coming from attorneys rather than a human resources department.

The workers also feel their employment contract should not have ended before their travel home was secured, as that can put workers in danger of overstaying their visas, which are connected to their employment contracts. Overstaying a visa by even one day can complicate any efforts to return to the U.S. in the future. Vail Resorts has always allowed a few days of padding in this regard — if the resort closes April 20, the term of employment would end April 25, and the flight home would be booked for April 23, for example. This year, amid the early shutdown due to the global pandemic, this practice was not observed.

The workers now stuck here say Vail Resorts’ blunder in not recognizing the immediacy of the travel situation has topped off a list of mistakes by the company with regard to the H-2B visa program, demonstrating that Vail Resorts has not lived up to the responsibilities associated with being allowed to use this increasingly coveted form of visa.

Vail Resorts, in a statement, said the company still plans on covering the cost of the workers’ transportation home, and it has been working with employees, airlines, travel agents and government agencies to help ensure a safe and timely transition.

“Given certain border controls, it has been difficult, if not temporarily impossible, for some of our employees with visas to return home,” said John Plack, a senior communications manager with Vail Resorts, in the statement. “During this challenging time, Vail Resorts is allowing those who have not been able to return home to remain in our housing rent-free and also accommodating and supporting other employees with visas who were not previously living in our housing units. We will continue to work with each individual employee to understand their situation and to help them meet their current needs while here. Our EpicPromise Foundation is also helping seasonal employees with grants to assist with food and essential needs.”

Observation of regulations

Vail Resorts also uses J-1 visa workers, but those workers’ visas have set expiration dates, unlike H-2B visas, for whom the term of visa is connected to the term of employment. Stories of J-1 visa holders also stranded in the country have been widespread across Vail Resorts properties in recent weeks, but H-2B workers, especially those for whom Vail Resorts agreed to provide transportation home, are a much different story, and one worker wants to make sure their situation is known. The worker agreed to speak to the Vail Daily on the condition of anonymity for fear of reprisal, as he said he is still owed unpaid wages.

The worker said the company paid his group of more than a dozen workers through March 20 and provided about two weeks worth of food and a place to stay. The group is now relying on their savings for sustenance, making occasional trips to the grocery store on foot. The worker said while their main concern in overstaying their visas is the way it could inhibit their ability to return to the U.S. in the future, the simple thought of being in America on an expired visa is enough to make a person very nervous, even about something as simple as walking down the street for groceries.

The workers have taken some comfort in the fact that they haven’t received actual proof of their visas expiring. A wage and hour investigator with the Department of Labor couldn’t say for certain that the H-2B workers’ visas were immediately terminated once the labor contract has ended, and was not able to determine how many days the workers have to leave the country once the visa expires.

Jeff Simek with the Department of Labor said H-2B visa lengths depend on what the business might have lined up for the workers in the future, and information isn’t written into the federal regulations as to how long workers have to vacate the country. In this case, however, the workers were informed that even if they did have a summer extension lined up, they still need to return to their home country. The worker said they were told by management that their visas had indeed expired.

To the contrary, however, Vail Resorts’ said “Vail Resorts has not canceled any visas, nor have we let any visas expire,” according to Plack’s statement.

The worker said he doesn’t have much confidence in the statement.

“This just shows that Vail does not understand the H-2B program,” the worker said. “Vail doesn’t cancel the visas, the government does.”

‘They didn’t know’

The worker said the most flagrant example of Vail Resorts not recognizing the responsibilities associated with the H-2B worker program came March 23, when the workers informed management that Vail Resorts is required to notify the Department of Labor and the Department of Homeland security that the company had separated their H-2B visa workers from employment.

“We were the ones who told them this,” the worker said. “They didn’t know.”

Two days later, Vail Resorts attorneys sent letters to the departments of Labor and Homeland Security, the worker said. The fact that the company notified the employees in writing March 20, and earlier still in a verbal conversation, demonstrates that management was aware of the separation for a period of time that is longer than the government’s two-day allowance, the worker said.

Simek said that a March 20 notification of separation in writing to employees, followed by a March 25 letter to the Department of Homeland security, could indeed lead to an investigation and fines for a company, as federal regulations state that the Department of Homeland Security must be notified no later than two works days after the company discovers an H-2B worker has been separated from employment.

“They potentially could (be fined,)” Simek said. “There’d be a formal investigation of it, and if it was found that the employer didn’t meet all the requirements, potentially they could be, it would depend on the investigation.”

Letter from attorney

When the workers asked for documentation of Vail Resorts’ efforts to notify the Department of Labor of their situations, the workers received a letter from the company’s attorney, rather than any communication from a human resources person. That was consistent with the communication efforts this season, the worker said, as the workers no longer had an HR person on-site to talk to.

In years past, the HR manager was “the one you would walk up to and ask any question, and he knows it right off the bat,” the worker said. “He had all the answers.”

This year, with no HR manager on-site, the problem has been compounded, and questions remain about expenses incurred during this time, and who is responsible for sustaining the workers while they’re in limbo.

“The contract’s termination, the effect was OK, but the visas were a big issue,” the worker said. “They should have let us know in advance.”

The worker said their group asked management why their employment contract and — by extension — their visas were canceled before ensuring the company would be able to get the workers back to their home country as agreed upon.

“They weren’t speaking independent, they were speaking on behalf of Vail,” the worker said. “They were saying that Vail tries to protect themselves first, so they got all the information they need from the lawyer, all the pointers — what way to go, what’s the best thing to do — so I guess it came from the lawyer instead of the Vail corporate guys.”