Retailer explains overtime violations
November 7, 2014
When the U.S. Department of Labor announced in February that 39 Aspen-area businesses had agreed to pay $500,000 in back wages to 1,000 employees following a two-year investigation into violations of federal wage and overtime standards, Performance Ski did not make the list.
That's because the probe of the retailer, a winter clothing and sports-equipment shop on East Durant Avenue with locations in Vail and Snowmass Village, had yet to begin.
But Labor Department records obtained by The Aspen Times through a Freedom of Information Act request show that an investigation of Performance Ski was conducted in the spring and resulted in total overtime liability of $10,758 owed to 27 employees. The investigation covered a period from April 2012 to April 2014.
The stores' owner, Tom Bowers, agreed to pay the $10,758, plus an equal amount in liquidated damages, to the 27 workers on July 4, according to a department narrative of his company's violations of the Federal Labor Standards Act.
"Mr. Bowers stated that he thought his establishments were of the ski industry and the ski industry workers were exempt from the overtime under the Colorado statute," the narrative says. "Mr. Bowers was informed that his establishments are retail stores."
Reached for comment Thursday, Bowers explained that he misinterpreted Colorado law with regard to overtime rules for ski-industry workers. He has since learned that federal labor laws supersede state legislation in that regard — and regardless, his company would not have qualified for the overtime exemption anyway.
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"We just didn't pay overtime," Bowers said. "I read the (state law) loosely."
The state law to which he refers says that ski-industry employers of workers "performing duties directly related to ski area operations for downhill skiing or snowboarding, and those employees engaged in providing food and beverage services at on-mountain locations," are partially exempt from paying overtime.
Bowers said he agreed to the Labor Department's assessment of his company's infraction and paid current and former employees the overtime as it applied to the two-year investigation period, plus an equal amount in damages. Therefore, if an employee was owed $500, the worker actually received $1,000.
Bowers said his records show that the violations amounted to $10,104, a figure that doesn't match the Labor Department's figure of $10,758.
Bowers said one thing he learned from the process was that labor investigators work strictly by the book.
"You can't negotiate with them," he said. "It's cut and dried. And they do this (with companies) thousands of times every year, all over the country."
By accepting the Labor Department's findings, Bowers said he avoided further penalties and a potential lawsuit.
He said his stores are like many in the ski-resort industry that are seasonal. During the December holidays and spring break in March, employees are often required to work long hours to accommodate visitors looking to purchase or rent ski equipment.
One problem he's had over the years, he said, is that some employees take time off during the busiest weeks of the year and don't notify him until the last minute. That means that the worker who is covering the shifts of the vacationing worker ends up with too many extra hours.
"We've been very flexible with our employees when they've needed time off," he said. "But when we are busy, it's impossible to say to an employee, 'The bell just rang for you; you have to leave.' How important is the Christmas season to this valley?"
A former Performance Ski employee interviewed for this story had a different view of the situation, however.
The man, who declined to give his name, said that during busy times, workers often were made to stay at the store for 14 hours at a time, without breaks. He said anytime he would ask about overtime pay, his bosses would lose their tempers.
In addition, employees were not offered health benefits or ski passes, the employee said.
"Nothing is flexible," he said. "They demanded a lot from us and often paid us late."
The employee added that while Bowers' company paid the overtime assessed over the two years covered by the Labor Department investigation, he was not reimbursed for overtime he worked prior to that period.
But Bowers, who has been doing business in Aspen for 27 years, noted that he pays his employees well, starting many of them at $18 per hour. It's not as though they were making minimum wage and were being denied overtime based on a low rate of pay, he said.
Bowers said the investigation calculated a total amount of 500 overtime hours in the two-year period. The workers got paid for the hours they worked; he just had to make up the difference between base pay they received and time and a half, plus the damages.
Bowers added that he has changed his payroll systems to make it easier for him to calculate overtime.
"I'll think twice about letting employees cover other people's shifts," he said.