Page 62 - Early Winter 2014

Minimum Clarity HUMAN RESOURCES by DAVE byRD, RISK & REGULATORY AFFAIRS DIRECTOR RULES IMPLEMENTING MINIMUM WAGE HIKE RAISE MORE QUESTIONS THAN ANSWERS hen President Obama issued an executive order dramatically raising the minimum wage for fed- eral contractors from $7.25 an hour to $10.10 beginning in January 2015, the two-page document Wleft a lot of unanswered questions. In October, the Department of Labor (DOL) released its final agency rule implementing the order—in 338 pages of confusing regulations—raising more questions than providing answers, particularly as they apply to ski areas. In July, NSAA, along with Colorado The DOL, however, discounted The DOL stated that it intentionally Ski Country and Ski New Hampshire, NSAA’s concerns about the impact on extended the wage hike to any contract submitted extensive comments and argu- small businesses, and claimed that oppo- or “contract-like instrument” that is sub- ments to DOL seeking clarification nents of the wage hike failed to take into ject to the Davis-Bacon Act, the Service of how Obama’s minimum wage hike account that a higher minimum wage Contract Act, the Fair Labor Standard would apply to ski areas on Forest Service would improve employee morale, reduce Act (FLSA), or involves federal lands or land. In the agency’s final rule, the DOL worker absenteeism, and in turn increase property where services are offered to the responded to many of these concerns, overall productivity. general public. In the implementing reg- but the final rule falls far short of true In our written comments, both ulations, the DOL explained that “[t]he clarity for the ski industry. NSAA and Colorado Ski Country asked use of the term ‘contract-like’ instrument NSAA argued that while many of the the DOL to explicitly exempt ski areas in the Executive Order reflects that the larger, destination resorts pay well above from the wage hike because Forest Service Order is intended to cover all arrange- the current minimum wage—indeed, special use permits (SUPs) do not rise to ments of a contractual nature, including nationally, the average hourly wage rate the level of “contracts,” and because ski those arrangements that may not be uni- for the most common ski area positions areas are not “federal contractors” by hav- versally regarded as a ‘contract.’” is well above Obama’s proposed $10.10 ing an SUP. The DOL’s final rule, how- “For example,” the DOL explained wage hike—the 40 percent jump in the ever, makes it clear that President Obama’s in the final rule released on October 1, federal minimum wage would take an minimum wage hike will extend well “the term contract-like instrument would enormous toll on smaller, mom-and-pop beyond traditional federal contractors, and encompass Forest Service permits that ski areas that are least able to afford and specifically covers any business operating ‘possess contract characteristics’ and that absorb such a dramatic increase. under an SUP with the Forest Service. use ‘contract-like’ language.” Notably, the DOL’s final rule on the Your Locker…Your Way minimum wage increase did clarify that a special use permit does not create any •Mechanical lockers federal contractor status beyond the min- •Electronic lockers imum wage, which is helpful. While the •Charging Lockers DOL refused to exclude Forest Service •Self serve kiosks •Cash/Credit Card SUPs from the minimum wage hike, •Resort Card the DOL’s final rule stated unequivo- •RFID Reader cally that Forest Service permits do not •Barcode scanner make ski areas “federal contractors” for Our experts can help you choose other, more onerous federal regulations. the best product and solution for your facility. NSAA argued that ski areas on Forest Service land are not “federal contractors” To learn more, visit: www.americanlocker.com for purposes of affirmative action regu- or call us at: 800.828.9118 lations, veteran hiring preferences, Buy- American rules, and other regulations 60 | NSAA Journal | EARLY WINTER 2014 w w w. n s a a . o rg NSAA Early Winter 2014 prepressed v5b.indd 60 10/29/14 6:09 PM