Page 64 - Early Winter 2014

rule leaves many related questions unan- Forest Service seeks to interpret what FLSA commonly referred to as a “seven swered. Does a new base lodge in the changes rise to the level of a modification months” seasonal business exemption, operating plan rise to the level of a mod- of a ski area’s SUP. and second, there is another exemption ification that is “within the scope” of the known as the “receipts test” for ski areas. permit? Does adding mountain biking KEY ExEmptions UnDER Under Section 213(a)(3)(A) of FLSA, if facilities, or zip lines, rise to the level of FLsA FoR sKi AREAs a recreational establishment “does not an in-scope modification to an SUP? And While it remains unclear whether modifi- operate for more than seven months in a what about the acceptance of a new mas- cations to an area’s operating plan or per- calendar year”—less than eight months— ter development plan? Does that consti- mit will constitute a “new contract” for the business is not subject to the federal tute a new contract that would allow the purposes of the insertion of a minimum minimum wage. For most mom-and- Forest Service to insert a minimum wage wage clause, NSAA also emphasized to pop local ski areas that do not have exten- clause into the SUP? the DOL that there are two key exemp- sive summer operations, this exemption NSAA will be strongly advocating tions under the Fair Labor Standard Act should, arguably, protect such areas from to the USFS that such changes are more that exempt most ski areas on USFS President Obama’s minimum wage hike. “administrative” and do not rise to the land from the federal minimum wage Notably, this applies to both ski areas on level of an “out-of-scope” modification requirements. private land and public land. that constitutes a “new contract” for pur- Under Section 213(a)(3) of the The second exemption under Section poses of the minimum wage clause, but Fair Labor Standards Act, private entity 213(a)(3) of the FLSA also applies to ski much will hinge on how aggressively the employers engaged in providing sea- areas on either private or public lands. If sonal recreation directly related to skiing a ski area’s average “receipts” in the lowest on national forest land are likely exempt six months of the year are one-third of the from both federal minimum wage and receipts from the highest six months, then overtime requirements under two separate the ski area is exempt from the federal exemptions. Since these exemptions were minimum wage. In a 2006 opinion letter added to the FLSA by Congress in 1977, from the DOL, the agency explained that courts and even the DOL itself have rec- “the ‘receipts test’ requires that the aver- ognized that ski areas falling under these age revenues from the six months with exemptions are not subject to federal the smallest receipts cannot be more than minimum wage rules. one-third the average of the six months Indeed, the DOL recognized these with the greatest receipts.” exemptions in the agency’s draft proposal NSAA estimates that most ski areas— released in June, stating that President and the overwhelming majority of smaller, Obama’s proposed minimum wage hike mom-and-pop ski areas—will be able to “does not apply to employees who are not take advantage of one, if not both, of these entitled to the minimum wage [under] exemptions from the federal minimum Section 213(a)” of the FLSA. This was wage under the FLSA, and NSAA empha- encouraging, because NSAA emphasized sized these exemptions in challenging that the ski area exemptions to the fed- President Obama’s minimum wage hike. eral minimum wage under the FLSA— While the DOL acknowledged in passed by Congress and signed into law its final rule, grudgingly, that ski areas by President Carter—could not be elim- may be able to qualify under these FLSA inated by the stroke of a pen in an execu- exemptions, the agency also suggested tive order. obliquely that if a ski area on Forest The two key exemptions for ski areas Service land is subject to the Service under Section 213(a)(3) in the FLSA Contract Act (which imposes prevailing are likely to provide ski areas on Forest wage rules for government contracts), ski Service land strong protections from areas still may be subject to the president’s President Obama’s minimum wage hike. minimum wage order, notwithstanding First, there is an exemption under the these FLSA exemptions. 62 | nsAA Journal | EARLY WINTER 2014 w w w. n s a a . o rg NSAA Early Winter 2014 prepressed v5b.indd 62 10/29/14 6:09 PM