Lawsuit filed to stop required overtime payments for outdoor Guide Companies
Posted: December 17, 2021 Filed under: Uncategorized | Tags: Arkansas River, Concessionaire; Overtime, Lawsuit, Litigation, Permittee, Wage & Hour Laws, Wage & Hour Regulations 11 CommentsState: Federal
Three Arkansas River Rafting Company owners have sued the federal government over new hourly wage laws. On any outdoor trip, rafting, mountaineering, even mountain biking a guide works long hours. Most guides work 12 and some days a lot more hours in a day. The new regulations would require those guides to be paid time & ½ for every hour after eight hours.
For an outfitter working under a federal permit or concession agreement, as a federal sub-contractor, they must now pay a guide for those extra hours. Since employee costs are the biggest expenses for most outfitters, that this going to price a lot of trips out of 90% of their customers’ ability to pay.
Guides also get fed while on trips, so there are some deductions for those costs in some cases, but not much. Guides are also usually paid a flat fee for the day. A guide paid $100 for an 8-hour day is now going to get a pay raise to the minimum wage at 1.5 times per hour. If a state’s minimum wage is $12 per hour, the guide for each hour after eight will be getting $18 an hour. And that will usually be another 4 or more hours. On a five-day trip that could be as much as another days pay at time and a half, if not more.
Probably, instead of helping guides, it will put a lot of them out of business. The cost of a trip will be so high; the number of trips will decrease, putting guides out of work.
With fewer trips, a lot of outfitters will also struggle. Multi day trip numbers have been declining over the years. Fewer people take the time to have a 3-5-day trip away from phones.
Mistake 1: For the three outfitters starting this lawsuit, they and their fellow permittees pushed so hard to have the Arkansas River become a National Monument, thinking it would increase the value of their permits; it has not, and has come back to haunt them, as many people predicted.
Why Is This Interesting?
Honestly, other than a few rivers such as the Grand Canyon that are only taking the upper class as guests anyway, this will destroy guided trips across the board. Outfitters do not make enough money on a trip to pay wages this high.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Recreation Law 
Has the 10th District Court of Appeals yet ruled on the Bradford v. US DOL appeal and injunction? As of today, this is what is on the NPS Concessions webpage:
Update on implementation of EO 14026
To ensure compliance with an applicable nationwide injunction pending appeal, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the NPS will take no action to implement or enforce the implementing regulations for Executive Order 14026 of April 27, 2021, (Increasing the Minimum Wage for Federal Contractors), codified at 29 C.F.R. part 23, in the context of seasonal recreational services or seasonal recreational equipment rental for the general public on federal lands provided under NPS concession contracts, commercial use authorizations, and commercial leases. This includes those contracts, CUAs and leases that we issued following issuance of the EO and before the injunction or otherwise contain a clause regarding EO 14026 compliance.
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I’ve not seen or heard of a ruling. Normally, those are 9 month waits for the appelleate courts to rule so we have several more months to go.
Interesting statement from the NPS. Do you have a citation for that? Where did you find it? THANKS
Jim
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Jim:
This statement comes directly copied from the NPS website as of today. Please verify this but I found it interesting and of note for NPS concessioners, CUA permit holders, other federal lands permit holders, etc.
https://www.nps.gov/subjects/concessions/index.htm
Stumbled upon it while trying to see if any final ruling had yet been made by your 10th District. This ruling is perhaps the ‘last hope’ for outfitters running multi-day programs in markets where demand is softer and the trips will of necessity become too expensive for the average visitor to afford.
Erin
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Last hope unless you can find people who will pay cruise ship prices.
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Can just see it now…Disney Cruises on the Arkansas. Bring the whole family, let Minnie and Mickey show you a great time! (This will then force Disney to seriously step up the excitement in their It’s a Small World canals.)
I read the arguments in the Bradford case, interesting. When will all the cattlemen in the West grazing their herds on leased federal range land become federal contractors and have to pay their ranch hands OT at $16.20/hour? That becomes some dang expensive beef. May be time to form some alliances with strange bedfellows.
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Jim, I appreciate your opinion about commercial outfitters understanding an interest in protecting the resource.
Why then did they engage the Pacific Legal Foundation? You surely know they are the worst at protecting the environment.
Thanks for providing this information and forum.
Always,
Just Above Lava
Bob
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LOL that is a very different side of the story. The Pacific Legal Foundaiton is probably not costing them anything, free legal work. Put an outfitter in a position where he/she has to decide between business & the enivornment and most choose business. But….. 🙂
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My back ground of 50 years is in Forestry and Agriculture business. About ten years ago I got interested in commercial guiding. When I first got into guiding. I looked in to what the law says about overtime, 1099, how many max hours can a person work, OHSA, etc.
What I came up with was the guiding industry has to follow the same laws and rules, as McDonalds, and someday the guide industry is going to get caught and have to start paying overtime, workman come, OSHA dose apply to your as an employee like every other business, and most of the guiding companies will go out of business, and only the very rich will have guides.
For the most part the guiding industry has been this thing out there that no one relay noticed. But over the past ten years guides have been saying notice us, we are a real business. Well this is what real businesses are like. Well they got their wish.
Rick
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There is an exception for everything you say in California that was adopted in Colorado. OSHA does not apply to most guide businesses because they don’t have 50 full time employees year round. Employees paid a daily wage or a salary are exempt from wage & hour rules. There are a lot of exceptions to what you post.
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Fewer outfitter trips? I don’t see the problem.
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Meaning less protection for our rivers. Rivers are protected by commercial clients, not enthusiasts. The money to protect the rivers comes from commercial clients, not enthusiasts. We lose commercial trips, we can lose the rivers.
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