All Resort lawsuit rolls forward
March 29, 2013
A collective action lawsuit against All Resort Express is proceeding forward as prosecuting attorneys gather the names of past and present shuttle drivers interested in participating in the suit.
"They are pouring in every day," said Joe Wrona, managing attorney of Wrona Law Firm, which filed the suit. "We’ve been getting upwards of 10 a day, and they’ve been coming in like that every day."
Wrona added that at the rate the opt-ins are arriving, he wouldn’t be surprised if they had several hundred opt-ins by May 15.
The suit was filed last fall by seven drivers who allege the company failed to pay their drivers minimum wage and overtime pay, and that they withheld tips.
All Resorts Express denies wrong doing, saying their employees are valuable assets who they treat well, according to Defending attorney Scott Hagen.
The drivers are seeking back pay for the unpaid tips and wages, and for "damages, penalties, attorney’s fees and costs," according to the suit.
"They have had money wrongfully withheld from them by the company," Wrona said. "This is a case for sticking up for the little guy. No one has ever stuck up for these drivers before. But we’re doing it."
The suit alleges that when customers paid for shuttle service by credit card, the company would retain at least 20 percent of the tips.
"The company would internally decide to reclassify that as a service fee. That’s clearly unlawful," Wrona said.
Lead prosecuting attorney on the case Steve Gordon added that employers cannot get out of the obligation to pay employees the tips owed them by relabeling the money as something else.
Gordon said one driver worked 13 hours and made $60 because he was told to sit at the airport but was only paid a per passenger fee.
"And since the season is winding down, he spends most of his time sitting," he said.
Wrona said the resulting wage comes to far below the minimum wage.
"This issue has been discussed at company meetings, but they’ve been basically told to be quiet or your job may be in jeopardy," Gordon said.
Wrona said that the suit originally started with two drivers: a former employee and a man who was let go after filing the lawsuit.
"It took a couple of drivers who were courageous enough to come forward regardless of the consequences," he said. "And we may be able to prove wrongful termination."
A rumor has been circulating among the drivers that the company will terminate anybody they find out has opted in, Wrona said.
"But they are prohibited by law," he said. "If that company were going to take any retaliatory act against the driver or former driver, they would find themselves in very serious trouble very quickly. That would be the single biggest mistake that the defendant in this kind of action would ever take, because I think the courts response would be swift and harsh."
Unlike a class action lawsuit which automatically includes those who fit the class description unless they choose to opt out, a collective action lawsuit only includes those who fit the class description who choose to opt-in.
Drivers employed by All Resort Express since March 15, 2010 who were paid all their tips or who did not receive overtime pay were invited to join the suit against the company.
"Once we get all the opt-in forms back, we have to file them with the court," explained Gordon. "Then we know who is a member of the group that’s going to proceed as a collective action."
All Resort Express will then be responsible for providing to the Wrona Law Firm all the payroll records, timesheets and documents that show the hours worked by the shuttle drivers.
"We can then determine how much unpaid minimum wage and overtime is due, and how much unlawfully retained tips are due," Gordon said.
Hagen said the company is currently completing an internal investigation.
"The company has denied all liability," he said. "It believes it has complied with the law. But it’s had a lot of employees over the years. If there have been mistakes, the company will make it right."
The company has been in business for over 20 years and intends to treat its employees well, he added.
"We deliver a lot of visitors to Park City," he said. "It’s not in our interest to treat our employees badly because they are our ambassadors with the public. The company believes its employees are their most valuable asset and they try to treat them well."
If All Resorts Express chooses to go to trial, it could be another year before there is resolution to the case.
"If they force us to go to trial, then we’ll go to trial, and we’ll ask for every dime that has been unlawfully withheld or never paid," Gordon said. "If they decide they want to resolve this and do the right thing and try to make things right with the drivers and pay them what they’re owed, it could be a lot quicker. But the position the company is taking is one of flat out denial. And so who knows, we’ll see how the landscape changes or doesn’t, depending on the number of people who opt-in."