Suit over tips

YC disturbed by allegations from members of “team Jamaica”
“We find these allegations deeply disturbing. Yellowstone Club values all of our employees.”—The YC’s response to a class action suit filed by former Jamaican H-2B employees.

For many on “team Jamaica,” last winter was the beginning of a mutually beneficial relationship. Around 84 Jamaicans relocated to Montana for the 2017-18 ski season in order to fill a variety of hospitality positions at the Yellowstone Club. 

In an email from the YC this past June, the private club begins with an enthusiastic “Hello team Jamaica!” before promising, “We will be in touch regarding next winter season soon.”

 The club reports “a significant number” of Jamaican workers will return for the 2018-19 ski season. 

A handful who won’t return are part of a recently filed lawsuit over tips allegedly owed to servers and bartenders. 

“We are constantly running short of Bartenders… this is a critical position we need to fill,” states an employment document included in the lawsuit submitted to federal U.S. District Court in Montana on Sept. 20.

The suit goes on to allege the YC recruited Jamaican workers using the H-2B program, but then denied these staffers the full compensation owed to them. The Yellowstone Club refutes the allegations raised in the lawsuit and it’s unclear how many Jamaican staffers support the suit.

“During their employment at the Yellowstone Club,” asserts the class action complaint, “Plaintiffs and those similarly situated suffered from illegal pay practices.”

The suit only names five ex-employees—Nicholas Douglas, Tasheka Bryan, Junior Harris, Marcus Richards and Stephanie Smith—before alleging they were intentionally denied “$400-$600 a night at the nicest restaurants” where tips are automatically factored in as a service charge. 

At the end of last winter, the Jamaican YC staffers approached the Southern Poverty Law Center in Alabama, which referred the case to another legal nonprofit—Towards Justice—in Denver. The YC’s Jamaican staff told their attorneys they complained all winter about the missing wages. These bartenders and servers reportedly watched as their non-Jamaican coworkers collected tips while they received only hourly wages in their paychecks. 

On Oct. 1, the Yellowstone Club responded to the suit in a statement, saying, “The H-2B visa workers were not employed by Yellowstone Club, and instead, were employed by a widely used hospitality staffing company with expertise in the H-2B visa programs for resorts, hotels, and private clubs throughout the United States.”

Hospitality Staffing Solutions based in Atlanta, Ga., according to court documents, “was hired by Yellowstone (Club) to assist in acquiring, supervising and administering Jamaican workers.”

Through spokesperson Chris Tofalli, HSS declined to comment “due to pending litigation.”

In its email to the Jamaican workers, the YC tried to clear up any confusion, stating some of the missing wages were covered in bonus payments the workers received. The YC then told the Jamaicans, “Unfortunately, HSS also took money out on some of you which we did not expect them to do… in cases where there was damage to your cabins, HSS took money out. We can’t do anything about that.”

HSS housed their employees at the 320 Guest Ranch. 

After asking about the missing wages last winter, the court documents allege, “Those who complained were threatened with being sent back to Jamaica if the complaints continued.”

Meanwhile, the cycle repeated following each paycheck, according to the complaint, as the, “Defendants blamed the other, with Yellowstone claiming HSS was responsible for payroll and HSS claiming the decisions governing payroll were made by Yellowstone.” Those Jamaican staff returning this winter will be employed directly by the YC. 

At some point in the middle of the 2017-18 ski season, alleges the complaint, “There was a meeting between HSS CEO Tim McPherson and the Jamaican servers, cooks, and bartenders… In that meeting, Mr. McPherson stated that black Jamaican H-2B would not receive tips because '[they] were not from here.'”  

The suit continues: “For example, black Jamaican H-2B workers were denied transportation on Yellowstone Club employee shuttles. One shuttle driver (identified only by a first name), an agent of Yellowstone, refused to allow black Jamaican H-2B workers to ride his hourly shuttle to and from the nearby town of Big Sky. (Shuttle driver) claimed that the Yellowstone Club policy was to refuse to take black Jamaican H-2B workers back to town on the shuttle because they were Jamaican.” 

When challenged about how attorneys at Towards Justice vetted these incendiary charges, a spokesperson said the same claims were made by multiple witnesses.

There’s no specific evidence presented in the current court file showing the Jamaicans’ alleged trouble with the shuttle driver was anything more than an unfortunate encounter with a difficult shuttle driver.

The file does offer another anecdote about the shuttle driver: “On another occasion, Plaintiff Douglas was told by (shuttle driver) that black Jamaicans should ‘speak English’ when they rode the bus, or he would ‘run this f*&^%g bus over the cliff.’ He was angry because he could not understand the black Jamaicans’ accented English.” 

The Jamaicans’ suit alleges it all adds up to “a fraudulent scheme to induce Jamaican workers to work at the Yellowstone Club by making false representations” to not only the workers but the Jamaican Ministry of Labor and U.S. Dept. of Labor.

On the job, one plaintiff was allegedly “required to clean fryers while non-black, non-Jamaican, non-H-2B cooks were not required to do this dangerous and unpleasant job.”

There were other alleged unpleasantries, including the charge that Jamaicans were relegated to the “low-end Yellowstone Club restaurant” and not allowed to work high-paying special events. However, other than observations made by the plaintiffs, nothing in the complaint shows management decisions were based on a bias instead of the skills and seniority of available staff. 

David Seligman, attorney and director at Towards Justice, described his Jamaican clients as a courageous group of workers who came forward via the Southern Poverty Law Center to vindicate their rights.

“This case illustrates how low-wage immigrant workers are constantly exploited, even under the noses of the very rich and the very powerful,” said Seligman.

“The black Jamaican workers we represent allege they were paid worse than the non-black, non-Jamaican workers they worked shoulder to shoulder with every day,” added Mary Jo Lowrey, managing attorney at Lowrey Parady, a law firm in Denver working with Towards Justice on the case. “We believe this alleged uniform poor treatment of black Jamaicans warrants certification and trial as a class action so that every black Jamaican H-2B worker at the Yellowstone Club can be paid the same as their co-workers.”

So far, the class action only names five of the more than 80 Jamaican staff who worked at the YC last winter. 

In its initial statement responding to the suit, the Yellowstone Club doesn’t address each charge specifically. That could come later in a formal legal refutation and filing of evidence countering the Jamaicans’ claims. 

For now, the YC sums up the situation like this: “We find these allegations deeply disturbing. Yellowstone Club values all of our employees as well as those individuals providing services to Yellowstone Club as an employee of a third party contractor, and we continue to strive to be the work place of choice in Southwest Montana. We take any claims related to employment and work place issues very seriously and are currently investigating the allegations in the complaint.”

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