H- (Not) 2B

On Wednesday, snowmaking equipment at Canyon Lodge was poised and ready for colder temperatures that began to roll into town that evening. While more snow on the Mountain will eventually show up, international employees will not. (Photo: Kirkner)

MMSA withdraws second application for foreign labor certification

A recent announcement by Mammoth Mountain Ski Area (MMSA) that that Mountain has withdrawn its second application for H-2B Foreign Labor Certification is, according to one international employee, “heartbreaking.” But for some domestic employees, this withdrawal may be perceived as an opportunity.

Last week MMSA broke the bad news privately to its international employees: after a lengthy battle to secure H-2B Certification, the Mountain decided to withdraw its application. MMSA informed the Department of Labor (DOL) of its decision last Monday, Nov. 28.

“We wish the outcome was different,” said MMSA Senior Vice President Pam Murphy, “but this has been a process

where we’ve been fighting the whole time.”

As The Sheet reported in early November, the Mountain’s first application for an H-2B Certification, which allows MMSA to employ non-student international workers, was denied by the DOL after a protracted application process. MMSA decided to apply a second time in the hopes that international employees might still return to work in January or February of 2012.

On Nov. 23, the DOL sent the Mountain a Request for Information (RFI). “It’s not like [the information] they were asking for was impossible to get,” explained Murphy, “but some of it felt like delay tactics.” Murphy and others were suspicious of the date the RFI was sent to the Mountain — the day before Thanksgiving — when the Mountain only had a certain number of days to respond. In the end, Murphy said, MMSA decided that its chances of securing an H-2B Certification were so slim that it had no other choice than to withdraw. “Their RFI caused a further delay so we wouldn’t be able to get staff  in a timely way even if the application was approved,” Murphy said.

Most of the international staff contacted were “very understanding,” said Murphy. “They thanked us for going the extra mile.”

Some domestic staff, however, have expressed their disapproval of the H-2B program and may view the withdrawal as a victory. Several employees contacted The Sheet anonymously to respond to the Nov. 4 story, “No American Express for visa applicants,” and to speak against the Mountain for what they perceived as unfair labor practices related to the H-2B program. In the opinion of one, “The people of this community are figuring out the abuse of the H-2B visa program and are not surprised to see that the [Certification] was denied.”

In an anonymous letter sent to The Sheet on Nov. 13, MMSA employee “Jane Doe” alleged that MMSA has been falsely advertising job positions for years in order to ensure that H-2B visa applicants are guaranteed employment at the Mountain.

According to Doe’s letter, while MMSA Senior Vice President Pam Murphy “was correct in stating that there are not enough U.S. workers to fill PSIA [Professional Ski Instructors of America] Level 2 and Level 3 instructor positions … she did not disclose that the ski school is seeking other H-2B positions for which there are enough qualified U.S. workers to fill the positions.”

Doe pointed specifically to an Oct. 29 advertisement for a Snowsport Level 4 Instructor job (Level 4 is not an actual PSIA level, but denotes a supervisor position) that had been held for many years by an H-2B applicant. “The requirements [for this job listing] are higher than the qualifications currently held by supervisors, making it impossible for anyone to apply for the job,” Doe said. “The Ski School Director position,” which she believed was the job in the advertisement, “has never been honestly advertised in the past or present. This position is highly sought out in the Ski industry and pays over $30 an hour. Advertise the job truthfully and I guarantee there will be enough U.S. applicants who are qualified for the position.”

Although leery of commenting on any accusations made anonymously, Murphy responded to this and other issues discussed by both domestic employees.

Regarding the Snowsport Level 4 Instructor advertisement, she confirmed that the job had been held by an Australian who had been with MMSA for more than 10 years, and that he is still “definitely interested in that

job.” However, she did not agree that the position had been advertised with impossible-to-meet standards. The standards are high, she said, “Because Snowsport Level 4 is the highest level of supervisor. People in our school who would have the level of experience needed [for the position] are typically managers and directors.”

Murphy also addressed Doe’s second example of a falsely advertised job, Recreation Worker 2, which Doe claimed “most of the people on the school have figured out … is an Administration Supervisor job, which is currently held by a foreigner.”

“It’s completely untrue that the advertisement is written for the previous job holder,” Murphy responded. “We do have a couple of domestic applicants who we’re looking at it.” Murphy added that hiring is based on experience, and experience comes with more time spent in a particular position. “The H-2B person who had that position excelled in it,” she said. “But if there was a domestic employee with those qualifications, we’d absolutely hire them first. All job descriptions are written around the needs of the job, not the person.”

Yet Jane Doe seems to be under the impression that international employees are first in line for higher level ski and snowboard school jobs. Several current domestic ski and snowboard instructors offered their thoughts on the issue off the record, the gist of which is that foreign instructors tend to make a career out of instructing, and therefore acquire the PSIA Level certification, hours and experience to qualify sooner for higher-ranking jobs. Murphy agreed with this opinion. “Foreign employees tend to do this as a year-round job,” she said. “So sometimes they’re more apt to apply for supervisor positions.”

She elaborated that even qualified domestic employees sometimes choose not to apply for supervisor positions out of preference for instructing. “One thing that’s definitely happened in the past is that when we list supervisor jobs, it’s a challenge for a good-performing [domestic] instructor to decide whether to be a supervisor,” she said. Murphy likened this decision to that of a waiter choosing whether or not to become a manager.

However, the second anonymous responder, “John Smith,” expressed frustration that, like many international employees, he had been trying to pursue a full-time career in instructing, and felt his efforts had been thwarted by preferential treatment given to H-2B instructors.

Smith, a five season ski instructor, argued that “it seems the H-2B employee has a guaranteed number of hours, and the American citizen doesn’t. Really it’s not fair, because a more experienced instructor with more seasons on the Mountain is getting sent home as an H-2B person is getting put to work.” Smith believed that the hourly guarantee for H-2B employees was part of the visa program. “Myself and other ski instructors commiserate about this,” he said. “It’s not good for morale. I feel that now [that the H-2B Certification has been denied] there are more opportunities for American citizens working in the sports school. We won’t lose work to an H-2B person due to the rules of the program.”

Murphy’s response: “We never guarantee hours. Hours in ski and snowboard school are determined by snow and customer demands.” Murphy did clarify that, per H-2B program rules, international employees must be hired full-time. “We can’t hire international employees into a part-time position,” she said, “but we do not give preference to international over domestic in full-time.”

As for why Smith might believe that international ski instructors are guaranteed more hours over their domestic counterparts, Murphy speculated that this might simply be one employee’s perception. She explained that many hours for instructors are provided by requests from previous students. “Because some employees are long-time returning employees, they do get more requests,” she said. “We have some employees who, were we to fill every request, could work 7 days a week.” But Murphy clarified that this applies equally to long-time domestic and international employees. Therefore she could not provide an explanation for Smith’s belief, other than it might simply be an issue of personal performance and perception.

One thing is certain: the H-2B Certification denial did open up new opportunities for domestic employees. “We do have supervisor positions available this year,” Murphy said, although she explained that the openings are partly the result of the H-2B denial, and partly the result of some previous supervisors advancing to new positions, like Sledz Manager.

“Emotionally, a number of people are impacted on both sides of the equation,” Murphy said. But she maintained that, “The Mountain operates first and foremost to the law. We’ve been audited; we’re watched. We operate to labor laws. History shows that.”

These allegations and Murphy’s rebuttals might seem moot, now that MMSA has withdrawn its second H-2B application. However, Murphy thinks that “the government isn’t very much for the program at this time … we’ll definitely watch the political environment and apply again if we think there’s the opportunity to get [certification].”