Court Temporarily Suspends Federal Contract Minimum Wage As Applied to Certain Seasonal Recreational Operations

The Court of Appeals for the Tenth Circuit has suspended the enforcement of regulations which impose a $15 minimum hourly wage on many concession contracts and permits to the extent those authorizations are “in connection with seasonal recreational services or seasonal recreational equipment rental for the general public on federal lands.”  The regulations had been in effect as of January 30, 2022 and where issued pursuant to Executive Order No. 14042.  While the court held that the plaintiffs had “demonstrated an entitlement to relief” from the regulations “in their particular circumstances,” the court did not provide any further information as to the reason for its determination.  The suspension will stay in place until the court issues a final decision in the case.

A brief summary of the events which led to the current court action is set out below:

• Executive Order (EO) 14026 was issued in April 2021.
• Federal regulations implementing EO 14026 were issued November 24, 2021.
• The regulations raise the minimum wage to $15 for most new USFS campground permits issued on or after January 30, 2022 (a prior EO and regulations had imposed a lower minimum wage for authorizations issued as of 2015).
• The regulations also removed a prior regulatory exemption (previously set out at 29 CFR 10.4(g) and issued pursuant to EO 13838) which exempted certain seasonal activities authorized under Forest Service and other federal special use authorizations such as camping, hunting, horseback riding and mountaineering activities, from any federal contract minimum wage.
• Many lawsuits have been filed challenging the regulations which implement the $15 minimum wage.
• Most of these lawsuits challenge the regulations in their entirety.
• These lawsuits are currently pending.
• If successful, these lawsuits would not only invalidate the $15 minimum wage, they may also result in restoring the exemption for seasonal campground operations from any federal contract minimum wage.
• One of the lawsuits challenged the regulations only as they applied to seasonal operations, which includes seasonal campgrounds.
• In that lawsuit, the Tenth Circuit has preliminarily enjoined any enforcement of the regulations imposing at $15 minimum wage on seasonal operations while the case is being resolved. (There has been no preliminary injunction as to the applicability of the regulations to non-seasonal operations.)
• The preliminary injunction issued by the Tenth Circuit may also mean that, as of now, seasonal campground operations are not subject to any federal minimum wage.