Touchstone To Open Brewery

Touchstone Climbing announced early this week that they have begun work on Touchstone Brewing Company, a microbrewery in Sacramento, California. The brewery will be next to Sacramento Pipeworks, and will include a taproom on-site to give their members and guests a place to hang out after a good climbing session or work out.
New Touchstone Brewmaster, Ryan Campagna.  Photo: Touchstone
New Touchstone Brewmaster, Ryan Campagna. Photo: Touchstone
“We’ve been talking about building a taproom on the Sacramento Pipeworks property for years,” said Pipeworks General Manager Markham Connolly. “But it always seemed like a pipedream, until we found the right man for the job.” Touchstone has hired Brewmaster Ryan Campagna to brew and manage Touchstone Brewing Company. “This project was so unique and we knew we had to find someone to champion the effort,” said Touchstone Climbing CEO Mark Melvin. “Ryan has been a part of the Touchstone community for years and we’re excited to share his passion for craft beer and the climbing community.” As an avid climber and mountaineer, Compagna began climbing at The Studio in San Jose when they opened in 2011. “When I heard that Touchstone had been considering a brewery at Sacramento Pipeworks, I immediately reached out,” said Campagna. “The idea of running my own brewery, next to a climbing gym, 1 hour away from the mountains… it was almost too good to be true.”

Pintworks

Touchstone Brewing Company will be an 1800 sq ft brewery with a 2600 sq ft tap room, along with a shaded outdoor beer garden. The taproom itself, affectionately dubbed Pintworks, will offer beer, beverages and food. “We’re including a pizza oven in the plans,” said Melvin. “Along with non-alcoholic drinks. While we’re very excited about being the first climbing gym in the USA to brew its own beer, we also want to build a place on-site for the community to come together over food and drinks.” The brewery will be a 7 BBL system, capable of about 728 barrels of beer per year. In layman’s terms, that’s 180,544 pints. “I’m planning on brewing a variety of rotating beers, and hoping to get started with eight on tap,” said Campagna. “We’ll have something for everyone!” “Along with brewing for on-site sales at Pintworks, Touchstone Brewing Company will be creating special batches for events at Touchstone Climbing gyms like TCS competitions and community events,” said Campagna. “We’re also excited to be able to brew for non-profit fundraisers and climbing outreach events.”

Monument Rolls Out Insurance Innovations

DSC_0269 [SPONSORED CONTENT] When the Monument Sports Group and its insurance partner, The Specialty Insurance Group (SIG), began managing the insurance program of the Climbing Wall Association (CWA) three years ago, some CWA member gyms were left without any coverage whatsoever, according to CWA CEO Bill Zimmerman. “Now I am confident that all of our members have acquired coverage, or at least been afforded the opportunity to acquire quality insurance through our program,” says Zimmerman. Monument offers General Liability, Umbrella/Excess, and Property insurance which provide excellent coverage, competitive premiums and easy payment options to help climbing gyms, wall builders, flooring companies, hold companies, and any CWA members better manage their businesses. After working hard with insurance companies to expand options for CWA members, here are a few new options Monument recently rolled out. Affordable Worker’s Compensation To non-climbers – especially insurance companies – climbing gyms are inherently risky environments, considering routesetters spend multiple hours per day with power tools and buckets of holds at significant heights. All climbing gyms should acquire general liability coverage, but worker’s compensation is mandatory for businesses and regulated by each state based mainly on number of full-time employees. Gym owners must understand that regardless of cost, this insurance is necessary to running their businesses. Luckily, Monument is decreasing the cost of Worker’s Compensation while also providing additional options. “Climbing scares insurance underwriters because most of them don’t understand the sport,” says Mark Grossman, president of Monument. “Climbing at height is a scary proposition to them, both for employees and patrons, so the biggest part of the process from day one – and the biggest part of the success of our program – was and continues to be explaining the procedures to create a greater understanding of all the risks associated with climbing”. Just as a climbing gym will differentiate itself in order to offer better prices to a specific climbing clientele, so too does specialization in insurance offer lower prices to qualifying members. That is why Monument fought and won the battle among underwriters to classify climbing gyms as sports facilities – like indoor soccer arenas – rather than places of amusement, often much riskier activities like trampoline palaces. As a result, Monument is now offering an affordable Worker’s Compensation program for the climbing industry. While prices vary by state, all climbing gyms can expect lower prices with Monument than most alternatives. “When you concentrate in a niche, you are going to be a lot better at it,” says Grossman. “That specialization built on a foundation of better risk management allows for lower pricing in the short and long term.” Monument was not alone in the battle to solidify climbing as sport in the eyes of the insurance industry. Grossman cites the CWA, as well, as being influential in the early stages. “The CWA staff was instrumental in advocating for the interests of the industry, educating the underwriters, and working with loss control to make sure climbing gyms had a sound insurance program,” says Grossman. Thanks to the CWA and Monument, they now do. Incentives to Improve Risk Management In addition to offering a better Worker’s Compensation program, Monument is also pushing forward risk management standards of the climbing industry. By working with insurance carriers to secure credits – or discounts – on key precautionary features, Monument is making it easier for climbing gyms to justify investing into gym risk management. “Just by the nature of the sport, climbers tend to be very conscious of risk,” says Monument staff member Will Jorgensen. “Gyms are already amenable to changes which increase risk management at their facilities, and we are enabling gyms to make these changes.” The CWA Climbing Wall Instruction certification program (CWI) which standardizes climbing wall instruction is not old, and already both courses offered by the CWA each year are sold out on a regular basis. Surveillance is becoming the norm at larger commercial facilities, and while Jorgensen estimates about only 30% of gyms they currently work with use defibrillators, he says that number is growing too. Heart attacks are not common in climbing gyms, but Jorgensen says they have happened before and that a defibrillator may have been helpful for such. Fortunately, Monument is negotiating credits on all of these options for members. Installing precautionary features has a financial benefit as well. If enough gyms raise their standards and underwriters identify a significant decrease in risk, then insurance premiums may decrease across the board for all members. In this way, Monument is transforming the pricing landscape for climbing gym insurance. “We want to be able to justify the cost of gym owners spending money to better manage risk at their facilities,” says Grossman.”The total cost may not be justified in one or two years, but over time this investment will help lower premiums for the specific gym, and for the industry as a whole. Achieving better claim results by helping our members manage risk now – and into the future – will make everyone’s insurance rates go down.” Balancing Tradition with Innovation The goal with development is to add something new without compromising what is already working well. Despite offering new insurance and risk management options, Monument continues its strong tradition of personalized risk management which caters to the specific needs of each gym. One gym that has certainly benefited from such is Summit Climbing Yoga and Fitness. According to Stan Borodyansky, co-owner of Summit, Monument performed a comprehensive risk assessment of Summit which included a list of possible improvements and personal testing by Monument staff acting as “secret shoppers.” While customer waivers are the norm at commercial climbing gyms, Borodyansky says Monument helped them decrease their liability further by advising introductory orientations be provided and documented as well. “It seems nowadays the waiver is not enough,” says Borodyansky. “Otherwise people can say, ‘I signed a waiver, but you didn’t teach me right.’” Now, Summit requires customers to complete the orientation every year, and they require employees to review the orientation process and perform such for a manager every quarter so that errors do not slip through the cracks. Summit also selected attention-grabbing vocabulary for their orientations, removing the word “safe” and reminding new climbers upfront that climbing is always dangerous, despite instruction. “From a liability standpoint, they definitely helped us back ourselves up,” says Borodyansky. As for innovations, Summit already has surveillance cameras at every angle to capture both climbing and non-climbing related incidents, but Borodyansky does recognize the need for defibrillators and Worker’s Compensation too. Should he pull the trigger on acquiring credits for such, he knows Monument will be ready. “They gave us a good rate, and it also seems like Mark Grossman – despite Monument being a huge company – is always available,” says Borodyansky. “Anytime we need anything they are always there for us.” Summit is not alone in their appreciation of Monument. Bill Zimmerman, CEO of the CWA, states the following: “I am very happy we found The Monument Sports Group; moving the program forward has been a huge success and a great benefit to the members. It is great to work with a company that specializes in sports facilities and takes underwriting seriously. I believe the program will thrive with the Monument Sports Group and SIG as CWA partners. The program is in the best position it has been in in a decade.”   This story was paid for and produced by Monument Sports Group with support by the Climbing Business Journal advertising department. The Climbing Business Journal news organization was not involved in the creation of this content.

360 Comes To America

The Eastern European climbing hold and volume maker, 360, is making the leap across the Atlantic with a new distribution deal with Element Climbing and Rockwerx Canada.
Just a few of the 360 holds and volumes available now in the US and Canada.  Photo: 360
Just a few of the 360 holds and volumes available now in the US and Canada. Photo: 360
360 is a Slovenian-based grip maker which started production only a year ago. But in that short time they’ve made quite an impact. They recently made social media headlines with the all-volume route at the new Mesa Rim Climbing Center in San Diego. They have also been making the rounds through some of the most prestigious comps in the world, including the Kranj Lead World Cup, Dutch National competition, Catalonia Boulder Open, Canadian Youth and Open Nationals as well as the European Boulder Championship in Innsbruck. The new partnership will allow North American routesetters the ability to purchase 360’s mega huge volumes without the added cost of overseas shipping.

Climbing For Seniors

Can't stop, won't stop at Vertical World.  Photo: Vertical World
Can’t stop, won’t stop at Vertical World. Photo: Vertical World
By Jack Simonson Climbing is geared towards the young and unruly. The history of our sport lends credibility to this notion: Yosemite renegades in the 70s; brightly colored spandex-clad sport climbers out at Smith Rock in the 80s; the emergence of bouldering as a discipline in its own right in the 90s; and the booming competition scene in the 2000s; all of this dominated by younger climbers in their 20s and 30s. Older climbers have always been around, and often have continued to push limits in the sport (Yuji Hirayama comes to mind), but they are in the minority. Indoor climbing, in particular, has been dominated by younger crowds. For example, at this year’s USAC Open Bouldering Nationals, five of the top ten women and four of the top ten men, including both national champions, were youth competitors aged 18 or under. Each year, events like these seem to be become even more crowded with young talent. While climbing may seem a young person’s sport on the face of it, climbing truly is a lifelong sport and an activity for all ages. Part of the allure of climbing is that there is something offered for people of all abilities and sizes. You can be 14 and climb V10 or 75 and climb 5.6, it doesn’t matter as long as you’re participating. Indoor climbing has begun to market itself as a place for all people to enjoy climbing, no matter how they do it, and part of this marketing is directed specifically at older customers who are new to the sport. Older customers can provide a sizeable pool of potential members, and gyms looking to increase their membership numbers and diversify their clientele can look to the senior population.

The Over 55 Set

According to Stella Moll-Nevins, Program Director for Vertical World, members 55 and older in Vertical World gyms make up only approximately 5% of their total membership. These numbers are not reflective of the percentage of the population comprised by those 55 and older, so what is holding back older climbers from participating in indoor climbing? “People who didn’t start young can often feel too intimidated or discouraged to try it at a later age,” Moll-Nevins says. “Any older adults have the physical ability to rock climb, as well as the available means and time. All that remains is for us to effectively reach out and invite them in.” Many gyms around the country offer discounts for seniors in order to help incentivize them, but by developing programming designed specifically for older climbers, gyms could see a real difference in their number of senior members. Vertical World in Seattle has begun to offer a program called “Over the Mountain … and Beyond” which, according to Moll-Nevins, is geared toward people 55 and older with little or no experience with climbing. This program offers multiple beginner-level classes that older climbers who are new to the sport can sign up for. The goal of these courses is to, “Teach them to be self-sufficient in a top-rope indoor climbing setting,” says Moll-Nevins. In our interview, Moll-Nevins stated that part of what makes Over the Mountain great for seniors is not just restricting the age limit for participation, but designing the program around senior’s specific needs. “Classes take place in the middle of the day, when there are fewer distractions and no other organized events happening in the gym,” she explains. Offering classes for older climbers in a low-key, less intimidating setting could be helpful in encouraging those who are hesitant to make the decision to try climbing. By teaming up with senior centers and other groups aimed at keeping the older population active, Vertical World is looking to encourage older customers who are new to climbing to join in on the fun and reap the benefits of maintaining an active lifestyle. Warehouse Rock Gym in Olympia, WA has taken a slightly different approach in order to engage their older members. Warehouse is an active participant in the Washington State Senior Games, a multi-event competition aimed at getting people over 50 out and active. According to the WSSG website, “The purpose of the Washington State Senior Games is to keep seniors healthy and productive … The event assists in maintaining a healthy lifestyle and promotes positive healthy activities for the participants, their families and the communities where they live.” As a host member of the Games, Warehouse Rock Gym provides an opportunity for seniors to compete in indoor climbing in a friendly, welcoming environment. By participating in the Senior Games, WRG is opening up indoor climbing to new customers as well as providing older members with a competition that is run specifically for them. Esteban Pinto, Operations Director for WRG, says, “It’s a lot of fun for our senior climbers that don’t take part in any of our competitions throughout the year. It’s really nice to see those members especially get excited and train for this event which is just for them.”

Aging Well

Perhaps one of the best ways for indoor climbing to market itself towards seniors is to emphasize the health benefits of physical activity. According to the National Institutes of Health, “When older people lose their ability to do things on their own, it doesn’t happen just because they’ve aged. It’s usually because they’re not active … becoming active on a regular basis will give you more energy and the ability to do things more easily, faster, and for longer than before.” Being active can be beneficial for seniors’ mental health as well as for their physical health. The NIH claims that “regular, moderate physical activity can help manage stress and improve your mood … help reduce feelings of depression [and] can improve or maintain some aspects of cognitive function.” Specifically, the NIH recommends that seniors engage in activities that target endurance, strength, balance, and flexibility. Any climber knows that these four areas are all required by climbing, whether it is indoors or outdoors, and that one can maintain their mobility or improve in these areas by climbing regularly. In order to engage new members who are part of the older demographic, climbing gyms can focus on providing programming and climbing education that is designed specifically for older adults. Climbing can be intimidating for those who are new to the sport, and especially for seniors who may not feel as spry as they once did. Yet by providing classes and events specifically for older adults, climbing can begin to be seen as a sport that is welcoming to all. The NIH encourages seniors to become active at any age: “Even if you think you’re too old or too out of shape to exercise … it’s never too late to start.” By marketing climbing as an activity for both social enjoyment and as a healthy way to stay active in one’s golden years, gyms may begin to see a rise in the number of their senior members. Encouraging seniors to take up climbing can also help gyms demonstrate that their industry is capable of being a welcoming place for people of all ages, sizes, and abilities, making climbing an even more marketable activity, increasing its visibility in a crowded fitness and health-oriented marketplace.

Planet Granite To Open in Chicago

PG going to Chicago
PG going to Chicago
From press release: April 20, 2016 – San Francisco, California: Planet Granite is excited to announce our expansion to a fifth location in Chicago, Illinois! Slated to open in 2018 with a massive 45,000 square feet of space, it will provide the complete experience for which Planet Granite gyms are known, giving members and guests a tremendous variety of climbing alongside high-quality, diverse yoga classes and fitness offerings. “We have a unique opportunity to build, from the ground up, a custom-designed and truly world-class facility, which will be the largest of its kind in the country,” said Micky Lloyd, founder of Planet Granite. “Chicago is a wonderful city full of athletic and outdoor folks, and we look forward to creating a superb gym for them to train in.” The gym, Planet Granite’s first outside of the West Coast, will embrace the spirit we’ve cultivated since opening 22 years ago: we provide a home for new climbers and experts alike. That means our climbing routes, classes, and community cater to climbers of all ages and levels of experience. At each of our gyms, Planet Granite offers about 50 in-house yoga and fitness classes weekly, which are included with our memberships and day passes. We’re proud to hire experienced yoga and fitness instructors to lead our classes, recognizing that our members are not only climbers—they are athletes, and are passionate about all types of activities. The Chicago gym situated near the north side of the city will offer: Four-story facility Bouldering, top rope, and lead climbing Full schedule of studio-quality yoga classes Dedicated room for group fitness classes Open floor plan fitness space with extensive equipment, including weights and cardio Comprehensive climbing training areas Fully stocked gear shop Spacious locker rooms with additional amenities Planet Granite Chicago will have about 50% more space than Planet Granite’s largest existing gym in Portland, Oregon. “There are several good climbing gyms in town and we look forward to working with them to help grow the climbing community,” Lloyd said. “We are also excited for the growth of Planet Granite and the opportunity that this gives our great team.” The new location will continue a tradition of innovation showcased in our most recent project, our multi-story flagship Portland location, which opened in November 2014 and has been praised in the industry as an example of the next generation of climbing gyms.

Climbing Billboard in Times Square

Automotive News reported the presence of a climbable billboard in the middle of Times Square in New York City. The interactive media piece was put up by Toyota USA to promote their new RAV4 Hybrid. The result was a 10-story climbable billboard in New York’s Times Square that, according to Auto News, blew through the visual clutter of the plaza and created instant buzz on social media.
Getting a grip on marketing in Times Square.  Photo: Automotive News.
Getting a grip on marketing in Times Square. Photo: Automotive News.
“Sometimes, you have to do something that puts some new kind of risk to it,” Jack Hollis, Toyota’s vice president of marketing told Auto News. “It doesn’t really make a lot of sense to have a climbing wall in New York City,” Hollis said, meaning that it was bound to get extra attention. “Our expectations were to get people who would probably not necessarily talk about a hybrid and a climbing wall in Times Square to start talking about it.” Hollis said he considers the campaign a hit. “I’d be lying if I said I could give you the exact return on investment on an outdoor billboard,” he said. “But I will tell you from an expectations standpoint, we’ve exceeded mine, exceeded our company’s.”

Boulders Open in DUMBO

The largest outdoor bouldering park opened this week in the New York City neighborhood of DUMBO. Dubbed DUMBO Boulders and run by The Cliffs climbing gym, the outdoor bouldering area features 7,800 square feet of climbing.
A shot of the DUMBO Boulders. Photo: Joshua Pestka
A shot of the DUMBO Boulders. Photo: Joshua Pestka
According to Habitat, the space can accommodate up to 250 people at a time and at $9 for a day pass, will be quite affordable. Additionally, rental shoes and chalk will be free with entry.

The Law of Employee Pay

punching-the-clock By Jason Pill, Attorney with Phelps Dunbar, LLP Despite various names and titles, almost every climbing gym has the same core categories of employees: front desk staff, belay instructors/monitors, routesetters, and managers. Naturally, these categories overlap as certain employees perform multiple tasks, or the categories increase as gyms expand into larger facilities, increase their market share, or offer more services (e.g., yoga instructors, marketing directors, operations managers, etc.). Of course, no matter how a climbing gym labels it employees, it must pay them lawfully and properly for their time worked, which is more complex than simply giving everyone either an hourly rate or a salary. Because most gyms trace their roots back to humble beginnings which are more akin to a small start-up than a federally-regulated, large corporate entity, it’s not uncommon for gyms to still rely on outdated pay practices that are unlawful or require the gym to pay more than it otherwise would need to under state and federal pay laws. This article provides insight into United States law governing pay practices, primarily focusing on general payroll requirements, properly paying hourly employees, and when an employee can appropriately be paid a salary and exempted from overtime requirements (i.e., paying the employee the same rate irrespective of whether the employee works 20 or 60 hours in a given week). Examining these issues helps climbing gyms ensure their payroll practices are lawful and being utilized in a way to best benefit the climbing gym and ensure profitability.

The Letter of the Law

The Fair Labor Standards Act (“FLSA”) is the federal law that establishes a minimum wage, premium pay for overtime hours of non-supervisory employees, and protections for children who work. The FLSA applies in all states and to virtually every climbing gym. In the unlikely event that the FLSA does not apply to a particular climbing gym, state pay laws will fill that void, because the FLSA permits states to regulate areas not covered by FLSA or to afford workers greater protection. While most state laws parallel the FLSA with little distinction, some states provide much greater employee benefits and result in increased obligations upon the employer (California is, perhaps, the most notable example of a state that offers far greater employee benefits than the FLSA requires). Put simply, the FLSA is the floor and states can go up from there. The Wage and Hour Division of the U.S. Department of Labor (“DOL”) administers and enforces the FLSA, and can investigate potential FLSA violations. Hopefully, your climbing gym has never received a letter from the DOL or been subjected to a costly DOL audit regarding FLSA compliance. Although the FLSA covers a wide range of compensation and benefits issues, there are a number of employment practices it does not regulate. For example, the FLSA does not require vacation, holiday, severance, or sick pay, meal or rest periods, additional pay for weekend or holiday work, pay raises, or fringe benefits to employees (but, be warned that certain state laws do). The two basic employee classifications under the FLSA are exempt and non-exempt. Non-exempt employees are those employees who do not meet any of the FLSA’s defined exemption criteria and are paid on an hourly basis, which entitles them to overtime hours at a rate of one and a half time their normal pay rate. Alternatively, exempt employees are those employees who meet one of the FLSA exemption tests, are paid on a fixed salary basis, and are not entitled to overtime, even though they may work more than 40 hours in a given workweek. Understanding this distinction is imperative to complying with the FLSA and maximizing the profitability of employees.

Basic Obligations of Gym Owners

Timekeeping records are the foundation of any climbing gym’s payroll practice, lest employees orally report all hours worked and managers rely on memory when writing payroll checks. No matter what practice a climbing gym may use, the FLSA requires employers to keep certain records for each worker paid, especially non-exempt employees paid on an hourly basis. The FLSA does not mandate a particular form for the records, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned. And, not surprisingly, the law requires this information to be accurate, in the event a climbing gym’s practices are ever subject to review by the DOL or a court. The following is a listing of the basic records that an employer must maintain for each employee:
  1. Employee’s full name and social security number.
  2. Address, including zip code.
  3. Birth date, if younger than 19.
  4. Sex and occupation.
  5. Time and day of week when employee’s workweek begins.
  6. Hours worked each day.
  7. Total hours worked each workweek.
  8. Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”)
  9. Regular hourly pay rate.
  10. Total daily or weekly straight-time earnings.
  11. Total overtime earnings for the workweek.
  12. All additions to or deductions from the employee’s wages.
  13. Total wages paid each pay period.
  14. Date of payment and the pay period covered by the payment.
Climbing gyms, like all employers, must keep these records for at least three years, and some states may require that these records be kept for even longer periods of time due to lengthier statute of limitations for employees to bring wage-based claims.

Is Minimum Wage the Minimum?

You might be asking, “Can’t I just pay my employees above minimum wage and not worry about the rest?” Well, you can do that, but you run the risk of violating certain recordkeeping requirements if you’re not properly tracking hours worked and you may be overpaying employees who would be better classified as salaried employees, exempt from overtime. For non-exempt employees, the recordkeeping requirements detailed above are critical and constitute a large portion of the compliance concerns. Assuming the records are in order, another concern is ensuring that all non-exempt employees are properly paid for any overtime hours worked. While most climbing gyms refer to wages for non-exempt employees in the context of a “week”, “pay period”, “the schedule”, or some other ambiguous word or phrase, the timeframe that matters under the FLSA is the “workweek.” With limited exceptions, the FLSA requires overtime pay for any hours a non-exempt employee works over 40 in a single workweek, which is not necessarily the same thing as the calendar week or an employee’s scheduled week or the pay period. The FLSA’s “workweek” is a fixed, regularly-recurring period of 168 hours (specifically, seven consecutive 24-hour periods) that the employer expressly adopts in order to maintain FLSA compliance. The workweek can be set to begin on any calendar day and at any time of day, but thereafter the employer must apply that workweek consistently to comply with the FLSA. So, it’s acceptable to start a workweek on every Wednesday at 3:00pm, so long as it’s communicated to the employees and invariably applied. Along these lines, when calculating whether overtime pay is owed to a non-exempt employee, the climbing gym must look at each workweek, not each two-week pay period. For example, an employee may work less than 80 hours in a two-week pay period, but have worked more than 40 hours during one of the workweeks comprising that pay period. That employee would be entitled to overtime for one of the two weeks, even though a review of the two-week pay period would suggest otherwise. An employer is permitted to have more than one workweek under the FLSA, and the workweek does not have to be the same for every group of employees or for every location. It is possible to establish different FLSA workweeks for different groups of employees or different locations. Variations in work patterns or tendencies in different workforce segments can sometimes mean that it is advantageous to adopt a different workweek for a particular group or location, or even for a few particular employees. Perhaps you want your routesetters on a different workweek that coincides with their setting schedule, but want your front desk employees on a workweek that more closely aligns with a standard Monday-Sunday workweek? This flexibility creates additional administrative concerns, but can allow for pay models that work with the needs of each particular climbing gym. Overtime

To Exempt or Not Exempt?

Against this backdrop, the key question for most climbing gyms is whether employees should be classified as exempt from overtime and, more importantly, when such classifications are proper. Because the FLSA requires certain standards to classify an employee as exempt, it is likely that the majority of climbing gym employees will be non-exempt employees who need to be paid hourly and receive overtime for hours worked over 40 in a given workweek. Some employees, though, will likely qualify for an exemption that allows the climbing gym to decide how to classify and pay the employee. To be an exempt employee, the employee must satisfy one of the FLSA exemption standards. In the context of a climbing gym, there are likely only two categories of exemption that would apply: the Administrative exemption and the Executive exemption. If either of these exemptions apply, a climbing gym can classify that employee as exempt and pay the employee a salary that does not fluctuate based on hours worked, which includes the ability to not pay the employee an overtime premium for more than 40 hours worked in the workweek. To be classified as an exempt Administrative or Executive under the FLSA, the employee must receive a fixed salary of at least $455 per week (approximately $26,660 per year, which works out to $11.38 per hour). This means the climbing gym generally cannot make deductions from this salary if the employee works less than 40 hours in a given workweek; hence the “fixed” part of the salary. This salary threshold alone will disqualify many climbing gym employees, but may still leave several key employees, such as managers, directors, head routesetters, etc., who can properly be labeled as exempt. (Note that the DOL is currently in the process of raising this threshold amount to $921 per week, approximately $48,000 per year or $23 per hour). Assuming the salary prong of the test is met, to satisfy the Administrative exemption, the employee must have a primary duty to perform non-manual work directly related to the management of the climbing gym’s business operations, which includes the exercise of discretion and independent judgment with respect to matters of significance. The regulations interpreting the FLSA provide a list of the kinds of activities that constitute office work directly related to the management or general business operations of the company. These include functional areas such as accounting, purchasing, marketing, safety and health, personnel management, IT, legal and regulatory compliance, and similar activities. Thus, if a climbing gym can demonstrate that an employee performs these duties, the employee can qualify as an exempt Administrative employee. As for the Executive exemption, once the salary prong is satisfied, the FLSA requires that an employee (1) has a primary duty to manage a department, (2) customarily and regularly directs the work of at least two full-time employees or their equivalent, and (3) has the authority to make recommendations regarding changes in status of employees. A primary distinction from the Administrative exemption is that the Executive exemption requires the employee to supervise employees and have a certain amount of input in hiring and firing decisions. Both exemptions focus on management as the primary duty of the employee, but the Executive exemption requires additional duties of supervision over employees. The regulations interpreting the FLSA provide the following non-exhaustive list of duties that generally constitute “management” for the Executive exemption: interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; apportioning the work among the employees; planning and controlling the budget; and monitoring or implementing legal compliance measures. Although every climbing gym will be different, there will likely be a strong argument that many managers will satisfy these requirements and perform the requisite duties to be exempt. Essentially, the FLSA’s requirements for the Administrative exemption examine whether the employee is actually managing the business operations and keeping the business running. This inquiry will be very fact-specific, but many managers will likely satisfy this requirement if they are truly helping the business run and are not engaged in non-exempt tasks like ringing up customers, teaching belay classes, and selling merchandise. Similarly, for climbing gym employees who manage the business and supervise employees, such as general managers, operations managers and head routesetters, they may also qualify for the Executive exemption. Classifying employees as exempt, thus, can be very beneficial to the climbing gym, because these employees can be paid a fixed salary, even though they may work more than 40 hours a week. Alternatively, if these employees are classified as non-exempt and paid hourly, the climbing gym may be spending excess time tracking these employees’ hours worked and calculating their weekly pay. Additionally, when certain employees are classified as exempt, the climbing gym receives the budgeting certainty of fixing these employees’ salaries to the same weekly amount and the ability for these employees to work more than 40 hours in a workweek at their fixed salary.

The 1099 Loophole?

What if a gym labels every employee as an “Independent Contractor” and ignores the FLSA? In theory, that would be convenient; in reality, it’s unlawful. The FLSA applies only to employees and its overtime provisions, and therefore does not cover independent contractors. In general, an independent contractor is one who is in business for him- or herself. There are various factors to consider when making the assessment of whether an individual is an independent contractor, but the principal inquiry is who controls the work. When an independent contractor does a job for a climbing gym, the contractor, not the gym, must control how the work is done. For most gyms, there may be an argument that yoga and fitness instructors who run classes according to their schedule and parameters are independent contractors, as would routesetters hired to work for a specific climbing competition, but the majority of workers will be employees who are subject to the climbing gym’s control and policies. For climbing gyms thinking about applying a very liberal definition of “independent contractor” to circumvent the FLSA, there can be a great deal of risk because the DOL is aggressive in policing employers who misclassify employees as independent contractors, and the penalties can be steep. As such, a climbing gym, like any business, should consult with an attorney before labeling certain employees independent contractors. The FLSA and various state laws provide climbing gyms with flexibility in how they establish and carry out their payroll practices, but contain many traps for the unwary. There are many advantageous ways for climbing gyms to classify their employees, establish their workweek parameters, and generally maximize the hours and profitability of their workforce. Climbing gyms, though, must be mindful of the basic payroll policies and ensure whatever policies they implement are consistent with prevailing laws and are not exposing climbing gyms to unnecessary legal risks. So, when examining existing policies or implementing new policies, it is often helpful to consult with an attorney to make sure everything is legally compliant. This small step may save a climbing gym the significant time and expense of having to later litigate the issue if the gym’s practices are challenged by the DOL or a disgruntled – and perhaps underpaid- employee. Following on this theme, subsequent articles will provide greater depth on specific employment issues facing climbing gyms, such as disability discrimination under the Americans with Disabilities Act, religious accommodations under Title VII of the Civil Rights Act, and the potential for unions (yes, really, unions are possible for climbing gyms). If you have other employment law topics you would like covered, let us know.   In addition to climbing for the past 15 years and previously managing a climbing gym, Jason Pill is an attorney with Phelps Dunbar, LLP in Tampa, Florida. Jason practices in the area of labor and employment and assists clients in handling unique issues that arise at the intersection of law and technology. He represents employers regarding claims involving employment discrimination laws, wage and hour laws, family and medical leave laws, whistleblower laws, union-management relations, employee benefits, enforcement of non-competition agreements, customer complaints based on denial of service or alleged discrimination, privacy-based claims, and various employment-related torts. He prepares employment contracts, non-competition agreements, personnel policy manuals, employee handbooks and assists clients in implementing and managing technology in the workplace. If you have questions for Jason, contact him here. The content of this article is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. The reading of or reliance on this article or the Climbing Business Journal’s website does not create an attorney-client relationship between the author or the Climbing Business Journal and the user or reader.

ACC Universal Belay Standard

The Amercian Alpine Club has released a new “Universal Belay Program” that is looking to establish a recognizable belay standard with all climbers.
In the United States every club, climbing gym, school program, and climbing instructor teaches some form of belaying. They also test belaying to ensure that belayers meet a minimum standard. However, the standards to which they teach and test are not always consistent. With no national standard to discern fundamentally sound variations from dangerous variations, all variations tend to be tolerated—and that leads to accidents; some variations in belaying are unsafe. The American Alpine Club is working with institutions around the country to adopt a national standard and educate climbers on the fundamental principles that should govern all belaying in all contexts. Ultimately we hope that every American climber will have the knowledge and practice to belay in a fundamentally sound way.
Here is the first video they have released explaining the belay standard. The AAC is looking to bring a Universal Belay Standard course to local gyms and other course providers that will issue a Universal Belay Certificate to climbers.