With the NFL draft just completed (and my Giants taking a much needed offensive lineman) it is ironic that a law focusing on wage hour rights of NFL team cheerleaders is headed towards possible passage in California. I have often blogged about independent contractor cases and cases involving claims for off-the-clock work. The circumstances that this statute seeks to resolve involve both of these issues.
This pending legislative development puts a somewhat different face on these issues. The California Legislature is on the verge of passing a law that would require NFL and NBA teams to classify their cheerleaders as statutory employees and pay them at least the state minimum wage. This is the issue that the Oakland Raiders (and the Bills, Jets, Bengals and Buccaneers) have faced, in court, in the last few years.
The proposed law (A.B. 202) came out of the Committee on Arts, Entertainment, Sports, Tourism and Internet Media on Tuesday, with a 5-2 vote in its favor. It now heads to the state appropriations committee. The law requires that cheerleaders be paid for the time they spend representing the teams both on and off the field. The bill was first introduced in January by Assemblywoman Lorena Gonzalez, a former Stanford cheerleader. She said that the proposed law “simply demands that any professional sports team — or their chosen contractor — treat the women on the field with the same dignity and respect that we treat the guy selling beer.”
The Raiders case, Lacy T. et al. v. the Oakland Raiders, settled in September for more than one million dollars. The plaintiffs in that class action had accused the Raiders of wage theft and other unfair employment process. The suit alleged that the team did not pay the “Raiderettes” anything until the season ended, did not pay for all hours worked and forced the cheerleaders to pay a large portion of their business expenses. The suit alleged that these workers were actually paid less than five dollars per hour for the hours of rehearsing, performing and appearing at events.
This situation raises both the independent contractor and “working time” issues, although in a different (i.e. unique) context. That context, however, does not change the fundamental legal issues at stake. If an individual is under the control of an employer, as the workers here were clearly, they are “employees” and if there is any managerial direction or compulsion exerted on them to perform certain activities (off-the-field appearance), that is working time.