There is, as we all know, an insane amount of litigation on independent contractor issues. These controversies can emanate from any industry and there is no business that is immune to these allegations. Case in point. A judge in New York State has just granted class certification to a class of cheerleaders for the Buffalo Bills of the NFL who are claiming that the misclassification deprived them of overtime pay. Although they may be out of the playoffs, the team may yet be in the limelight, but for the wrong reasons. The case is entitled Caitlin Ferrari, et a. vs. Stephanie Mateczun, et al, and was filed in the Supreme Court of New York in Erie County.
The Judge ruled that the plaintiffs, known as the Buffalo Jills, are entitled to class certification because (under New York law) the statute of limitations is six years so the proposed class can extend back six seasons. There were approximately forty (40) cheer leaders engaged during this time, so the Judge deemed it impracticable to try their cases separately. The Court also found sufficient commonality in the claims as to warrant class certification.
The lead plaintiff Buffalo Jill, Caitlin Ferrari, alleges that the Jills were required to attend all Buffalo Bills home games, attend biweekly practices, conduct dance clinics as well as make several public appearances from April-December. She alleged that a small component of this “work” was paid over, making the wages of the Jills less than the State minimum wage. She also alleges that, although the Jills can, on their own, sell the Buffalo Jills swimsuit calendars at $5/calendar, if they do not sell the calendars they are stuck with what they do not sell. The parties have been expanded, with the team and the League now being added in. The Jills want unpaid wages, unreimbursed expenses and attorneys’ fees.
The suit is the latest of several clashes over fair pay between NFL cheerleaders and their respective teams in recent years. The Oakland Raiders and Tampa Bay Buccaneers have settled similar cases. Indeed, there is a similar case in which a group of cheerleaders is seeking unpaid wages from these defendants. Three of those plaintiffs joined the Ferrari lawsuit in January 2015, saying they “wish to stand in solidarity with their fellow cheerleaders” and believe that “a class action is the best way to do so.”
I have handled many independent contractor litigations and DOL audits. Many of these cases have been unemployment audits, where the exposure may not be that much because the DOL there is only seeking back due contributions (and interest) for unemployment insurance. The FLSA scares me a lot more. There are liquidated damages, a three year possible statute of limitations and fee shifting. Overtime claims by a class of misclassified independent contractors and/or minimum wage claims are the much bigger danger.
So, don’t let any independent contractor work more than forty hours…