There is no industry that is immune to wage hour or FLSA actions, including amateur sports leagues. In an interesting case, a federal Judge has granted conditional class certification to a class of members of an amateur football league who worked as referees and who were, they claim, compelled to perform the work of refereeing other teams’ games for free. The case is entitled Ernst et al. v. ZogSports Holdings LLC, and was filed in federal court in the Central District of California.
What is even more interesting is that the Court held that the individuals did not have to establish that they were statutory employees before they could send opt-in notices out to other potential class members. The class that is sought is nationwide. The employer organizes adult amateur leagues in different sports, e.g. flag football; the players pay to participate, whether as part of a team or individually. The allegations are that the Company mandates that for each game played, a team must supply a “volunteer referee” to ref at another game.
The plaintiffs claim that their work was integral to the Company’s business and because they performed work identical to that done by paid, “true” employees, they should be deemed employees and eligible for compensation. The class certification motion asserts that “even if the volunteer referees were truly intending to volunteer, they would still be covered employees under the FLSA. The FLSA requires payment of minimum wage to workers and generally precludes them from volunteering to work for for-profit enterprises.”
The Company defended by asserting these people were not employees. The Company also contended the volunteering was like that done by members of all sorts of clubs and organizations. The Judge noted that plaintiffs in other cases had been granted conditional certification where the issue of employee status was still undecided. The Judge observed that “the parties agree this case is in the notice stage. Plaintiffs therefore need only satisfy the more lenient standard of showing they are similarly situated to other potential collective members, which is met with substantial allegations that potential opt-in collective members were the victims of a single decision, policy, or plan.”
Individuals cannot waive their right to wages or overtime even if they are denominated as “volunteers.” There have been many such volunteer cases of late and sometimes the line between volunteer and employee is hard to draw. It is perhaps not surprising that the Judge allowed opt-in notices to be sent as the issue at the heart of the matter, i.e., employee status, will be decided at the correct time in the case. The concern for the employer is that it has put all its eggs in the basket of non-employee status.
In for a dime, in for a dollar…