Thursday, June 05, 2014
June 5, 2014– June is the time of year when New York Jets’ Football fans are receiving their annual ticket bills for the upcoming NFL Season. For a family of 4, looking to be close to the action, those tickets will cost, an average of, $14,000.00 per seat, not including the PSL license fees for those same 4 seats, amounting to an additional $120,000.00. Grand total $176,000.00, before you ever purchase a snack or beverage. For those seat licenses and tickets, fans have the opportunity to sit in luxury seats that afford them the best view of the game and the best view of the Jets Flight Crew, the elite cheerleaders that earned their prestigious spots on the squad through a grueling series of elimination competitions and also earned a paltry $3.77 an hour, a recent New Jersey State Employment Lawsuit alleges.
The Jets Flight Crew is not the first set of Cheerleaders to file such a wage claim. Earlier this year several Team Squads filed State and Federal lawsuits, as well as Administrative claims, alleging that they were paid sums ranging from, a mere, $2.00 per hour to $4.25 per hour. All of these sums are well below the minimum wage standards set forth by State and Federal Employment laws. Additional allegations, ranging from requirements that Cheerleaders use their own funds to frequent the high end salon, make-up, and physical fitness facilities of the Teams’ choosing, to undergoing the demeaning “Jiggle Test” employed by theBuffalo Bills organization as part of the elimination process, were also made by the Squads.
How is it possible that highly visible performers, whose presence has become part of the fabric of an organization that earned $9 billion dollars in 2013, could be paid so little? How is it that this multi-billion dollar, tax exempt corporation has allowed it’s Teams to circumvent the most basic of employment laws? The unified response of the five NFL Teams defending these allegations is that Cheerleaders are not employees. They are Independent Contractors and, therefore, the Teams are not covered by minimum wage law protections.
These allegations by the Cheerleaders, as employees, and response by the Teams, as employers, is at the heart of wage disputes that transcend the United States’ most popular sports franchises. The issue is one that workers all over the United States deal with on an ongoing basis. The question is a simple one: Does an employer’s classification of an employee as an Independent Contractor legally justify circumventing the State and Federal minimum wage standards?The answer is no. The determination as to whether a worker is an employee, or Independent Contractor, is fixed by a set of legally defined rules, not by the employer’s will.
According to the Internal Revenue’s Classification memo
(Updated April 4, 2014) “The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.”
Using this standard, one can apply this fundamental question of control to the Cheerleaders to understand whether they should be classified as employees, as they claim, or Independent Contractors, as the NFL claims. Examining the Defending Teams’ own printed manuals for these squads it seems clear that the Teams controlled, virtually, every aspect of the Squads’ behavior during football season. Here are a few standard and universal examples:
- Cheerleaders must attend every practice, and every game and must show up 5 hours before practice.
- Cheerleaders are required to attend 20 unpaid appearances, every season for the Team.
- All rehearsals are mandatory, but unpaid.
- Hair color, tanning level, and weight ranges are all dictated by the Teams.
- The locations of the hair salons, nail salons, tanning salons, and gyms for Cheerleaders are all mandated by the Teams.
- The Team dictates the people that a Cheerleader may, and may not, communicate with.
- What topics of conversation and type of language is appropriate during a Cheerleader’s time with the team is subject to Team oversight. This governs more than just a prohibition on foul language. It dictates the topics of conversation that are prohibited, as well as the mode of communication. Example: “A Cheerleader may say “”Oh, my goodness, but never Oh, my God.””.
- The feminine hygiene products Cheerleaders may use and the manner in which they may be used are directed by the Teams.
- The foods a Cheerleader may eat and how to eat them are governed by Team rules. The Buffalo Bills, for example, prohibit the “over-eating of bread in a public setting.”
Without further analysis, it seems that the Cheerleaders had little, if no control, as articulated by the Internal Revenue, as well as State and Federal Labor laws. Despite these facts, the NFL Teams continue to fight the Cheerleaders in obtaining their just compensation. The NFL has already indicated that it, in the event that the Courts seem inclined to side with the Cheerleaders, will invoke the “Seasonal Amusement” exemptions of the Federal Labor Laws which provide special exemptions for entertainment employees that are utilized less than seven months a year to try to circumvent fair pay for these young women.
While the public may not be so inclined to feel outraged by the treatment of beautiful, athletic, semi-celebrities that appear to have a great opportunity in becoming an NFL Cheerleaders, the fact remains that the standards applied by the NFL to these young woman are the same standards employers all across the country are utilizing to take advantage of employees by misclassifying them as Independent Contractors, whether they are NFL Cheerleaders, or restaurant workers, or limousine drivers. Fair compensation is not a privilege. It is a right.
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