1 Feb

Employment Litigation On the Rise In The Sports Workplace

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An abundance of recent litigation reveals the sports industry is becoming increasingly vulnerable to labor and employment claims previously reserved for more traditional employment arenas. Claims for alleged wage and hour violations, workplace harassment, discrimination, and retaliation are among those on the rise across professional and minor league sports. Following are some recent examples. Teams should take notice and, if possible, implement measures to protect themselves from the rising tide of workplace-related claims.

The Raiderettes. A member of the Oakland Raiders cheerleaders, the Raiderettes, recently filed a class action in California state court alleging a variety of wage and hour violations: failure to pay minimum and overtime wages, failure to provide meal and rest breaks, failure to pay wages timely and provide accurate wage statements, and waiting-time penalties.  The Raiderettes allege – despite a reported employment contract to the contrary – they are employees and entitled to protection under the California Labor Code.  And under California law, they may be right.  California courts routinely discredit independent contractor agreements and instead focus on whether the employer controls the means and methods of how the worker performs his or her work.  If certain conditions are met – such as whether the employer is engaged in the same business as the worker, whether the employer supervises the work performed, and whether the employer provides the tools of the trade – the worker is considered an employee and entitled to back wages and waiting time penalties.  (See S.G. Borello & Sons, Inc. v. Dept. of Indust. Rel. (1989) 48 Cal.3d 341, 354-355.)  Upon hearing of the lawsuit, a former Baltimore Ravens cheerleader reported to the local media the Ravens have similar policies.  This issue doesn’t appear to be going away any time soon; indeed, this particular litigation may sweep coast to coast.

Minor League Baseball Players Sue MLB Over Pay Practices. Just this week, three minor league baseball players filed a wage and hour class action complaint in federal court, in California’s Northern District, against Major League Baseball (MLB), the commissioner, and their three former teams’ organizations (the Kansas City Royals, Miami Marlins and San Francisco Giants). Plaintiffs allege they were not paid minimum wage, were not paid overtime, and received incorrect wage statements, among other allegations. Plaintiffs seek to certify their case as a collective and class action, based on alleged violations of federal and state (California, Arizona, Florida, New York and North Carolina) laws. Plaintiffs further allege MLB controls how minor league players are paid, and they are not part of  any collective bargaining agreement. If they are successful in certifying a collective or class action, they would seek to represent thousands of current and former minor league baseball players.

San Francisco Giants & The U.S. Dept. of Labor. In other bad news for the Giants, the U.S. Department of Labor conducted an investigation and found the San Francisco Giants’ flat-rate pay of $55 per day to clubhouse workers violated minimum wage, overtime, and record-keeping statutes.  As a result, the Giants paid $544,715 in back wages and penalties to 74 employees.  Professional teams are often viewed as deep pockets and garner little sympathy from private attorneys and state and federal enforcement agents alike.  As Susana Blanco, Director of the San Francisco District Office of the D.O.L. Wage and Hour Division, said: “it was disappointing to learn that clubhouse workers providing services to high-paid sports stars weren’t making enough to meet the basic requirements of minimum-wage law.” Beyond the lack of sympathy, sports and entertainment teams and organizations are also often target defendants for plaintiffs’ attorneys due to the resulting publicity and “free advertising” that will result.

Employers – especially those in California – should routinely revisit their payroll practices and consult counsel in dealing with the hundreds of independent contractors relied upon for game-day operations.  Teams cannot depend upon independent contractor agreements to insulate them from wage and hour or harassment-related litigation.

Outside California: Harassment Claims in The NFL Workplace. The Miami Dolphins and Minnesota Vikings are facing harassment claims and potential lawsuits.  A much-hyped, public feud between the Dolphins’ Jonathan Martin and Richie Incognito appears to raise the quintessential questions of: what did management know? when did they know it? and what did they do to prevent it? Similarly, former Vikings punter Chris Kluwe recently alleged Vikings special teams coordinator Mike Priefer routinely made homophobic statements in the locker room, and he believes the Vikings cut him due to his support for same-sex marriage. The U.S. Department of Justice has launched an investigation into the allegations.  Even behavior outside the workplace – such as an online video of Philadelphia Eagles wide receiver Riley Cooper using racial slurs at a concert – can trigger an employer’s duty to investigate potentially harassing conduct. These are just three examples of the significant uptick in claims and litigation that was previously thought to be more reserved for the traditional workplace as opposed to fields, courts, and locker rooms. Recent amendments to the Fair Employment & Housing Act (FEHA) will also likely result in an increase in claims.  For example, SB 292 (Corbett; Employment: Sexual Harassment) amended the FEHA to clarify that sexual desire is not required to prove a sexual harassment hostile work environment claim under the Act.  Accordingly, we anticipate seeing more male-on-male “horseplay” or hazing types of claims.  This is of particular relevance in the context of the recent Jonathan Martin case.

The Storm Rages On. The list of recent labor-related claims and litigation goes on: Northwestern University players are now attempting to unionize and/or collectively bargain, seeking employee status; the Northern District of California partially certified a class action involving NCAA athletes suing over the use of their names and images without compensation; NBA security director Kelley Hardwick sued U.S. Olympic women’s basketball coach Geno Auriemma alleging he tried to forcibly kiss her during a basketball tournament in Russia in 2009 and then demanded the NBA remove her from the London Olympics in 2012; and a former NBA account manager filed a lawsuit against the NBA alleging pregnancy discrimination.

The Takeaway: How Teams & Organizations Can Prepare. Teams and operators are encouraged to take practical preventative measures to avoid exposure to ever-rising workplace-related claims and potential liability, such as:

  • Revisiting Wage Statement Content: Employers in the sports workplace should review and reevaluate the content of their wage statements to ensure full compliance with applicable labor codes. 
  • Review Job Classifications:  Employers should review the employment status of their workforce to accurately determine whether workers are truly independent contractors or employees.  This analysis should include all workplace personnel, whether front office, game-day staff, promotions and marketing, or sales.
  • Auditing Payroll Practices: Employers should audit their payroll policies and practices to ensure compliant and accurate timekeeping, payroll calculations, and pay practices – from a state and federal law perspective.
  • Updating Handbooks & Policies: Employee handbooks and workplace policies should be routinely revisited and updated to reflect changes in the law.
  • Management & Employee Training: California teams must conduct training for supervisory employees every two years covering sexual harassment; all employers are encouraged to conduct management and employee training related not only to sexual harassment, but also discrimination, leave rights and to cover the employer’s workplace policies.
  • Workplace Investigations: Employers should commence and document thorough, good-faith investigations into allegations – or even rumors – of bullying, harassment, or discrimination.   

Please feel free to contact Mike O’Connor (moconnor@albblaw.com) at Andrews Lagasse Branch + Bell, LLP with any questions you may have regarding your team or organization’s employment-related need