New California Law Says Professional Sports Cheerleaders are Employees
“We would never tolerate shortchanging of women workers at any other workplace. An NFL game should be no different.”
"Cheerleaders" of professional sports teams in California - and maybe soon enough in other states - have something to cheer about. As a respectable move by California governor Jerry Brown on July 15, the new law in the state affords these cheerleaders basic employee rights such as minimum wage, overtime pay, sick leave, and the other employment protections that the rest of the team staff has available. Gonzalez introduced this bill in January after Caitlin Yates of the Oakland Raiderettes claimed, essentially, wage-theft. Among her allegations were failing to pay cheerleaders minimum wage (being paid the equivalent of $5 per hour) as well as failing to compensate for travel costs, public appearances, and rehersals. Lately, this issue has been getting a great amount of national recognition. Earlier I wrote about the Tampa Bay Buccaneers Cheer Team case, and you can click here to go back and read about the issue more generally.
This California bill AB-202, which you can read in full here, is the first of its kind in any state. Currently, the State of New York has a similar bill that is pending but has not yet been signed into legislation.
Employee vs. Independent Contractor
In legal terms, if you are not an "employee," you are considered an "independent contractor." These terms have significant differences that go beyond a mere job title. For example, here are a handful of common differences you may not initially think about:
- Independent contractors may incur whatever costs are associated with performing their job, while employees can get reimbursed for costs if they foot the bill.
- Independent contractors are not entitled to receive employment benefits whereas employees may receive them.
- Unless the contract states a specific term, independent contractors can lose their job at any time for any reason, but employees lose their jobs for cause and with notice where it is not "at will" employment.
- Independent contractors tend to have specialized skills through education and experience that they come into the work relationship with to perform their job duties, while empoyees' experiences and education may be more general, but they receive special training to perform their job duties.
- The contract terms govern an independent contractor's pay, and federal and state wage and hour laws cover an employee's pay.
Potential pitfalls
This is a great step for cheerleaders, dancers, and gymnasts who contribute to the entire game day experience success, but like a lot of laws, there could be some wiggle room to find a loophole. There are two points I will draw attention to with respect to AB-202 because these highlight where the law could run into potential problems:
1. What is a "cheerleader"?
Section 2754(a)(2) of California's Labor Code now declares a definition for "cheerleader" courtesy of AB-202. Under this new law, a cheerleader is "an individual who performs acrobatics, dance, or gymnastics exercises on a recurring basis." "[A]n indiviual who is not otherwise affiliated with a California-based professional sports team and is utilized during its exhibitions, events, or games no more than one time in a calendar year" is not included in the Labor Code's meaning of a cheerleader.
When analyzing this law, the basic definition appears in broad terms. The following sentence describing who is not covered by the Labor Code's definition is worth a closer look, though. The law gives no definition of what it means to be "affiliated" with a team. So, using common definitions of "affiliated," an individual performing these stunts who are "closely associated with" or even "officially attached to or connected with the organization" are considered employees. Therefore, cheerleaders and dancers hired by the franchise itself (since the NFL makes clear that it is not the entity hiring or managing the women) are clearly a class the law covers, since the law intends to cover both dance teams and cheer teams as well as any gymnastics teams one of the five professional sports covered may use. This leads me to my next point...
2. Does it matter whether the cheerleaders are a direct hire by the team or a hire through another entity?
Under section 2754(b), "a cheerleader who is utilized by a California-based professional sports team directly or through a labor contractor during its exhibitions, events, or games shall be deemed to be an employee." Therefore, the law is attempting to cover those who dance, cheer, or perform gymnastics at these events whether or not they are hired by the franchise or hired independently through an affiliate organization, but there still may be ways for the professional sports teams in California to get around this law.
To illustrate, I'll use Detroit professional sports as an example. The Detroit Pistons have teams that perform all three activities that California's Labor Code now covers: a cheer team (comprised of men and women), a dance team (all women), and the Flight Crew. The Cheer Team would have a slight bump in the road because they could not make a parallel gender discrimination argument that some cheer teams have pointed toward. Detroit also has a dance team (all women) who are basically volunteers, calling themselves the Detroit Pride Cheerleaders, and dance/cheer for the city's teams without any official affiliation.
The Detroit Pride Cheerleaders would likely not be covered by a definition of "employee" if Michigan adopts one similar to California because although an argument could be made they are closely associated since the Lions allow them to dance/cheer at tailgates, they do not get paid for what they do. In contrast, the Detroit Pistons Cheer Team originally reported to a separate human resources outsourcing firm (DynamicHR) until very, very recently, and the team performed at home games and events. Currently, the Pistons Cheer Team is a direct hire by Palace Sports and Entertainment. Under the current business model, the team would certainly be covered. Under the former business model, the team would likely be covered, but it is not a sure thing. There could be arguments over an ostensibly simple word like "utilizing," for a team could say they granted permission rather than actually put them to use. The same can be said for "affiliated," for a team could win an argument if the board or court adopts the more strict definition of the word earlier discussed so that they avoid the labor contractor arguments altogether.
No, this law is not perfect, but gosh it feels good as a fellow female to see some recognition of women's contribution to sports the way we love them.
Source: Ezra Shaw/Getty Images; http://money.cnn.com/2015/07/16/news/companies/california-cheerleader-law/