Give me an F-L-S-A!
The classification of workers as independent contractors is not only drawing the attention of governmental tax and labor departments, but also the attention of plaintiffs' lawyers looking to bring lawsuits under state and federal wage and hour laws such as the Fair Labor Standards Act (“FLSA”).
In late January 2014, one of the Oakland Raiders cheerleaders (commonly referred to as “Raiderettes”) filed a proposed class action on behalf of forty other Raiderettes. She is seeking compensation for unpaid minimum wages, overtime, expenses, and meal and rest breaks under California law. Specifically, the lawsuit claims that the team only paid Raiderettes $1,250 for working a full season, which amounts to less than $5 per hour for the time spent rehearsing, performing, and appearing at events. This is below California's minimum wage of $8.00 per hour and does not include overtime compensation for hours worked over eight per day or forty per week.
While the Raiders will likely argue that the Raiderettes are independent contractors and, therefore, not covered under applicable state and federal law, the cheerleaders will argue that the totality of the circumstances shows that they are actually employees whom the team has unlawfully categorized as independent contractors.
There are many factors used in determining whether an individual providing service is an independent contractor or an employee, including, among other things, the skill required, the degree to which the service is integral to the alleged employer's business, the opportunity for profit or loss, and the degree of control the alleged employer possesses over the worker.
Please contact your Elarbee Thompson attorney or respond to this email for advice or if you have any questions as to whether your workers should be considered employees or independent contractors and the possible consequences of that determination.