By Afras Khattak – Thompson Rivers University 2L JD Student
The Milwaukee Bucks of the National Basketball Association (NBA) are purported to have been engaged in unlawful pay practices for their cheerleaders for allegedly failing to comply with the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”). I posit that the Bucks will likely follow the recent stream of NFL cheerleader pay practices case law, and settle out of court even if they can establish an exemption under the FLSA.
This case materialized when Lauren Herington, former cheerleader of the NBA’s Milwaukee Bucks, filed a lawsuit alleging that the team failed to pay her in accordance with federal and state minimum wage laws. Ms. Herington contends that the team required its cheerleaders to spend upwards of thirty hours per week in mandatory practice and workout sessions, in addition to their game-day duties. Because these workout sessions (as well as mandatory salon visits) were unpaid, the complaint was brought forward to substantiate Ms. Herington’s claim that the Milwaukee Bucks not only failed to pay their cheerleaders the minimum wage, but often neglected to pay them overtime as well.
The Bucks could argue that the team is exempt from at least the federal minimum wage and overtime requirements under s. 213(a)(3) of the FLSA, a statutory provision covering seasonal amusement and recreational establishments. Under this exception any amusement or recreational establishment may pay its employees a sub-minimum wage (without overtime) so long as one of the following two conditions are met: either (A) the establishment does not operate for more than seven months in any calendar year, or (B) the establishment’s revenue in its six lowest revenue months in the previous year was no more than 33 1/3% of its revenue received in its six highest revenue months.
One major factor that could bolster this argument is that because the Bucks were eliminated in the first round of the NBA playoffs this past season, the team’s entire 2014-15 pre-season, regular season, and post-season only spanned seven months in its entirety (from October through April). The Bucks could very well likely argue that this qualifies it as a seasonal establishment under s. 213(a)(3)(A), and therefore that the team is not required to pay its cheerleaders in accordance with the FLSA.
NBA teams can credibly contend that they qualify for the s. 213(a)(3) exemption in at least some portions of their operations given the existing statutory language and accompanying regulations. Nevertheless, despite this potential defense, it would not be surprising if the Bucks ultimately chose to settle the suit before impending litigation commences. This would seem analogous to the path several National Football League (NFL) teams have chosen. NFL cheerleader lawsuits often settle the claims even though they arguably have an even stronger argument for exempt status under s. 213(a)(3) given the shorter length of their playing season.
Most notably, the Oakland Raiders agreed to pay its former cheerleaders $1.25 million to settle their minimum wage claims even though the U.S. Department of Labor had issued an opinion earlier that same year concluding that the team was not subject to the FLSA due to s. 213(a)(3) (Caitlyn Y and Jenny C, et al. v. NFL and the Oakland Raiders, et al.).
It would also not be surprising if this case motivates other NBA cheerleaders to file separate lawsuits against their teams. For the NFL, five additional teams quickly faced their own cheerleader lawsuits within a period of just a few months after the league’s first case was filed. The NBA is likely hoping that its teams do not face a similar outbreak of cheerleader minimum-wage litigation. At a minimum though, this case shows that the allegedly unlawful pay practices of professional sports teams still remain a pressing issue for the sports industry, and it may get worse for the NBA in the foreseeable future.