Sunday, 10 January 2016

Why Even if You Couldn’t Pay Me to Cheer for the Buffalo Bills, the Buffalo Bills’ Cheerleaders Deserve to be Paid as Employees.

”You could not pay me to cheer for the Buffalo Bills.” The same is a reasonable position taken by a number of football falls. But what about the Buffalo Bills cheerleaders, the “Buffalo Jills” (seriously, that’s what they are called), should they be paid for cheering at Buffalo Bills home games?

In a continuing class action lawsuit brought by a number of former “Jills” against the team, (and others including the NFL), the plaintiffs allege that they were subject to incredibly stringent, if not downright ridiculous conditions of employment, such that the team’s position that the Jills were “independent contractors” was wrong. The Jills claim wage theft.

In an opinion released January 5, 2016, and available online at Ferrari v Mateczun et al., Index No. 804125-2014, the Honorable Timothy J. Drury, Erie County, New York, Supreme Court Judge held that the case could proceed as a class action. Express in the same is that the judge had found that the Jills were, in fact, employees and not independent contractors.

At last it would appear that the Buffalo Jills have something to cheer about.

Facts

In their complaint, the plaintiffs allege that the Buffalo Bills have disregarded New York Labor Law and failed to properly pay the plaintiffs and other employees during the course of their employment as NFL cheerleaders and non-performing “ambassadors” in support of the Buffalo Bills football team.

The crux of the claim, as I understand it, is that the Jills were required to provide cheerleading services to the Buffalo Bills home games without cash compensation.

According to the Answer filed by the Bills, the Jills were the sole responsibility of Citadel Broadcasting Company, which had entered into a contract with the Bills, granting Citadel the exclusive right to cheerleading during Buffalo Bills home games for the 2007, 2008, 2009, and 2010 seasons.

According to the affidavit filed by lead plaintiff Caitlin Ferrari, Ms. Ferrari had signed an agreement with Citadel, which agreement stated that Ms. Ferrari was an independent contractor to Citadel. A Code of Conduct repeated that Ms. Ferrari was an independent contractor subcontracted to Citadel.

According to Judge Drury, the Code of Conduct then detailed stringent conditions for her work as a Jill which called into question her status as an independent contractor.

For example, all the cheerleaders who filed affidavits in support of the claim noted that the vast majority of the appearances made by the Jills were made in the capacity of Buffalo Bills cheerleaders. They stated that the primary purpose of the cheerleaders' practices was to perfect their cheerleading performances for the Buffalo Bills home games.

To put the issue into focus, in summarizing the case to be decided Judge Drury wrote the following:

Therefore, the Plaintiffs have submitted evidence from April 9 and April 27, 2008 to the present that the members of the Jills cheerleader squad were required to work for the defendants not as employees but as independent contractors and not paid by the Bills or the other defendants, when in fact they were employees of the defendants. Given the above, the defendants would be in violation of the various causes of action the plaintiffs have alleged dealing with their wage claims. The Bills would be responsible for requiring the other employer defendants to misclassify the Jills and the NFL would be responsible for affirmatively approving the unlawful practice.

In rejecting the argument that the Jills were an amalgam of independent contractors, Judge Drury wrote this:

… they cannot sustain that claim in the face of the Code of Conduct that bound them and treated them as employees. By definition the defendants could not produce a viable cheerleading squad with independent contractors.

Just what were those onerous conditions as set out in the Code of Conduct? According to a story published in the New York Post, NFL teams may have to stop ripping off their cheerleaders the Code of Conduct contained such conditions as following:

  • A section of the cheerleaders’ 2013-14 handbook titled “General hygiene & lady body maintenance” includes the instruction, “Intimate areas: Never use a deodorant or chemically enhanced product. Simple nondeodorant soap will help maintain the right PH balance.”
  • The book also tells the grown women to replace their tampons “at least every four hours” when menstruating.
  • “Always shower after a workout and change undergarments, the guide says, adding “Don’t use lufa’s [sic] or sponges. They hold TONS of germs! Throw them away now!”
  • As for their public appearances, the cheerleaders must wear their “hair in a glamorous style with no clips or tie-backs.”
  • The women should also watch their tongues: “Say ‘oh my goodness’ instead of ‘Oh my God.’ ”
  • As if that wasn’t enough, there are more than two pages of dining rules including: “Do not overeat bread in a formal setting.”

Yes, you read that correctly. Those pearls of wisdom came from the 2013-14 handbook. “Oh my goodness” indeed.

Decision

The decision itself actually turns on whether to certify the proceeding as a class action. Judge Drury, applying New York Class Proceedings legislation found sufficient commonality of issues to certify the case as a class proceeding. Given the nature of this blog I will not get into his reasons, which are sure to be appealed in any event.

Commentary

When I first posted the New York Post story to Facebook it generated a lot of reaction. Most of that reaction focused on the Code of Conduct, and rightly so; most of what is reported to be included is simply ridiculous if not downright offensive.

However, as I noted on Facebook, to be clear, from an employment perspective what mattered was the degree to which the employer attempted to control how the worker performed the tasks asked of her. The point in issue was not whether the rules were ridiculous, but rather whether the "Buffalo Jills" were employees or independent contractors. The judge found that by strictly controlling how the girls performed the tasks asked of them, the team had created an employer/employee relationship.

In making those statements I was referencing what I have often said about the employer/employee relationship: It is immaterial what you call the relationship, substance prevails over form. For a more thorough analysis of this issue see my post Independent Contractors and Employees on Contract – Understanding the Semantics of Ontario Employment Law.

I do not profess to know the first thing about New York state employment law. However, if it is anything like Ontario employment law, then the chance that these women were truly employees, and not independent contractors, looks pretty good.

Takeaways for Employees with Labour Pains

Every time the issue of employee versus independent contractor comes up I write the same thing, “If you are a worker in Ontario and are unsure of your rights and responsibilities in employment, it may make sense to speak with a lawyer. If your employment has been terminated and your employer is advising you that you are not entitled to severance because you were an “independent contractor” or “on contract,” then it almost certainly makes sense to speak with a lawyer before making any final decisions about your case.” That wisdom holds.

If you are an individual looking for assistance with respect to your workplace situation, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

What this case shows employers is two things: (1) Just because you call a worker an independent contractor does not mean the court will agree; and (2) Employers need to be aware that subcontracting the work to a third party may not wholly absolve them from liability if the subcontractor ‘gets it wrong.’

If you employ workers in the province of Ontario, you should speak with an employment lawyer about whether your workers are truly “independent contractors” or whether they are “employees.”

Even if you do not wish to try to label your workers as ‘”independent contractors”, using written employment agreements with your staff can be an incredible cost saver, especially at times when you need to let an employee go without just cause.

If you are an employer in Ontario and are looking for professional advice with respect to your staff,, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.



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