In January, a cheerleader for the Oakland Raiders filed a lawsuit against the team for failure to pay minimum wage. Following in the footsteps of that case, last week a former Cincinnati Bengals cheerleader filed a class action lawsuit against the Bengals for failure to pay minimum wage under Ohio and federal law.
Alexa Brenneman spent the 2013 NFL season as a member of the Cincinnati “Ben-Gals,” a nickname you either appreciate or loathe depending on how you feel about puns. According to her lawsuit, the cheerleaders were required to do far more than just cheer at the games. They were required to attend mandatory practices, appear at promotional events, and pose for a calendar. Yet the Bengals (not Ben-Gals) didn’t pay the cheerleaders for anything except the actual home games, and even then only at a rate of $90 per game. As a result, the lawsuit claims, the cheerleaders were paid “less than $2.85” per hour, well below both the Ohio and federal minimum wage.
The federal Fair Labor Standards Act generally requires covered employers to pay non-exempt employees at least the federal minimum wage for every hour worked. It also requires employers to pay non-exempt employees overtime at time-and-a-half for every hour worked in excess of forty per week. Ohio’s minimum wage and overtime law is essentially the same, although it applies to some employers who are too small to be covered by the FLSA.
I have a couple initial reactions to this new lawsuit. First, I suspect that very few of the other Bengals cheerleaders will actually join the lawsuit. While it is absolutely illegal to retaliate against employees for asserting their rights under the minimum wage and overtime laws, fear of retaliation is common. I am guessing many of the other cheerleaders might have that fear. Second, I expect the Bengals may argue the cheerleaders are “independent contractors,” who are not entitled to protection by the Ohio and federal minimum wage laws, rather than “employees,” who are. We have previously written about that distinction. Based on the allegations in the lawsuit, my sense is that the cheerleaders are probably employees, not independent contractors.
Apparently not all NFL teams pay their cheerleaders the way the Bengals and Raiders do. According to the Bengals lawsuit, the Seattle Seahawks pay their cheerleaders—the dreadfully named “Sea-Gals”—for all hours worked. It will be interesting if any other cheerleader minimum wage class actions are filed in the coming months, as similar minimum wage and overtime class actions tend to come in bunches. But don’t expect one coming out of Cleveland. According to the lawsuit, Cleveland Cavaliers cheerleaders are paid for their practice time and appearances. My beloved Cleveland Browns don’t have cheerleaders in the first place. But if they ever get them, I suggest they be called the “Brownies.”