By Jeff Birren
It may seem commonplace to readers of this publication, but another professional sports team has been sued for failure to comply with federal and state minimum wage laws. Lauren Herington, a former member of the Milwaukee Bucks dance team known as the “Bucks Dancers”, sued the club on September 24, 2015. It is a class action on behalf of the other dancers. Ms. Herington asserts that the team did not pay them federal or state minimum wages, failed to pay required overtime and failed to reimburse the Bucks Dancers for “significant” required work-related expenses. The complaint tactfully omits the name of the club employee who operated this compensation scheme and counsel did not issue an inflammatory press release
More specifically, Ms. Herington asserts that the Bucks Dancers were paid $65 dollars for each home game, even though they were required to arrive two and half hours prior to the start of each game. She further asserts that they were paid $30 for practices though they were required to practice between five and ten hours a week. She also maintains that the Bucks Dancers were required to participate in “15-20 hours of mandatory workout sessions each week” – unpaid workouts. All of this, as alleged, violates federal minimum wage law, 29 U.S.C. §216(b), and Wisconsin’s minimum wage law, Wis. Stat. Ann §104.01 et seq, and Wisconsin’s required overtime pursuant to Section DWD 274.03 of the Wisconsin Administrative Code.
The complaint also alleges that the Bucks “failed to maintain accurate records of all hours worked by the named Plaintiff and class members.” The complaint further states that class action status is warranted as the allegations fulfill the class action requirements of F.R.C.P. §§ 23(a) and 23(b), as: the claims are numerous; there are common issues of law and fact; the named-plaintiff’s claims are typical; and the named Plaintiff will adequately represent the class.
The prayer for relief seeks unpaid wages, reimbursement of wrongful wage deductions, an award of 50% increase in wages due and unpaid, liquidated damages on all unpaid wages from the date the wages were due but unpaid, costs and attorneys’ fees, and the right to amend the complaint to add additional claims.
According to PACER, the Summons was served on the Bucks on September 28 and the Bucks responded on October 19, 2015. The defense is primarily a collection of denials. Jake Suski, the Bucks’ vice president for communications and broadcast, publicly stated that the club “strongly disagree(s)” with the claims. He further said the complaint “presents inaccurate information that creates a false picture of how we operate” (Fortune.com, Claire Zillman, “Professional cheerleaders’ wage fight moves from the NFL to the NBA”, 9-28-15).
The Milwaukee Bucks have two in-house lawyers, Vice-President Mike Sneathern and Associate Counsel Mark Lesorgen. They also have two in-house human resources executives, Senior Vice President-Human Resources Kelly Kauffman and “Human Resources Generalist” Lenora Herrera. Nevertheless, the club insulated the four executives who actually know and work with the employment status of the Bucks Dancers and instead trotted out Mr. Suski. It may be comprehensible in light of an article that appeared six years ago entitled: “MASTERMIND: Jake Suski” (Constance Crump, Concentratemedia.com, 10-28-09).
If Mr. Suski is telling the truth, it should be easy for the club to produce the employment records showing the hours worked as required by Wisconsin law (e.g. Wisconsin Law 103.13(2)). That statute requires a Wisconsin employer to make such records available to an employee up request within seven working days. Those legally-required records could prove that the club paid the Bucks Dancers minimum wage for club-required work outs and all public appearances (rather than a flat rate regardless of the time required for the appearance), and that the club did reimburse the Bucks Dancers for required work-related expenses. In light of Mr. Suski’s statements, these records could be immediately provided to quickly resolve the lawsuit and avoid major defense costs.
Yet even if Mr. Suski is telling the truth that the Bucks Dancers are paid minimum wage, it is still a sorry tale. The cheerleaders are often the public face of the club and the evidence is likely to show that the Bucks Dancers made appearances throughout the state for a time period longer than the playing season. Appearances may have included schools, hospitals, retirement communities, military bases, clubs and civic events. It makes little sense to send out club-ambassadors that are angry because of the way that they are allegedly treated.
Moreover, if the Bucks Dancers are paid minimum wage, it must be a nightmare to keep track of the time spent on every appearance throughout the state by each dancer to insure that the club is not violating wage and hour laws. It might be simpler to pay $10 or $12 an hour for all time spent, and avoid litigation with its attendant costs and negative publicity. In the case of the Bucks, there is also a moral reason why the team should have avoided potential minimum wage violations.
In 2014, United States Senator Herb Kohl sold the Bucks to two new owners, billionaire hedge fund managers, Wes Edens, co-founder and Co-Chairman of the Board of Directors of Fortress Investment Group, and Marc Lasry, Chairman, CEO and co-founder of Avenue Capital Group. Certainly either of the two billionaire-owners can afford to stay in business without coming close to wage and hour law violations with the Bucks Dancers, even in the absence of a new arena. But it does not stop there.
On August 12, 2105 Wisconsin Governor Scott Walker signed legislation that commits $400,000,000 of public money including principal and interest to help finance a new arena for the club. The new arena will immediately increase the value of the club, thus benefitting the new owners. Such enrichment at public expense should be worth paying its employees more than mere minimum wage.
Discovery will be fascinating. The Bucks stated in their defense that they “paid different rates of pay during the applicable statute of limitations to other Bucks Dancers” (Answer at 2). The club also: “[d]enies that there were other similarly titled or similarly situated positions during the applicable statutory period” while later on the very same page: “[a]dmits that with the exception of the captains, the Named Plaintiff and the putative class members share similar job titles” (Answer at 4). The defense also “denies that all of the hours Named Plaintiff claims she ‘worked’ constitute compensable work hours” (Answer at 5). Were they volunteer hours or perhaps charity work hours? Like Lucy, someone is going to have a lot of “splaining to do.”
If the complaint is accurate, discovery will be extremely painful for the club, starting with ownership. The two human resources experts along with the dancers’ supervisor will be confronted by the club’s compensation policies and practices that allowed the club to avoid paying the Bucks Dancers minimum wage, overtime and payment for mandatory training sessions.
Moreover, if those facts contained in the complaint are accurate, discovery is sure to unveil far more mistreatment of the Bucks Dancers. Similarly, the Buffalo Bills experienced a staggering level of negative publicity for their treatment of their cheerleaders, the “Jills”. Deadspin was one of many media outlets that published excerpts from the Jill’s “Glamour Requirements.” A link can be found in their article: “Insane Handbook: Bills Cheerleaders Are Told How To Wash Their Vaginas” (Deadspin.com, Billy Haisely, 4-24-14). More recently, Tess Barker began a series of articles on the Los Angeles Clippers cheerleaders, 8-25-15.
Similar media coverage has now begun for the Bucks. On October 21, 2015, just two days after the Bucks answered, Vice.com published a story entitled: “Simply Exploited”: Why a Milwaukee Bucks Cheerleader Is Suing The Team”(Kevin Trahan, Vice.com, 10-21-15)). This article names the dance team coach, Tricia Crawford. It focuses on her demands and behavior. According to the article, the dancers often worked for compensation well below the minimum wage, in one case $4.17 an hour and were required to donate ten hours per season to unpaid events. The dancers were subject to unplanned workouts “at the discretion of the head coach”, and were given schedules that prevented them for engaging other employment. In addition to formal work requirements, the dancers were “regularly required to provide Crawford with proof of their (undoubtedly unpaid) workouts” away from the facility, due to an apparent obsession with weight. Ms. Crawford referred to Ms. Herington as a “fat ass.” Purportedly, Ms. Crawford demanded the dancers have an intake of a mere 1,200 calories a day, half of that recommended by the Center for Nutrition Policy and Promotion for a person in Ms. Herington’s age group living a healthy life style. This regimen ultimately led to medical problems for Ms. Herington. In a perfect Catch 22 for the women, if Ms. Crawford made the women sick or violated their rights, the only person that they could go to with complaints was not HR but Ms. Crawford, who could then decide in her sole judgment whether the women could talk to anyone else in the organization. In response to a request for comment by Vice.com, the Bucks continued to hide Ms. Crawford from the media and re-issued Suski’s prior comment.
Mr. Edens and Mr. Lasry will need to carefully consider whether they desire to sit on a witness stand and explain to a jury of working men and women why it was acceptable for a major league sports team to avoid paying valuable employees for work hours that they required. They will also have to justify policies that apparently created health problems for at least one employee, and why the vulnerable young women were forbidden to go to HR without express approval of the person that was causing the problems that HR needed to address. Moreover, the defense admits there is a “relatively small value of each claim” (Answer at 10). The club even asserts that the claims “are barred by the de minimis doctrine” (Answer at 17, para. 9). It is a novel theory to a wage and hour legal claim: as long as the amounts due are small, an employee cannot sue to collect. The ancient Greek masks of Comedy and Tragedy will look down on the courtroom. “Because we can” and greed are not defenses in a wage and hour case. Realistically, however, if the facts alleged in the complaint are even somewhat true, the Bucks will be well advised by competent counsel to avoid trial at all costs. The alternative is to trust the mastermind and throw the dice.
Mr. Birren is a frequent contributor to these Sports Litigation Alert.
