By Scott Andresen and Kevin McCoy
For the uninitiated, the National Labor Relations Act (“NLRA”) can be a tough nut to crack. The federal labor relations law that we know today was created by the Wagner Act in 1935, and later amended by the Taft-Hartley Act of 1947, which together form most of the private-sector unionization provisions that predominate today. Renowned labor unions such as The Teamsters, AFSME, the AFL-CIO, and The Laborers can all trace the beginning of their rise to prominence back to those early pieces of legislation. The purpose behind the NLRA was to regulate the field of union-management relations and provide an agency to oversee and, where necessary, resolve disputes born out of the union-management relationship.
Over the last few decades, union membership has declined precipitously. According to the Bureau of Labor Statistics, in 2013 only 11.3% of the workforce was unionized (counting both private and public employees). Only 6.7% of private sector employers had unionized workforces. Consider, by contrast, that in 1983, the total percentage of unionized workers in America stood in excess of 20% and you begin to understand why the NLRB’s influence has waned.
These statistics are not news to the NLRB; the agency has been combatting declining union rolls for many years. However, about three or four years ago the agency underwent a philosophical re-evaluation of its role in the unionization process and its role in workforce management, in general, with the hopes of reinvigorating unionization in the United States. The reinvigoration efforts have led to some interesting developments.
We’ve Got the Players….Why Not the Cheerleaders?
One way the NLRB is trying to reinvigorate the union rolls is by crafting rules and administrative decisions that make it easier for employees to unionize. A by-product of that effort has been that categories of employees who have traditionally not been unionized are initiating organizing attempts. Let’s get crazy for a moment; what are the chances NFL cheerleaders would ever organize?
Well, first-things-first…is a cheerleaders union even legally possible? The short answer is, yes. The NLRA allows “employees” (both full and part-time) to engage in protected concerted activity for their mutual aid and protection. So, as long as the cheerleaders were actually employees of some organization (and not independent contractors) and there were two or more cheerleaders on the squad (because one employee cannot form a union), then cheerleaders would be no different than any other “employees” who were working in, say, a manufacturing plant.
The next question to answer then is who is considered the employer? Taking NFL cheerleaders as an example, are the cheerleaders employees of the NFL team for which they cheer or even the NFL? In most, if not all instances, NFL teams employ their own cheerleaders (usually at low wages…but more on that later) and would clearly be a statutory employer under the NLRA. Teams who subcontract with cheerleading companies to provide cheerleaders may or may not be considered “employers” under the NLRA, depending on the amount of control and direction they exercise over the cheerleading squad (as was seen in the Buffalo Jills-Mighty Taco matter discussed below). But the more interesting question is, what about the NFL? Might the cheerleaders be considered employees of the NFL?
For those at all familiar with the NLRA, it will come as no surprise that the basic definition of “employer” is extraordinarily broad — literally, anyone “acting as an agent of an employer…”, with limited exceptions, will qualify as an employer under the NLRA. But in order to be considered an employer of NFL cheerleaders (who are ostensibly paid by their respective teams) the NFL would have to be viewed as a “joint employer.” In order to be a joint employer, an entity must exert a significant and direct degree of control over employees and the employees’ essential terms and conditions of employment — which include such things as hiring, firing, discipline, and supervision of work. In short, in order for the NFL to be a joint employer, it would have to have some significant say over the day-to-day roles of a team’s cheerleaders. Whether that would be the true for any particular team’s cheerleaders would have to be determined on a case by case basis; and it is probably not something that could be demonstrated by cheerleaders on a “league wide” basis. In other words, it is unlikely that the NFL would be deemed a joint employer of every NFL teams’ cheerleaders. However, the easier path to unionization for cheerleaders is likely concentrating on the “employer” that strokes their meager paychecks, and in most instances that is their team.[1]
So even if cheerleaders can unionize, why would they? Or should they? Ironically, cheerleaders today represent a fair example of why the NLRA was passed in the first place. Professional cheerleaders are, by and large, paid poorly for a fairly involved job that requires not only practice, but public relations appearances, uses of their likenesses for marketing purposes, autograph sessions, and photo shoots—all with little or no compensation. For their efforts, cheerleaders are often paid less than minimum wage (which is unlawful, if they are employees) or even if they earn minimum wage, the pay is still low. Thus, the conditions are ripe for discontent among the ranks of the cheerleaders; and discontent is traditionally the fuel for the fire of unionization. How discontented can an NFL cheerleader possibly be, you ask? Quite a bit, apparently….at least according to some NFL cheerleaders who have recently filed individual lawsuits against their employer teams for wage theft, stemming from the alleged failure of the teams to pay them at least minimum wage. But has this apparent discontent actually lead to any attempts at unionization by cheerleaders? The answer may surprise you.
The Cheerleaders Strike Back
As of the writing of this article, the Oakland Raiders (twice), Cincinatti Bengals, Tampa Bay Buccaneers, New York Jets and Buffalo Bills have all been sued by current and former cheerleaders.[2] In the second Raiders case filed on June 4, 2014, the National Football League is also a named defendant. The cases are a mix of claims under federal law (e.g., the Fair Labor Standards Act) and state law, and generally claim that they were (i) not paid minimum wage for practices, appearances, modeling, etc., (ii) not paid in a timely manner, (iii) not paid overtime, (iv) subjected to unlawful terms and conditions of employment (e.g., auctioned off at golf outings and forced to sit in winners’ laps in golf carts, and “jiggle tests”), (v) not reimbursed for expenses, and (vi) not provided breaks. Unjust enrichment claims were also asserted against the teams.
The Oakland Raiders reached a settlement in the Lacy T. v. The Oakland Raiders case on September 4, 2014, with the court granting preliminary approval on October 2, 2014. The settlement will pay an average of $6,000 to each Raiderette for each season worked between 2010 and 2012, and $2,500 for the 2013-2014 season.[3] The settlement resolved all disputed claims regarding payment for hours worked, including practices and appearances, unreimbursed expenses, interest on past wages, and penalties under the California Labor Code.
Déjà Vu All Over Again: The National Football League Cheerleaders Association
For the Buffalo Jills cheerleading squad, their current foray into labor unrest is déjà vu all over again. It is a little-known fact that the Buffalo Jills successfully formed a union in 1995. Formed in 1967, the Jills were leased to local fast food chain Mighty Taco by the Buffalo Bills organization in the mid-1980’s. Mighty Taco selected and managed the Jills, while using the squad to promote its business and provide cheerleading at 8 Buffalo Bills home games a season. After years of receiving little to no pay for their services, the Buffalo Jills filed a petition with the National Labor Relations Board to form a union. Despite claims of Mighty Taco that the cheerleaders were merely independent contractors, the NLRB Regional Director ruled that the Jills were employees of Mighty Taco as the company controlled the Jills’ rehearsal schedules, costumes, routines, time and places of performances and other factors (e.g., weight restrictions). In February 1995, the Jills voted 29-2 to join the National Football League Cheerleaders Association- the first, and to date only, professional cheerleaders union. Unfortunately, the Jills’ success was short-lived as Mighty Taco dropped its ‘sponsorship’ of the Jills after unionization. Despite finding short-term sponsors for the 1995 season, the Jills were forced to disband their union in order to secure sponsorship for the 1996 season and beyond.
Conclusion
Only time will tell if NFL cheerleaders will ultimately form one or more unions at the local or national level(s), but years of poor wages and difficult working conditions seem to have created a climate that is ripe for cheerleading squads across the National Football League (and across the other professional leagues) to form unions in an attempt to improve their current terms and conditions of employment. With the combined record of 9-22-1 shared by the Oakland Raiders, Cincinatti Bengals, Tampa Bay Buccaneers, New York Jets and Buffalo Bills[4], cheerleader picket lines outside of the teams’ respective stadiums might be far more interesting than the games being played inside.
Scott Andresen is the founding partner of Andresen & Associates, P.C. in Chicago, Illinois. Kevin B. McCoy is a Partner with FordHarrison LLP in Washington, D.C. For more information, please contact Mr. Andresen at scott@andresenlawfirm.com or Mr. McCoy at kmccoy@fordharrison.com. This article is published for general information purposes, and does not constitute legal advice.
[1] It is worth noting that NFL players are unionized, collectively, and not on a team-by-team basis. However, the NFL has significant control over the players’ day-to-day jobs, including such things as pay, discipline, suspension, uniforms, off the field conduct, etc. This type of governance does not exist at the NFL level for teams’ cheerleaders.
[2] See Brenneman v. Cincinnati Bengals, Inc., No. 1:14-CV-136 (S.D. Ohio 2014); Jaclyn S. v. Buffalo Jills, Inc., No. 804088-2014 (N.Y. Jul. 1, 2014); Krystal C. v. New York Jets, LLC., No. L00428214 (Super. Ct. N.J. May. 6, 2014); Manouchar Pierre-Val v. Buccaneers Limited Partnership, No. 8:14-CV-1182-T-33EAJ (M.D. FLA. May. 19, 2014); Caitlyn Y. v. The National Football League, No. GG14727746 (Super. Ct. Cal. July. 4, 2014); and Lacy T. v. The Oakland Raiders, No. RG14710815 (Super. Ct. Cal. Jan. 22, 2014).
[3] The amount for the 2013 season is reduced as the Raiders began paying minimum wage in 2013 before the lawsuit was filed.
[4] As of October 20, 2014
