BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 202 Hearing Date: June 10,
2015
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|Author: |Gonzalez |
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|Version: |April 15, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Gideon Baum |
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Subject: Professional sports teams: cheerleaders: employee
status.
KEY ISSUE
Should the Legislature define professional cheerleaders as an
employee for the purposes of California law?
ANALYSIS
Existing law provides specified timelines for final payment by
an employer to an employee due to discharge, quitting
employment, end of temporary employment assignment, or other
industry-specific pay timelines. (Labor Code §§ 201, 201.3,
201.5, 202, & 205.5)
Existing law sets a minimum wage for all employees in
California, with limited exceptions, and prohibits employers,
unless specified, from paying less than the state minimum wage.
The current minimum wage is $9.00 per hour and will rise to
$10.00 per hour on January 1, 2016. (Labor Code §1182.12)
Existing law permits an individual to seek recovery through a
civil suit of the unpaid balance of the minimum wage, including
interest, attorney fees, and costs of the suit.
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(Labor Code §1194)
Existing law also requires that if an employee is found to have
been paid less than the minimum wage, that employee must be paid
liquidated damages in an amount that is equal to the wages
unlawfully unpaid, plus interest. Existing Civil Code sets the
interest rate at 10 percent.
(Labor Code §1194.2 and Civil Code § 3289)
Existing law provides that if an employer demonstrates to the
satisfaction of the court that the failure to pay the minimum
wage was in good faith and that the employer had reasonable
grounds for believing that the act or omission was not a
violation of minimum wage law or regulations, the court may, in
its discretion, refuse to award liquidated damages or award a
lesser amount of liquidated damages to the employee. (Labor
Code §1194.2)
Existing law provides that it is a violation of the law for any
employer or employing unit to willfully fail or refuse to make
any contributions which are due under the Unemployment Insurance
or Disability Insurance programs. (Unemployment Insurance Code
§2108)
Existing law provides that any person or employer who, with or
without intent to evade ,
fails to withhold or fails to pay over any personal income tax
withheld, is guilty of a misdemeanor and, upon conviction, shall
be fined an amount not to exceed one thousand dollars ($1,000),
or imprisoned for not more than one year, or both the fine and
imprisonment, at the discretion of the court. (Unemployment
Insurance Code §2118)
Existing law creates the Department of Fair Employment and
Housing (DFEH) and declares its mission to protect and safeguard
the right and opportunity of all persons to seek, obtain, and
hold employment without discrimination or abridgment on account
of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or
military and veteran status. (Government Code §§ 12900 and
12920)
This bill would:
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1) Provide that, notwithstanding any other law, for
purposes of the provisions of state law that govern
employment, a cheerleader that is utilized by a
California-based professional sports team during its
exhibitions or games shall be deemed to be an employee.
2) Define "cheerleader" to mean an individual who performs
acrobatics, dance or gymnastics exercises on a recurring
basis. However, the term does not include an individual who
is not otherwise affiliated with the sports team and is
utilized no more than one time in a calendar year.
3) Define "professional sports team" to mean a team at
either a minor or major league level in the sport of
baseball, basketball, football, ice hockey, or soccer.
4) Define "California-based team" to mean a team that plays
a majority of its home games in California.
5) Provide that the professional sports team shall ensure
that the cheerleader is classified and treated as an
employee.
COMMENTS
1. A General Discussion on Employee Misclassification in
California:
Employee misclassification occurs when employers illegally
classify employees as independent contractors, rather
employees. This allows employers to dodge tax payments,
workers' compensation premiums, and workplace protections.
Misclassification is a significant problem in California: in
the Employment Development Department's (EDD) 2013 annual
report, EDD reported $36,348,078 in payroll assessments and
$9,131,000 in tax fraud assessments in 2012 alone.
For most employees, the deciding factor on if a worker is
either an employee or an independent contractor comes down to
the level of control the employer has over the worker, a
standard which dates back to English Common Law. While this is
determined by a multi-factor test, key determinants include
control over hours, equipment, and supervision. However, there
are also a small number of employees which are statutorily
classified as employees, irrespective of common law.
AB 202 would define professional cheerleaders as employees for
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the purposes of employment law, making a common law test for
employment unnecessary.
2. The National Football League (NFL) and Cheerleader
Misclassification:
In 2014, the Oakland Raiders were sued by a group of current
and former cheerleaders who alleged that the Raiders refused
to pay minimum wage or overtime, made unlawful deductions, and
also refused to provide meal and rest breaks. According to the
filing, Raiderettes (the name of the cheerleading squad) were
paid a flat rate of $125 per game, irrespective of hours
worked. The filing also noted mandatory charity appearances
for the Raiderettes, for which no payment at all was received
by the cheerleaders.
Similar lawsuits were filed against the Tampa Bay Buccaneers,
the New York Jets, the Buffalo Bills, and the Cincinnati
Bengals. During the Buffalo Bills lawsuit, a well-regarded
sports website known as Deadspin published the Buffalo Bills
cheerleader handbook. Reporting that the handbook was similar
to other cheer handbooks around the league, Deadspin detailed
the level of control the Buffalo Bills exerted over their
cheerleading squad. Examples included:
- Feminine hygiene;
- Appropriate use of tampons;
- Nail and hair grooming;
- Eating etiquette; and
- Stringent rules of what jewelry can and cannot be worn.
Despite this level of control, the Buffalo Bills argued their
cheerleaders were not employees, as did the other teams listed
above.
3. Proponent Arguments :
Supporters argue that this bill will would clarify that a
professional cheerleader is provided the same rights and
benefits of an employee under state law and is not improperly
misclassified as an independent contractor. As a result,
professional sport cheerleaders would be guaranteed a legal
wage for attending and participating in team practices,
rehearsals, preparations, meetings and required workouts. In
addition, they would also be covered for all required
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appearances at corporate, community and charity events.
3. Opponent Arguments :
None on file.
4. Prior Legislation :
AB 1309 (Perea), Chapter 653, Statutes of 2013, limited the
right of out-of-state athletes to file workers' compensation
claims in California.
SUPPORT
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation, AFL-CIO
California School Employees Association, AFL-CIO
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers & Scientists of California
International Longshore & Warehouse Union
Jockey's Guild
Professional & Technical Engineers
The South Bay AFL-CIO Labor Council
UNITE-HERE, AFL-CIO
Utility Workers Union of America
OPPOSITION
None on file.
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