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Former Cheerleader Sues Dallas Cowboys for Violating Federal Employment Regulations

Published by and on July 20, 2018

A former Dallas Cowboys cheerleader is suing the football franchise under the FLSA and Equal Pay Act, alleging overtime wage violations and unequal pay compared to the team’s mascot despite substantially similar job duties.

Former Dallas Cowboys cheerleader Erica Wilkins recently filed a putative class action in U.S. District Court in Texas against the NFL organization under the Federal Labor Standards Act (“FLSA”) and the Equal Pay Act (“EPA”). Wilkins claims that the team violated the FLSA because it failed to properly pay overtime and failed to pay the hourly rate for all hours worked. Wilkins further alleges that the team violated the EPA because she was paid less than Rowdy, the team’s mascot, who is male and has similar job responsibilities.

FLSA Claims:

Under the FLSA, a covered employer (an “enterprise engaged in commerce” that has an annual gross income of more than $500,000) is required to compensate non-exempt employees who work over 40 hours per week at a rate no less than one and one-half times the regular rate at which the employee is regularly compensated. 29 U.S.C. § 207(a)(1). Further, employers are required to make and keep accurate and detailed payroll data for non-exempt employees, including but not limited to employee identification information, the employee’s work schedule, the regular rate of pay for overtime, total hours worked, total wages paid, and the pay period covered by the payment. 29 U.S.C. § 211(c); 29 C.F.R. § 516.2; 29 C.F.R. § 516.2(a-b). Employers are required to maintain payment related data for at least three years. 29 C.F.R. § 516.5.

Wilkins, who worked for the Cowboys from May 2014 to August 2017, claims that she was paid $8.00 per hour, however, she further alleges that she was paid a flat rate payment for work events, including game day performances and show group performances, which did not count toward total hours worked during the week. Wilkins alleges that she often performed work for which she was not paid, which brought her hourly rate below the federal minimum wage $7.25. Based on the Dallas Cowboys’ own description, all cheerleaders were labeled as FLSA non-exempt employees and earning statements identified cheerleaders as overtime eligible employees.

According to Wilkins, Cowboys cheerleaders regularly worked in excess of 40 hours per week, did not receive sufficient overtime pay for work benefiting the organization, and were regularly instructed by the team’s management to make social media posts as part of their job duties for the benefit of the team. Allegedly, the Cowboys did not pay or record Wilkins’ or other team cheerleaders’ actual hours spent working for the organization’s benefit. The team also allegedly failed to keep accurate records in connection with hours worked by cheerleaders.

Although the FLSA’s recovery period for unpaid wages is typically two years, if an employer fails to keep compliant time records of all hours worked by employees, the recovery period extends to three years. See Ramos v. Al-Bataineh, 599 Fed.Appx. 548 (5th Cir. 2015) (holding that the employer willfully disregarded the possibility that he was violating the FLSA’s overtime payment requirements, and thus three-year statute of limitations for willful violation of FLSA applied to employee’s action). If the Cowboys did in fact classify team cheerleaders as non-exempt employees, failed to keep compliant time records, and failed to pay cheerleaders for all hours worked, including overtime, the team may face liability for double the amount of unpaid wages as far back as June 2015 and may be responsible for Wilkins’ attorneys’ fees and costs.

EPA Claim:

Under the EPA, covered employers are prohibited from discriminating between employees on the basis of sex by paying wages to employees at a lesser rate than the employer pays wages to employees of the opposite sex for work that requires equal skill, effort, and responsibility, and which are performed under similar working conditions except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. § 206(d); Brimmer v. Shinseki, No. 3:11-cv-1956-L, 2013 WL 4763947, at *11 (N.D. Tex. Sept. 5, 2013). “Pay” under the EPA is not limited to solely base wages, and it also includes overtime pay, bonuses, vacation and holiday pay, benefits, and more. Employers found in violation of the EPA may be liable for an employee’s back pay for all forms of compensation, attorneys’ fees and costs, and liquidated damages equal to the amount of back pay awarded.

Ms. Wilkins’ EPA claim is largely based on the disparate pay she and similarly situated cheerleaders received compared to the team’s mascot, who is male. The male employee was paid approximately $25.00 per hour (totaling $65,000 annually), while the female cheerleaders were paid $8.00 per hour (or less than $7.25 minimum wage based on all hours allegedly worked). Wilkins alleges she and other cheerleaders performed work with “equal, skill, effort, and responsibility under similar working conditions” as the team’s mascot (performed by a male employee). Wilkins claims that the team required both cheerleaders and the mascot appear and perform substantially similar work at games, camps, group appearances, and other events benefiting the team.

If Wilkins is able to show that that the female cheerleaders were paid less than the male mascot, despite having similar job responsibilities, and the team in unable to show that the pay differential is due to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex, the team may be liable for any back pay owed, liquidated damages, and Wilkins’ attorneys’ fees and costs.

NFL teams, including Houston Texans, Cincinnati Bengals, Oakland Raiders, New York Jets, Tampa Bay Buccaneers, and San Francisco 49ers, have recently faced litigation from former cheerleaders concerning minimum wage, overtime pay, and harassment. Several of these suits have settled outside of court or failed for lack of a proper comparator under the EPA. Wilkins’ EPA claim, however, that cheerleaders deserve the same pay as their comparator mascot colleagues may be a more persuasive argument to receive a favorable ruling in district court under the EPA.

Welter Insight

Wilkin’s putative class action should remind employers of their obligations under the FLSA and the EPA. Not only are covered employers required to properly classify and pay FLSA non-exempt employees for all hours worked (including overtime hours worked at the overtime rate of pay), employers must also ensure pay practices are complaint under the EPA. This means that employers should review compensation policies to ensure that company practices are not discriminatory under the EPA. Covered employers must further ensure that they are properly creating and maintaining time and pay records for all non-exempt employees under the FLSA. Employers who are concerned about pay or compensation practices, recordkeeping, or employee classification should seek counsel.

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