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Monday, September 8, 2014

Nothing to Cheer About

By: Tommy Eden

Members of the Raiderettes Cheerleader squad will receive $1.25 million to their settle class-action claims the Oakland Raiders football franchise for failing to compensate them for all hours worked and reimburse them for expenses. The Raiders will pay the 90 cheerleader plaintiffs from $2,460 to $20,634, according to the brief in support of the joint motion for preliminary approval of the settlement filed Sept. 4 in Alameda County Superior Court. Under the mediated settlement, class counsel will receive $400,000 in attorneys' fees and $23,000 in costs. This is the first suit settlement against a football team for failing to pay cheerleaders for their hours worked.

The Raiderettes lawsuit led to other wage and hour lawsuits against other National Football League franchises including the New York Jets, Buffalo Bills, Cincinnati Bengals and Tampa Bay Buccaneers.

The Raiderettes alleged in their lawsuit that the Raiders failed to pay cheerleaders for all hours worked, reimburse them for business expenses, and provide meal and rest breaks and made unlawful deductions in violation of California law. They also claimed in their lawsuit that they were required to pay $150 or more to have their hair done by a team-selected stylist; pay for replacements uniforms and lost or damaged pom-poms; purchase false eyelashes, tights, and white bras; and pay for team specified makeup once the provided cosmetics ran out.

Common Sense Counsel: This wage and hour claim by the Raidettes, and large class settlement, is clearly a blitz the Raiders were totally unprepared to stop. So what are the top three Fair Labor Standard Act (FLSA) violations against employees and how do you avoid the sack.

1) Misclassification of Exempt Employees. Basically it is either classify and pay correctly now or pay the Department of Labor (DOL) later. Exemptions are based on job duties, salary level and salary payments. Salaried exempt employees must be paid no less than $455 per week on a guaranteed salary basis.

2) Not Counting Every Hour Worked. It is imperative to ensure that every hour the employee performs tasks for you is counted and paid correctly. Hours worked need to include not only hours actually performing job duties, but also any other suffered or permitted to work by the employer or for the employers benefit. Work not requested but suffered or permitted is work time.

3) Not Calculating Overtime Pay the FLSA Way. The FLSA has its own way of defining overtime and the “regular rate” which also includes shift differential and non-discretionary bonuses. Improper “rounding” of time can result in a costly DOL settlement.

So before you start your next work day make sure your game plan can pick up these three FLSA Blitz packages.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter tommyeden3