OAKLAND, Calif. (CN) - Dealing a blow to a civil lawsuit by two cheerleaders, the U.S. Department of Labor said Wednesday that Raiderettes in Oakland are "seasonal" employees not subject to federal minimum wage laws.
The federal agency launched an investigation into the Oakland Raiders after one its cheerleaders, identified only as Lacy T., filed a class action this year in Alameda County Superior Court. Sarah G. later joined as a plaintiff in an amended complaint.
They claim that the Raiders pay their cheerleaders less than $5 an hour, fine them for minor infractions, dock them pay for gaining weight, saddle them with unrecompensed expenses and do not pay them anything until the season is over.
With the Raiders filing last week to arbitrate those claims, a spokesman for the Department of Labor's San Francisco office told the San Francisco Chronicle that the Raiders qualified for an exemption from federal minimum wage and overtime pay requirements.
The exemption covers "seasonal amusement or recreational establishments," which includes "any such establishment that operates for no more than seven months a year," the article said. "NFL teams play their first preseason game in August and their last regular-season game in December."
Sharon Vinick, an attorney for Raiderettes with Levy Vinick Burrell Hyams, said in an interview that the agency miscalculated.
"Our clients aren't working only seven months," Vinick said. "They work from April, when they have tryouts, to January, when they are issued their paycheck; or minimally, from the first practice in May to December with the last game. Clearly, that's more than seven months."
In seeking to compel arbitration with the NFL Commissioner, the defendants noted that Lacy T. and Sarah G. both "signed written employment agreements stating that 'all disputes' they have with the Oakland Raiders shall be subject to binding arbitration through the National Football League."
"Plaintiffs' arbitration agreements contain no provision for the arbitration of class or representative claims," the motion continues.
The Raiderettes hope to keep the action in court.
"Under NFL rules, the Commissioner is entitled to a copy of every signed contract of every employee of every NFL team," Vinick said. "He's had copies of these [Raiderette] contracts for years and has never raised an issue. Clearly he's not a nonbiased party."
The Raiders say that the court has already decided that the arbitration agreements are not unconscionable and that the commissioner is not "automatically biased."
In a prior case against the Raiders, "this court ... specifically rejected the argument that the arbitration agreement was substantively unconscionable because it designated the NFL Commissioner as arbitrator," the team's motion stated. "The court rejected the claim that the Commissioner was automatically biased, and noted that both state and federal law permit the Court to enforce arbitration and substitute the arbitrator in the event there was any showing of bias, and that the NFL Guidelines also permitted the parties to propose 'alternative methods of proceedings.'"
In her original lawsuit, Lacy T. said that "Raiderettes are required to attend all of the Raiders' preseason, regular season and postseason home football games. They are also required to attend and participate in all practices, rehearsals, fittings, preparations, drills, photo sessions, meetings and workouts, as determined and directed by the Raiders."
Raiderettes also have to attend other special events to represent the Raiders, without pay, the complaint states.
For this, Raiderettes allegedly earn a flat rate of $125 per game, or $1,250 per season.
The Raiders fine cheerleaders for wearing the wrong workout clothes to rehearsals, failing to bring a yoga mat to practice, losing pom-poms or not turning in biographies on time, the lawsuit states.
If a Raiderette gains 5 pounds or looks "too soft," she could allegedly be benched and not allowed to perform.
The Oakland Raiders are represented by Kenneth Hausman of Arnold & Porter LLP.