BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 202|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 202
Author: Gonzalez (D)
Amended: 4/15/15 in Assembly
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 3-1, 6/10/15
AYES: Mendoza, Leno, Mitchell
NOES: Stone
NO VOTE RECORDED: Jackson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 56-23, 5/11/15 - See last page for vote
SUBJECT: Professional sports teams: cheerleaders: employee
status
SOURCE: Author
DIGEST: This bill defines a professional cheerleader as an
employee for the purposes of California law.
ANALYSIS:
Existing law:
1)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
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Page 2
pay timelines. (Labor Code §§ 201, 201.3, 201.5, 202, &
205.5)
2)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)
3)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. (Labor Code §1194)
4)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)
5)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)
6)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)
7)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)
8)Creates the Department of Fair Employment and Housing (DFEH)
and declares its mission to protect and safeguard the right
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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:
1)Provides 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)Defines "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)Defines "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)Defines "California-based team" to mean a team that plays a
majority of its home games in California.
5)Provides that the professional sports team shall ensure that
the cheerleader is classified and treated as an employee.
Background
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
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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 defines professional cheerleaders as employees for 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.
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Despite this level of control, the Buffalo Bills argued their
cheerleaders were not employees, as did the other teams listed
above.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified6/29/15)
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation, AFL-CIO
California School Employees Association, AFL-CIO
California State Association of Electrical Workers
California State Pipe Trades Council
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
Western States Council of Sheet Metal Workers
OPPOSITION: (Verified6/10/15)
None received
ARGUMENTS IN SUPPORT: Proponents 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
appearances at corporate, community and charity events.
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ASSEMBLY FLOOR: 56-23, 5/11/15
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown,
Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper,
Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Linder,
Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian,
O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber,
Williams, Wood
NOES: Travis Allen, Bigelow, Brough, Chang, Chávez, Dahle, Beth
Gaines, Gallagher, Grove, Hadley, Harper, Jones, Kim, Lackey,
Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson,
Steinorth, Wagner, Wilk
NO VOTE RECORDED: Atkins
Prepared by:Gideon Baum / L. & I.R. / (916) 651-1556
6/29/15 10:34:11
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