Save the Cheerleader: Employees or Independent Contractors?

“They think it’s a joke, ‘Oh, these little cheerleaders.’ ”

Lacy Thibodeaux

Recent accounts of life as a professional cheerleader in the NFL have been anything but glamorous. As a former Oakland Raider cheerleader explained, she was paid $125 a game at the end of the season while being expected to pay for cosmetics, expensive hair treatments, and travel costs out of pocket. Court documents from a 2009 case included a Baltimore Ravens handbook requiring cheerleaders to maintain “warm skin tones” with possible suspensions based on weight violations (AKA the “jiggle” test). As the stories roll in from across the nation, the heart of the cheerleader’s legal issue is whether or not they are employees of the NFL or independent contractors.


Photo by Ralph Daily on Flickr CC BY 2.0.

As stated by the IRS, “[i]t is critical that business owners correctly determine whether the individuals providing services are employees or independent contractors.” How workers are classified affects the obligations employers owe to employees, such as benefits and wages. Recently, Uber has ran into a worker classification issue involving its drivers. The Chicago Tribune opined:

“Uber drivers are independent contractors, but several are plaintiffs in a lawsuit arguing that they should be classified as employees. That would entitle them, among other things, to be reimbursed for expenses, including vehicle wear and tear.”

In deciding whether a worker is an independent contractor or an employee, courts will often look at the amount of control an employer has over the worker. In 1987, the IRS made a list of 20 factors (too long to post here) based on common law rulings for deciding whether an employer-employee relationship exists. In 2004, the IRS added 3 categories of evidence to its considerations, namely (1) behavior control over the worker, (2) financial control, and (3) the relationship of the parties. Similarly, the Department of Labor has issued its own non-exclusive 6 factor test for classifying workers under the Fair Labor Standards Act:

  1. The extent to which the work performed is an integral part of the employer’s business. 
  2. Whether the worker’s managerial skills affect his or her opportunity for profit and loss.
  3. The relative investments in facilities and equipment by the worker and the employer.
  4. The worker’s skill and initiative.
  5. The permanency of the worker’s relationship with the employer.
  6. The nature and degree of control by the employer. 

While it may take years for the courts to rule on the matter, states and lawmakers are also looking to remedy the situation. Recently, 19 legislators from 8 states sent a letter to NFL Commissioner Roger Goodell encouraging him to make a league wide change classifying NFL cheerleaders as employees. While California has already passed legislation classifying cheerleaders as employees, the hope of the legislators is to avoid the lengthy process of changing the classification in the other 49 states. You can read the full letter here.

Commissioner Goodell is no stranger to legal issues affecting the league. This past April he announced the NFL would voluntarily give up its tax exempt status, calling it a “distraction.” With mounting pressure to classify cheerleaders as employees and women accounting for the fastest growing NFL fan demographic, it is unclear if/when NFL cheerleaders will distract Commissioner Goodell enough to make a change in league worker classification policy.