Civil Rights & Constitutional Law
Article from "The Federal Lawyer"
July 29, 2013
Tuesday, November 20, 2018
Cleveland, OH – Today the National Football League, Inc. (NFL) was sued by former NFL security officials—all former law-enforcement leaders—who allege the NFL cheated them out of employee wages, benefits, and pensions by classifying them as “independent contractors” instead of employees. The lawsuit, Foran, et al. v. NFL, Inc., et al., was filed today in the U.S. District Court for the Southern District of New York in downtown Manhattan.
This is not the first time the NFL has been accused of playing fast-and-loose with employee rights. In a suit filed earlier this year, nine former NFL security representatives sued the NFL for age discrimination, Federal Labor Standards Act violations (FLSA), and violations of the Employee Retirement Insurance Act (ERISA).
In addition to any payouts for their liability to the plaintiffs in both cases, the NFL potentially faces steep fines by state and federal regulators, the possible disqualification of its employee-retirement plans from beneficial tax treatment, as well as penalties under the Affordable Care Act, which requires companies having more than 50 employees to offer health insurance to all of their employees. (The NFL has over 1,900 employees.)
Led by retired FBI agent Patrick Foran, today's new complaint alleges the NFL carried only around five or six security professionals in its Park Avenue offices in New York on the books as NFL employees, when, in fact, it employed anywhere between 34 and 66 security professionals around the country year-round.
While the NFL required the security representaives to sign the same “Consulting Agreement,” which supposedly made them “independent contractors,” the suit notes the law is clear that an employer doesn’t get to make that decision.
Were that permitted, every employer could easily dodge paying federal Social Security and Medicare taxes, state unemployment insurance, workers' compensation, and disability insurance—not to mention avoiding all the legal protections for employees under federal and state laws. Employee protections include antidiscrimination laws, like the Age Discrimination in Employment Act (ADEA), which applies only to employees. Such claims are being pursued in the Buckley case. They also include a long list of federal and state labor laws, which both the Foran and Buckley cases are demanding be enforced against the NFL.
Whether workers are deemed employees under federal or state laws depends upon many different factors. Most important, however, is whether the hiring party has “the right to control the manner and means by which the service in question is rendered.” When you call in a roofer, for example, you don’t get to tell her who she puts on the roof, what tools she should use, or how to do her work. The roofer is an independent contractor. She gets to decide. But the roofer may well have employees. If so, she is entitled to tell them exactly what to do—which is what makes them employees.
The Foran complaint alleges:
The NFL’s security representatives represent the NFL’s interests with the NFL teams, who are separately owned entities with their own separate security departments. The NFL security representatives—one of whom is assigned to each of the NFL’s 32 member teams—ensure that the League’s rules, security procedures, and security protocols are observed by the teams, the stadiums, game officials, and players. The security representatives are the NFL's eyes and ears on the field and in the stadium, taking direction from, and reporting back to, the NFL’s security department in the New York City headquarters.
Security representatives also do a lot of other work for the League, like pre-employment background checks, investigations relating to any criminal and personal-conduct violations by NFL players and employees, stadium-security inspections of other NFL stadiums, personal or home-security services for players and NFL personnel, and prescription-drug audits.
The security representatives worked for the NFL for over a decade before they left in the wake of turmoil created by the hiring of a new security director at the NFL’s New York Headquarters. The new director, Cathy Lanier, terminated all of the security representatives without warning on a conference call in July 2017, according to reports of those who were on the call.
Subodh Chandra, the plaintiffs' lead counsel, said, "The NFL didn't just fumble here—it deflated the ball, when it knowingly failed to provide these distinguished law-enforcement alumni with the wages, benefits, and pensions to which they were legally entitled."
This complaint was filed in the United States District Court for the Southern District of New York (Manhattan), and is case number 1:18-cv-10857.
Subodh Chandra, Donald Screen, and Michael Halberstam of the Chandra Law Firm LLC represent the NFL Security Representatives.
The complaint may be read here.
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