Ballpark Concession Workers Exempt from Receiving Overtime Pay

By: Nicole Gervase

When anyone goes into a ballpark, the first thing they want is a hot dog and a drink.  However, it does not occur to many fans that these people that provide you with food and drinks, especially in Maryland, do not receive overtime pay.  A recent state case, Hill v. Del. N. Companies Serv., Inc., granted summary judgment for the vendor, therefore exempting ballpark concession workers from receiving overtime pay.[1]

The plaintiffs in Hill – two concession stand workers at Camden Park – brought the action claiming that the vendor violated 29 U.S.C. § 207(a)(1) by not compensating them and other concession stand workers for their overtime hours.[2]  According to The Fair Labor Standards Act (“FLSA”), “no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”[3]  Overtime in Maryland, similarly to the FLSA, is described as the “payment to an employee of one and one-half (1.5) times the regular hourly wage for work performed in excess of 40 hours in a 7-day week.”[4]

According to the State of Maryland Department of Labor, Licensing and Regulation, there are a number of workers who are exempt from overtime pay.[5]  Within this list are those who work at “[c]ertain establishments selling food and drink for consumption on the premises grossing less than $400,000 annually.”[6]

However, the Court found that the plaintiffs were exempt from being compensated for overtime pay under the FLSA section 213.[7]  The aforementioned states: section 207 of this title shall not apply with respect to – – any employee employed by an establishment which is an amusement or recreational establishment . . . if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 1/3 per centum of its average receipts for the other six months of such year.[8]

Further, the Court found that the vendor was a “concessionaire” of the ballpark and that it did not meet the gross seasonal sales number that would qualify the vendor to pay its workers for overtime.[9]

On October 3, 2016, the United States Court of Appeals for the Second Circuit further stated that the workers at Camden Park were “exactly the type of seasonal recreational employees federal law was designed to exempt from mandatory overtime pay.”[10]  On appeal, the appellants argued that the lower court “tossed their claims out too quickly.”[11]  They claim that a vendor is separate from the Baltimore Orioles and therefore, the vendor does not fall under the recreation exception to paying employees overtime.[12]  The Court, however, found that the vendor was not considered an “amusement or recreational establishment” under the FLSA and therefore dismissed the class action brought by the plaintiffs.[13]  “We determine that appellee’s subsidiary is such a ‘concessionaire’ and also that its receipts reflect that its business is seasonal, so that it qualifies for the overtime exemption.”[14]  The Court further found that the vendor’s sales during the baseball season were merely only 4.86% of receipts for off-season months.[15]  It seems that, after all, these concession stand employees are exempt from receiving overtime pay.

[1] Hill v. Del. N. Companies Serv., Inc., No. 11-CV-00753(S)(M), 2014 U.S. Dist. LEXIS 184058, at *3 (W.D.N.Y. Dec. 15, 2014).

[2] Id. at *2.

[3] 29 U.S.C. § 207(a)(1) (2016).

[4] Overtime: In General – The Maryland Guide to Wage Payment and Employment Standards, Dep’t of Lab., Licensing, and Reg., wagepay/wpotgenl.shtml (last visited Oct. 12, 2016).

[5] Maryland Minimum Wage and Overtime Law, Dep’t of Lab., Licensing, and Reg., wages /minimumwagelaw.pdf (last visited Oct. 12, 2016).

[6] Id.

[7] Hill, 2014 U.S. Dist. LEXIS 184058, at *3.

[8] 29 U.S.C. § 213(a)(3) (2016).

[9] Matthew Perlman, 2nd Cir. Finds Orioles’ Concession Provider Exempt From OT, Law 360 (Oct. 3, 2016, 3:36 PM),

[10] Daniel Wiessner, Baseball Concession Workers Exempt From Overtime Pay – 2nd Circuit, Reuters (Oct. 4, 2016, 6:45 AM),

[11] Joanna Szabo, Orioles Concession Workers File Unpaid Overtime Class Action Lawsuit, Top Class Actions (Apr. 19, 2016)

[12] Id.

[13] Wiessner, supra note 10.

[14] Id.

[15] Id.

Don’t Tell Me You Love Me: Wait, What?! “Onionhead” is a Religion

By: Michael Giarratano

United States District Court Judge Kiyo A. Matsumoto recently decided that “Onionhead” is a religion under Title VII.[1]  Judge Matsumoto granted the Equal Opportunity Employment Commission’s (“EEOC”) motion for partial summary judgment as to the issue of whether “Onionhead” was a religion or not.[2]

The EEOC brought this case on behalf of former employees of United Health Programs of America Inc. and Cost Containment Group Inc.  These former employees claim that they were discriminated against by their employers under Title VII of the Civil Rights Act of 1964.[3]  The employees were accusing the employer of firing them because they would not conform to the “Onionhead” activities.[4]  The employers argued that “Onionhead” is a multi-purpose conflict resolution tool that they use to control conflicts within the workplace.[5]  The former employees described it as a system of religious traditions and practices.[6]  The communications between the supervisors and employees consisted of emails about “[G]od, spirituality, demons, Satan, divine destinies, the Source, purity, blessings, and miracles.”[7]  Furthermore, employees were told that “they should not use overhead lighting in order to prevent demons from entering the workplace through the lights.”[8]

In its decision, the Court found that “Onionhead” is a religion under Title VII.[9]  When making this decision, the court evaluated whether the beliefs are sincerely held and whether they are in the believers own scheme of religion.[10]  In addressing the first prong of sincerity, the Court found that the CEO and upper management had sincere beliefs, stating: a reasonable jury could find that by inviting Jordan into the workplace, paying her to meet and conduct workshops, authorizing her to speak to employees about matters related to their personal lives, disseminating Onionhead/Harnessing Happiness material and directing employees to attend group and individual meetings with Jordan, Hodes and his upper management held.[11]

The Court heavily relied upon the e-mails presented to the Court when they addressed the second prong of their religious nature of beliefs.[12]  Specifically, the Court stated, “[t]he above-described e-mails reflect references in the specific context of discussions about Onionhead – to God, spirituality, demons, Satan, divine destinies, miracles, higher guidance teachings, and grail.”[13]  Also, there was an “Onionhead” dictionary that made references to divinity, spirituality, souls and heaven.[14]

This ruling will have to make employers pause because it really shows how “religion” has a very expansive meaning.[15]  The EEOC and attorneys handling Title VII discrimination cases will see their caseloads increase after this ruling.  I believe that it will not be a surprise to see Title VII discrimination cases based on religion be brought up since this ruling has expanded what it takes to be considered a religion under Title VII.

[1] Matthew Bultman, ‘Onionhead’ Is A Religion, Judge Rules in EEOC Bias Suit, Law360 (Oct. 3, 2016, 4:30 PM),

[2] Gerald L. Mattman, Jr. & Alex W. Karasik, Now Something Know As “Onionhead” Is A “Religion” For Which The EEOC Can Bring A Religious Discrimination Suit, Seyfarth Shaw LLP: Workplace Class Action Blog (Oct. 7, 2016),

[3] EEOC v. United Health Programs of America, Inc. and Cost Containment Group Inc., No. 14-CV-03673 (E.D.N.Y. Sept. 30, 2016).

[4] Id.

[5] See Mattman & Karasik, supra note 2.

[6] Id.

[7] EEOC v. United Health Programs of America, Inc. and Cost Containment Group Inc., No. 14-CV-03673 (E.D.N.Y. Sept. 30, 2016).

[8] Id. at 11-12.

[9] Id. at 43.

[10] Id. at 23.

[11] Id. at 35-36.

[12] Id. at 32-33.

[13] Id. at 36.

[14] Id. at 37.

[15] See Mattman & Karasik, supra note 2.


Pros and Cons: Why the NCAA Should Pay Its Athletes

By: Jessica Schild

On Monday, the Supreme Court denied the petitions of former college athletes to review the amateurism model of college sports.[1] This amateurism model prevents players from receiving any sort of compensation beyond that of the scholarship packages awarded to them.[2] The Supreme Court’s denial seems to affirm the Ninth Circuit ruling that players can only be compensated up to the cost of attending college.[3] This ruling comes after college football players in 2014 petitioned the National Labor Relations Board (“NLRB”) to form a union.[4] If a collegiate athlete is an “employee” under a union agreement, then the rationale is that they should be paid like one.[5]

The National Collegiate Athletic Association (“NCAA”) claims that college athletes are just students.[6] In fact, the term “student-athlete,” is meant to distinguish college athletes from employees who receive general compensation.[7] However, what the NCAA and the NLRB fail to distinguish, is that the NCAA requires athletes to miss classes for televised games that bring in large amounts of revenue.[8] In fact, college athletes involved in the NCAA men’s basketball championship may even miss up to one-fourth of all classes during the semester in which they are in season.[9] The NCAA generates more revenue from these athletic events than from both the National Basketball Association (“NBA”) and the National Hockey League (“NHL”) combined.[10]

Most people, including the Justices sitting on the Supreme Court, find the facts against these statistics more convincing. According to the Ninth Circuit, caps on student athlete compensation are anti-competitive.[11] However, the court reasoned that these caps were justified due to their pro-competitive benefits.[12] “The decision overturned the lower court ruling that would have allowed [college] athletes to receive up to $5,000 per year in deferred cash payments for use of their names, images and likenesses . . . .”[13] Courts have agreed that any payments outside of the educational likeness destroys amateurism.[14]

Recently, the NCAA has attempted to implement programs in an effort to reduce the amount of time athletes spend practicing and playing, and increase the amount of time that athletes spend doing school-work.[15] These reforms certainly benefit the average NCAA student-athlete.[16] The “student-athlete” concept is often emphasized by universities and colleges because of it’s structure: the “student” always comes first. However, most college athletes will tell you that in their eyes, this is not case. The question still remains whether or not college athletes can pursue compensation not tethered to educational expenses.[17] It will be interesting to see how pending and future decisions impact the economics of college athletics.[18]

[1] Zachary Zagger, High Court Stays Out Of College Athlete Pay Debate, For Now, Law360 (Oct. 3, 2016, 9:49 PM),

[2] Id.

[3] Id.

[4] Marc Edelman, 21 Reasons Why Student-Athletes Are Employees And Should Be Allowed To Unionize, Forbes (Jan. 30, 2014, 10:11 PM),

[5] Id.

[6] Id.

[7] Zachary Zagger, College Player Compensation Issue Rages On Despite Reforms, Law360 (Jan. 10, 2016, 11:55 PM),

[8] Edelman, supra note 4.

[9] Id.

[10] Id.

[11] Zachary Zagger, No Matter The Claims, NCAA Athletes As Employees A Stretch, Law360 (Oct. 4, 2016, 8:46 PM),

[12] Id.

[13] Zagger, supra note 1.

[14] Id.

[15] Zagger, supra note 7.

[16] Id.

[17] Id.

[18] Id.

Getting Straight to the Pointe: Ballerinas Leap Forward But Continue To Fall Short Of Adequate Pay

By: Victoria Massimino

While it may be simple to write off ballet dance as a dying art, there is still much this unique pastime has to offer the fast-paced society we live in today.[1] Admittedly, classical ballets don’t attract the crowds that say, Hollywood blockbusters do, however, visiting the ballet remains a valued cultural experience.[2] Setting aside artistic fulfillments, ballerinas have consistently been faced with the obstacle of being undercompensated for their talents.[3]

After training for the majority of their life, a ballet dancer auditions for a company, at which point, if accepted, they sign a contract as a full-time employee and are considered a professional dancer.[4] Dancers generally contract for a year at a time,[5] and are paid weekly, for only those weeks they work.[6] The various tiers of a ballet company –corp de ballet, demi-soloist, soloist, and principal dancer – ascend with experience and skill.[7] The “corp” is comprised of the general body of dancers that make up a company, and “principal” is the most supreme title a ballerina can achieve.[8]

Not surprisingly, the largest and most well renowned dance companies flourish in New York, Boston, and San Francisco.[9]  And while these cities might be ideal for making it big in the dance world, they are also among areas with the highest costs of living.[10] This places a dancer’s chances for success directly at odds with their earning potential. A member of a New York company, for example, averages about $829 a week for a thirty-eight week season,[11] while the average rent for a one-bedroom Manhattan apartment totals $3,150 per month.[12] The Bureau of Labor Statistics, similarly, listed the hourly wage of a performing arts company at roughly twenty dollars an hour.[13] The problem stems from the enormous budget it takes to put on a classical ballet and failure to fill the theatre.[14] As a result, musicians, costume designers, stage crew, and administrative staff earn higher wages than dancers featured in the show.[15]

Disparities in a performer’s salary are not so easily remedied. Between May 2011 and October 2013, dance company executives negotiated their ballet contracts with the American Guild of Musical Artists (“AGMA”).[16] The AGMA represents musical performing artists, opera and chorus singers, and professional ballet dancers.[17] The New York City Ballet (“NYCB”) and San Francisco Ballet, two of the top ballet companies, engaged in these negotiations.[18] Although they received a 2.5% increase in 2011, that contract ended in 2012, and the NYCB dancers were forced to renegotiate again in 2014.[19]  In the same year, San Francisco Ballet dancers made a small triumph, with a one percent increase and one additional workweek for the year.[20]

As a group, ballerinas are characteristically underpaid. This is especially true when compared to professional sports. According to the Bureau of Labor Statistics, the estimated salary for spectator sports is $93,000 a year.[21] But while an athlete’s yearly revenue far outweighs a dancer’s, the time and effort a dancer dedicates to their training certainly amounts to the level of an athlete.[22] The demands on these two professions are undeniably similar; both practice for countless hours a week, are held to exceptionally strict standards, and are required to maintain physical stamina and accuracy. [23] Furthermore, although sporting events require the same type of behind the scenes support as a creative performance, the players are the ones who get paid the big bucks – unlike a ballet dancer, whose wages rank below their stage crew and managerial staff.[24] This difference appears widely unfair, considering that ballerinas and athletes alike, are the ones who hold the spotlight and draw in the audience to begin with.

[1] Flora Zhang, Why fall in love with ballet?, CNN (Sept. 22, 2014, 7:15 PM),

[2] Id.

[3] Think Everything Is Beautiful at the Ballet? Wage Issues in the Dance World, dlreporter (Apr. 14, 2014),

[4] Id.

[5] Id.

[6] Alice Stuart, The Average Salary of a Corps de Ballet, Our Everyday Life, (last visited Oct. 7, 2016).

[7] Kay Bosworth, The Salaries of Ballet Dancers, Work, (last visited Oct. 7, 2016).

[8] Think Everything Is Beautiful at the Ballet? Wage Issues in the Dance World, supra note 3.

[9] Id.

[10] Id.

[11] Bosworth, supra note 7.

[12] Think Everything Is Beautiful at the Ballet? Wage Issues in the Dance World, supra note 3.

[13] Occupational Employment and Wages, May 2015, Bureau of Labor Statistics, (last modified Mar. 30, 2016).

[14] Think Everything Is Beautiful at the Ballet? Wage Issues in the Dance World, supra note 3.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Occupational Employment Statistics, Bureau of Lab. Stat., (last modified Mar. 30, 2016).

[22] Stuart, supra note 6.

[23] See Siddharth Suchde, A professional athlete’s fitness regime: An insider’s guide, The Health Site, (last updated Feb. 28, 2014, 6:27 PM); See also Zhang, supra note 1.

[24] Think Everything Is Beautiful at the Ballet? Wage Issues in the Dance World, supra note 3.


My Life is [in] a Zoo

By: Elana Kalkanis

Working at a zoo might sound like an idealistic occupation for many, who imagine a place where employees are met with constant excitement and the ability to interact with the world’s wildest. “Some people think we just spend all day playing with animals,” says zookeeper Melissa Knutson of the Hogle Zoo in Salt Lake City, Utah, “but it’s so much more than that. It’s a lot of work to take care of another living thing.”[1]  Recent breakthroughs in animal protection laws, specifically those focused on zoo captivity, have simultaneously begun to expose the realistic working conditions that employees endure in some of America’s most popular zoos.[2]

Federal statutes such as the Occupational Safety and Health Act, hereinafter “OSHA,” enacted in 1970[3], and the Management of Health and Safety at Work Regulations, of 1999[4], hold local authority health and safety officers wholly responsible for carrying out inspections at zoos.[5] The purpose of these inspections is “to enable the enforcing authority to satisfy itself that hazards have been identified, and risks suitably and efficiently controlled.”[6] Inspections may also be carried out by a zoo operator, who allocates any possible risks to both employees and non-employees, which may occur during any given day of operation.[7] Additionally, the regulations require employers to ensure that employees are not given work “beyond their capability,” or which may be hazardous to themselves or others.[8] But even with such provisions put into place, zoo employees are still threatened by the inherent dangers of working in such an environment.[9]

Unfortunately, some of the greatest dangers to zoo employees take place in the presence of the very animals they’re meant to take care of.[10] Daily tasks for zoo employees include: feeding the wild animals, transporting them, monitoring their health, and handling them for exhibition purposes.[11] In these situations specifically, wild animals tend to act just that, wild. Employees are often attacked by animals who feel threatened by a human’s presence in the unnatural zoo environment, which leads to their sedation, in order to minimize hazards.[12] On October 5, 2013, “an employee at the G.W. Exotic Animal Park in Wynnewood, Oklahoma, suffered serious injuries when a tiger nearly ripped off her arm.”[13] A four-month investigation led to a citation for numerous violations of the Occupational Safety and Health Act’s general duty clause, finding that G.W. Exotics “did not adequately protect employees.”[14] In addition, G.W. Exotics created a risk of death or serious physical harm to their employees by exposing them to wild animals, which resulted in an unjustly low monetary penalty.[15] “Being struck, mauled or bitten by such animals is now a recognized industry standard,” yet some animal entertainment facilities refuse to recognize it as such.[16] In a similar case, OSHA issued a “general duty clause” citation to SeaWorld for exposing trainers to “recognized hazards of drowning or injury,” following the death of an orca trainer.[17] SeaWorld objected that human interactions with orcas pose a hazard and failed to further enforce safety measures for their employees.[18]

Even under the best circumstances at the best zoos, “captivity cannot begin to replicate the wild animals’ habitats.”[19] An Oxford University study, conducted over four decades to observe animals in captivity, found that zoo animals such as bears, lions, tigers, and cheetahs, “show the most evidence of stress and/or psychological dysfunction in captivity.”[20] Wild animal attacks on zoo employees, and the public in general, are attributed to these exact conditions.[21] Animal exhibitors are supposed to enforce the federal Animal Welfare Act “AWA,” which sets minimum standards in caring for, handling, transporting, and housing exhibited animals, but the standards are embarrassingly trivial.[22] The dark truth is that thousands of animals, many endangered, continue to languish in roadside zoos and menageries.[23]

On May 28, 2016, at the Cincinnati Zoo in Ohio, a lowland silverback gorilla named Harambe was shot dead after a three-year-old boy climbed into his enclosure.[24] The outpour of media attention from this incident revealed that Harambe was not only born into captivity and intended to be used for breeding, but also that his habitat enclosure was not adequately built.[25] The below-standard exhibit was a violation of the Health and Safety at Work Act, and undoubtedly put the employees and the public in imminent risk of death or harm.[26] Harambe’s tragic death sheds additional light on the horrific treatment of captive animals, and furthermore, the inevitable cycle of danger imposed on zoo employees.

[1] Sara Royster, Working With Animals, Bureau Of Lab. Stat. (Apr. 2015),

[2] Kali S. Grech, Overview of the Laws Protecting Zoos, Mich. St. U. (Animal Legal & Hist. Ctr., 2004),

[3] 29 U.S.C § 651 (1970).

[4] Management of Health and Safety at Work Regulations of 1999, Pub. L. No. 3242.

[5] See also Health and Safety Executives, Managing Health and Safety in Zoos, at 9-10 (also available at

[6] Id. There are many approaches to an inspection; they will commonly consist of a physical inspection of the zoo or parts of it, and an audit of some or all the zoo’s health and safety procedures and control measures. Id.

[7] Id.

[8] Id. at 10. (Explaining that work which may be considered “beyond their capability” is assessed by weighing an employee’s knowledge, experience, training and learning capability.).

[9] Zoos: An Idea Whose Time Has Come And Gone, PETA, (last visited Oct. 2, 2016).

[10] Health and Safety Executives, supra note 5, at 15.

[11] Id.

[12] Id.

[13] Daniel Lutz, Laws That Protect Animal and Human “Workers,” Animal League Def. Fund (May 1, 2014),

[14] Id. (Discussing the “general duty clause” is not sufficient enough to replace an industry-wide rule, requiring permanent physical barriers between employees and animals, yet it is noteworthy in OSHA’s enforcement of regulations in similar cases.).

[15] Id. “The agency proposed a $5,200 fine (negotiated to $2,400) for failing to protect employees, via protective barriers, from contact with wild animals.” Id.

[16] Id.

[17] Id. Dominic Delorantis, Terrors from the OSHA: How SeaWorld’s Working Conditions Pose A Whale Of A Problem For Their Employees, The Ledger (Nov. 8, 2015, 9:40 PM),

[18] Lutz, supra note 11. In the D.C Circuit Court of Appeals, Judge Judith Rogers wrote that SeaWorld’s workplace and the unusual nature of the hazard to its employees performing with orcas, does not remove SeaWorld’s obligation to protect employees under the General Duty Clause. Id.

[19] Zoos: Pitiful Prisons, PETA, (last visited Oct. 2, 2016).

[20] Id.

[21] Health and Safety Executives, supra note 5, at 21.

[22] Zoos: An Idea Whose Time Has Come And Gone, supra note 9.

[23] The Humane Soc’y Of The U.S., Zoos: Working to Improve Zoo Conditions and Promote Natural Habitats,

[24] Bob Cesca, Human Ignorance and Narcississm Killed Harambe, As Well As Millions of Other Innocent Animals Every Day, The Daily Banter (May 31, 2016)

[25] Id.

[26] Health and Safety Executives, supra note 5, at 16.

NLRB & The Shift of “Protected” Employee Conduct into Social Media

By: Ryan McGinty

In the interest of the U.S. economy, the National Labor Relations Act (“NLRA”) was enacted by Congress over half a century ago with a mission to protect the rights of employers and employees.[1] Enforced by the National Labor Relations Board (“NLRB”), an independent federal agency,[2] section 7 of the Act empowers the NLRB to monitor union activity and provide that employee rights are protected.[3]

Increased technology and the realm of social media, a continuously moving target for the NLRB, have created a shift in protected concerted activity as union membership continues on a rapid decline.[4] As early as 2010, the NLRB began receiving charges related to employer social media policies and to specific instances of discipline for Facebook postings.[5] After investigations, the agency found reasonable cause to believe that some policies covering social media and disciplinary actions violated federal labor law while others did not.[6]

As it relates to union activity under section 7, it has already been ruled that employer email accounts are an acceptable platform to communicate about union-related activity and that union petitions can receive signatures electronically.[7] The social media issue differs though in that there are no past judgments or guidelines that have marked a legitimate line in terms of what is “protected” on social media. Results from the courts have been mixed relating to posts on personal social media accounts.[8] Who knows, maybe one day soon, just like with email accounts, employers and employees will effectively have personal and work accounts on all social media pages.

In the first 2011 report by acting General Counsel, Lafe Solomon, the issue at hand was addressed.[9] He found that in four cases involving Facebook posts, employees were engaging in “protected concerted activity” because they were discussing terms and conditions of employment protected under the benefits of unionizing.[10]  He moved on to find examples of cases involving Facebook and Twitter posts that were deemed unprotected speech.[11]  Another case suggested that a union acted unlawfully when it posted interviews with potential clients about their immigration status onto the public YouTube page and the Local Union’s Facebook account.[12]

In a second report which addressed employer policies, Lafe Solomon came to two main points concerning the NLRB and social media:

  1. “Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees”
  1. “An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees”[13]


In a more recent case, an employee’s activity on social media did not lose protection under section 7 of the NLRA for obscenities because it was ruled that the posts were made in an attempt to seek and provide mutual support to ignite group action preventing the disparagement of products and services. [14] In fact, in this case, the employer’s “Internet/Blogging” rule had violated section 8(a)(1) of NLRA[15] which makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in exercising their section 7 rights.[16]

As the issue continues to move forward, we might see a divided NLRB require that, instead of amending current rules, a whole new set of rules under the NLRA be created to adjust for a social media influenced twenty-first century.


[1] 29 U.S.C. §§ 151-169.

[2] Id.

[3] 29 U.S.C § 157.

[4] Hot Topics in Employment Law: What to Worry About in 2016, ERC (April 12, 2016)

[5] The NLRB and Social Media, Nat’l Lab. Rel. Board, available at (last visited Oct. 11, 2016).

[6] Id.

[7] Hot Topics in Employment Law: What to Worry About in 2016, supra note 4.


[9] The NLRB and Social Media, supra note 5.


[11] Id.

[12] Id.

[13] Id.

[14] Three D, LLC v. NLRB, 629 F App’x 33 (2d Cir 2015).

[15] Id.

[16] 29 U.S.C. § 157, 158 (a)(1).

Proposed Changes to Form 5500 Could be Costly

By: Taylor Napoli

The Employee Benefits Security Administration (“EBSA”), the Internal Revenue Service (“IRS”), and the Pension Benefit Guaranty Corporation (“PBGC”) have proposed changes to Form 5500 in an effort to improve the employee benefit plan reporting process.[1]  The changes would increase the reporting obligations of employers and could possibly eliminate some of the exemptions currently in place.[2]  These changes, if adopted, will likely go into effect in 2019, however, some changes may be enforced earlier.[3]

The Form 5500 Series is used to fulfill the annual reporting requirements provided under Title I and Title IV of Employee Retirement Income Security Act (“ERISA”) and the Internal Revenue Code.[4]  The overall purpose of Form 5500 is to protect the benefits and rights of employees under their benefit plans.[5]  The form is filed by the benefit plan sponsors and assures that the employees themselves have access to their plan information.[6]  The plans currently reported cover around one hundred forty-three million workers, dependents of plans, and retirees.[7]

The proposed changes will require much more information than has previously been asked for in order to “help plan sponsors, fiduciaries, and participants and beneficiaries better understand their plans and plan investments.”[8]  The proposed changes are predominantly to keep up with the changes of employee benefit plans and financial market developments.[9]  In proposing these changes, EBSA, IRS, and PBGC have five primary goals in mind: (1) modernize financial reporting; (2) provide more information regarding group health plans; (3) enhance data mining; (4) improve service provider fee information, and; (5) better comply with the Internal Revenue Code and ERISA.[10]

Currently, welfare plans with less than one-hundred participants are exempt from reporting requirements, but under the proposed changes, these small plans will have to begin filing reports.[11]  The reporting for employers with small plans will not be as in depth as employers with much larger plans, but the new rule would add the burden of reporting to millions of employers who, as it stands right now, are not required to report.[12]  Much of the new information being requested is not routine.[13]  If employers are not prepared to report this type of data, it could end up being very costly for them in the event that their plans are not in compliance.[14]  While they do have until 2019 until the majority of these proposed changes could possibly take effect, it is not something they can leave to the last minute.

Along with the proposed changes to Form 5500, EBSA also proposed related changes to its annual reporting regulations under Title I of ERISA.[15]  The only course of action that employers can currently take is to comment on the proposed regulations published in the Federal Register. The notice and comment period was originally scheduled to end on October 4, 2016.[16] However, due to the amount of written requests for additional time from stakeholders, the notice and comment period has been extended to December 5, 2016.[17]  The original deadline was just over a week before the deadline for filing the 2015 Form 5500, which stakeholders argued would make it difficult for those closely involved to provide an adequate evaluation of the proposed changes.[18]  Many commenters have also requested a public hearing at the close of the written comment period, but a date has not been set.[19]

[1] Proposed Revision of Annual Information Return/Reports, 81 Fed. Reg. 47533 (proposed July 21, 2016) (to be codified at 26 C.F.R. pt. 301, 29 C.F.R. pts. 2520 & 2590, 29 C.F.R. pt. 4065).

[2] Lisa Nagele-Piazza, DOL Proposes Major Overhaul to Form 5500 Reporting, Soc’y For Hum. Resource Mgmt. (July 25, 2016),

[3] Significant Changes Proposed for Form 5500, EBIA Weekly Newsletter (Thomas Reuters), July 21, 2016.

[4] Employee Benefits Security Administration, U.S. Dep’t Of Lab., (last visited Sept. 23, 2016).

[5] Id.

[6] Form 5500 Corner, Internal Revenue Serv., (last visited Sept. 23, 2016).

[7] Proposed Revision of Annual Information Return/Reports, supra note 1.

[8] United States Department of Labor, Fact Sheet on Proposal to Improve, Modernize the Form 5500 Annual Return/Report Filed by Employee Benefit Plans (July 11, 2016),

[9] Id.

[10] See Nagele-Piazza, supra note 2.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Press Release, U.S. Department of Labor, US Labor Department Releases Proposal to Improve, Modernize Form 5500 Annual Return/Report Filed by Employee Benefit Plans (July 11, 2016) (on file with U.S. Department of Labor).

[16] Employee Benefits Security Administration, supra note 4.

[17] Proposed Revision of Annual Information Return/Reports; Proposed Rule, 81 Fed. Reg. 65594 (proposed Sept. 23, 2016) (to be codified at 29 C.F.R. pts. 2520 & 2590).

[18] Id.

[19] Id.

The Rise of eSports: Labor Implications Involved in the Future of Riot Games and League of Legends.

By: Robert Pagan

The emergence of eSports throughout the world has brought numerous legal implications to light.  Almost overnight, individual eSports gamers have been elevated to the status of athletes, and the video games they play have become spectacles engaging enough to draw large audiences.[1]  How large of an audience are we talking about?  Well, according to ESPN, League of Legends viewership ratings in 2014 exceeded the viewership ratings of perennial U.S. sporting events such as the National Basketball Association (“NBA”) Finals and Game seven of the Major League Baseball World Series.[2]

In 2009, Riot Games launched the gaming platform known as League of Legends (“LoL”).[3]  LoL is a multiplayer online battle arena (“MOBA”) game, a relatively new gaming genre that has exploded in popularity over the past few years.[4]  In this genre, each player controls only one unit – the “hero.”[5]  Teams consist of five players competing against each other in a race to destroy the opposing team’s fortified structure at the opposite end of the map.[6]  This is very similar to other professional sports, especially basketball, where a group of five teammates (each with their own specific roles to fill) attempt to outscore the other team to claim victory.  The only two differences between the two sports are: 1) eSports has players interact virtually, with avatars taking the actions they command rather than themselves actually making the actions, unlike traditional sports where competitors are interacting physically with other competitors; and 2) eSports, unlike traditional sports, are developed and owned by individuals or single entities, not a collective set of organizations.

LoL is already the most popular PC game in the world and well on its way to becoming the most popular video game ever played.[7]  Last we heard, the game had twenty-seven million daily players, with sixty-seven million unique monthly users, making it far and away the biggest game in the world.[8]  Near the end of 2014, Microsoft[9] and Sony[10] each announced that they will launch eSports leagues.  If the recent popularity of eSports can cross into console-gaming—video-gaming that takes place on a console such as an Xbox or Playstation—that will open still another market for viewership.[11]

LoL has reached a mainstream level unimagined by developers of the game.  As its developer, Riot Games has seen an unanticipated increase in revenue across all platforms, including in-game purchases, merchandise, viewership revenue, and sponsorship.  Even Coca-Cola has entered the mix.[12]  Commenting on Coca-Cola’s recent partnership with LoL in an online article on The Daily Dot, Matt Wolf, Coca-Cola’s global head of gaming, said, “eSports is at a point now where the company feels like it’s time to move into the industry.  There are several signs that show that this is real it’s sustainable, and the growth is astronomical.”

But what does all this revenue mean for the players?  Professional LoL income comes mainly from streaming, sponsor endorsements, and  Riot.[13]  Whether a player is classified as an employee or independent contractor for their respective teams is a significant distinction, considering each classification has its own legal consequences.[14]

If a player is considered an employee, his or her status means that the teams that employ them must follow a wide array of statutory requirements, including but not limited to: (1) paying payroll taxes; (2) complying with minimum wage and overtime requirements; (3) providing meal periods and rest breaks; and (4) maintaining adequate workers’ compensation insurance.[15]

Alternatively, if a player is considered an independent contractor, none of these statutory requirements would need to be followed, and teams can forgo any of the responsibilities of an employer-employee relationship.

Presently, players sign contracts with their teams that determine salaries, player and team responsibilities, and a wide array of other issues.[16]  Player contracts must define the responsibilities of the players.  When those expectations are specifically outlined in a contract, there is less room for teams to place undue burdens on players or for players to claim that such expectations are unreasonable.[17]

The majority of issues faced by players and teams within the eSports community can all be solved through the creation of a collective bargaining agreement.  If collective bargaining were to exist, star players would have the potential to negotiate for higher salaries and more flexible contracts, and teams are similarly more likely to engage in additional negotiations with players that have a large impact on the team performance.[18]

Modern major sports are controlled by collective bargaining agreements struck between the owners in the form of the leagues and the players in the form of the players’ associations.[19]  A Players’ Association or some kind of representative system to help protect player interests and share information could improve this process.[20]  Creating successful compensation structures is crucial to the survival of professional eSports, as we know it.

[1] Stephen D. Fisher, The Rise of eSports: League of Legends Article Series Foster Pepper (Feb. 2014),

[2] Patrick Dorsey, ‘League of Legends’ ratings top NBA Finals, World Series clinchers, ESPN (Dec. 3, 2014),

[3] Fisher, supra note 1 at 1.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Paul Tassi, Monstrous Viewership Numbers Show ‘League of Legends’ is still eSports King, FORBES (Dec. 11, 2015),

[9] Eddie Makuch, Microsoft Announces Halo eSports League, GameSpot (Nov. 6, 2014),

[10] Vikki Blake, Sony Launches Esports League on Playstation 4, IGN (Oct. 15, 2014),

[11] Katherine E. Hollist, Time to Be Grown-Ups About Video Gaming: The Rising Esports Industry and the Need for Regulation, 57 Ariz. L. Rev. 823 (2015).

[12] Id.

[13] Stephen D. Fisher, Player Contracts: Defining Expectations to Avoid Conflict: League of Legends Article Series Foster Pepper (Aug. 2014),

[14] Bryce Blum & Stephen Fisher, E-Sports Law Article Series: Player Contracts; Defining Expectations to Avoid Conflict 1, (Aug. 2014),

[15] Id.

[16] Fisher, supra note 13 at 1.

[17] David Philip Graham, Player Contracts and Unions in the LCS, DPG at Law (Dec. 2013),

[18] Blum, supra note 14 at 2.

[19] Graham, supra note 17 at 5.

[20] Graham, supra note 17 at 5.

California Love: Farm Workers Engaging in “Back-Breaking Work” Get Long Over-due changes to Overtime Laws

By: Alex Reinauer

California Governor Jerry Brown signed legislation into law that would gradually bring overtime rules for farmers more in line with those of other industries.[1] Assembly Bill 1066 was passed by California lawmakers on September 12, 2016, and is expected to expand overtime pay for more than 825,000 agricultural workers.[2] Those workers, the Bill declares, “engage in back-breaking work every day.”[3]

Currently, a farmworker in California is required to work at least ten hours per day, or sixty hours per week, before qualifying for overtime pay.[4] The legislation provides a plan to phase-in the decrease in hours required to qualify for overtime pay.[5] Starting January 1, 2019, the hours per day required to qualify for overtime will decrease by one-half hour annually until reaching eight hours per day on January 1, 2022.[6] Within the same time frame, the hours per week required to qualify for overtime will decrease by five hours annually until reaching forty hours per week in 2022.[7] The plan to slowly phase-in the changes may have been included to deter any adverse effects incurred by agricultural employers.

Standards for overtime pay were first established in the Fair Labor Standards Act of 1938 (hereinafter “FLSA”),[8] but workers employed in agriculture were excluded from the federal act.[9] Congress considered amending the exclusion in 1966, but “[t]he continued exemptions arose from legislators’ fears of market collapse or other adverse reactions to suddenly forcing agricultural employers to comply with all FLSA regulations.”[10] The California Legislature exempted agricultural workers from earning overtime pay in 1941 and did not change their status until 1976, when the current hourly requirements were enacted.[11]

The exclusion of farm workers from earning overtime pay has largely been considered to be discriminatory. The agricultural exemption contained in the FLSA was considered by some to be “a form of discrimination against southern field workers, the majority of whom were black.”[12] Today, ninety percent of California farmworkers are Latino and eighty percent are immigrants.[13]

Opponents of Assembly Bill 1066 assert that the changes may end up harming farm workers, rather than helping them.[14] In order to avoid paying overtime, farmers are likely to hire more workers to work fewer hours.[15] Paul Wenger, president of the California Farm Bureau Federation, said that the measure will negatively affect farmers’ ability to “compete with products out of Mexico where farmworkers there make in a week what farmworkers here make in a day.”[16] Likewise, State Senator, Jim Nielson, claimed that the law would result in “loss in salary for workers and higher prices for consumers.”[17]

Supporters of the bill hope that the law will provide a model for other states that have overtime laws resembling those in California.[18]

[1] Christina Beck, California’s Agricultural Workers’ Overtime Law Victory Hailed as ‘Historic’, The Christian Science Monitor (Sept. 13, 2016),

[2] See Jazmine Ulloa & Sophia Bollag, California Farmworkers Could See Overtime Expanded in the Next Decade after Historic Assembly Vote, L.A. Times (Aug. 29, 2016, 3:37 PM),

[3] Assemb. B. 1066, 2015-2016 Assemb., Reg. Sess. (Cal. 2016),

[4] See Beck, supra note 1.

[5] Assemb. B. 1066.

[6] Id.

[7] Id.

[8] Jazmine Ulloa & John Myers, In Historic Move, Gov. Jerry Brown Expands Overtime Pay for California Farmworkers, L.A. Times (Sept. 12, 2016, 5:55 PM),

[9] 29 U.S.C § 213(b)(1)-(12).

[10] See Autumn L. Canny, Lost in a Loophole: The Fair Labor Standards Act’s Exemption of Agricultural Workers from Overtime Compensation Protection, 10 Drake J. Agric. L. 355, 366 (2005) (citing Patrick M. Anderson, The Agricultural Employee Exemption from the Fair Labor Standards Act of 1938, 12 Hamline L. Rev. 649, 662 (1989)).

[11] See Ulloa & Myers, supra note 7.

[12] See Canny, supra note 9, at 368.

[13] See Ulloa & Myers, supra note 7.

[14] Alejandro Lazo, California Farmworkers to Get Overtime Pay After 8 Hours Under New Law, Wall St. J. (Sept. 12, 2016, 8:27 PM),

[15] Id.

[16] See Ulloa & Myers, supra note 7.

[17] Id.

[18] See Beck, supra note 1.

Get Up, Stand Up…Stand Up for your Rights in the Front of the Store, says NLRB

By: Deborah Kick

At 6 a.m. on November 21, 2012, at a Walmart in Richmond, California, six employees stopped working and gathered at the “customer service area near the front of the store.”[1] Their purpose was to protest. Walmart issued disciplinary warnings to the six workers involved in the protest.[2] The National Labor Relations Board (hereinafter “NLRB”) said these warnings were “unlawful … discipline,” though it did concede that the protest caused some inconvenience for shoppers.[3] I agree with the NLRB’s ruling.

The employees at issue were specifically protesting against an “abusive” supervisor of the store, Art Van Riper.[4] The protest was largely the follow-up of a complaint letter sent by workers to management of the store. The letter discussed Van Riper, and additionally “demanded permanent jobs for temporary workers for a store remodeling project.”[5] The complaint about the Van Riper was in regards to him supposedly “placing a rope on a store counter” where a black employee was working and saying to the employee that he would like to “put the rope around your neck.”[6]

The protest, contained to the customer service area of the store, involved, as mentioned, six employees, but also included “non-employee protestors.”[7] The protestors conducted their protest, which included a banner which read “Stand Up, Live Better,, Our Walmart, Organization United for Respect at Walmart.”[8] The employees returned to work later that day, after having officially stopping working at 7 a.m.,[9] but the store “issued [the employees] with disciplinary coaching that could lead to their termination in the event of future infractions.”[10]
The NLRB, in a 2-1 decision, did not find the discipline appropriate. The administrative judge writing the decision, relying on a previous decision which outlined “a 10-factor test involving QuietFlex Manufacturing Co.”[11][12]  “found that the employee work stoppage was protected” under the National Labor Relations Act and “that [Walmart’s] discipline therefore violated Section 8(a)(1) of the Act.”[13] More specifically, the judge declared “the employees did not lose the protection of the Act because their protest was peaceful and largely confined to a small, partially enclosed customer waiting area near the front … and they promptly complied with directions to return to the customer waiting area or to clock out and leave the store.”[14] The dissenting judge felt the protest should have been held outside the store.[15]

On Wednesday, September 7, Walmart “filed a petition … with the D.C. Circuit” to appeal the decision.[16] Walmart “didn’t make any legal arguments in its one-page petition,” but will likely give substantive reasons for its appeal in mid-October, which is when “substantive documents … including the statement of issues to be raised, are … due.”[17] In a statement to Law360, a spokesperson for Walmart proclaimed the protest interfered with the “welcoming and comfortable store experience” that customers should have when shopping at Walmart.[18]

I believe the NLRB’s ruling was correct. The employees, containing their protest to a small portion of a “large, multi-story department store,”[19] did not terribly interfere with shoppers’ shopping experiences. Rather, they were peacefully and respectfully exercising their right to express an opinion on their supervisor’s behavior, and commenting on what should happen to temporary workers. From a legal standpoint, as their actions did not remove them from protected by the National Labor Relations Act, and on a more generally did not physically harm anyone or actually stop anyone from shopping in the store, there is nothing illegal about their actions. I am interested to see the results of the appeal.

[1] Mike Aldax, Labor board rules in favor of Walmart workers who protested inside Richmond store, Richmond Stand. (Sept. 7, 2016),

[2] Matthew Bultman, Wal-Mart Appeals NLRB Ruling On In-Store Protest, LAW360 (Sept. 9, 2016, 3:50 PM),

[3] See Aldax, supra note 2.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See Bultman, supra note 3.

[10] See Aldax, supra note 2.

[11] See Bultman, supra note 3.

[12] In Re Quietflex Mfg. Co., L.P., 344 N.L.R.B 1055, 1056–57 (2005).

[13] Wal-Mart Stores, Inc., 364 N.L.R.B. 118 (2016).

[14] Id.

[15] See Alpex, supra note 2.

[16] See Bultman, supra note 3.

[17] Id.

[18] Id.

[19] See 364 N.L.R.B. 118, supra note 14.