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., http://dllr.state.md.us/labor/ wagepay/wpotgenl.shtml (last visited Oct. 12, 2016).

[5] Maryland Minimum Wage and Overtime Law, Dep’t of Lab., Licensing, and Reg., http://dllr.state.md.us/labor/ 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), http://www.law360.com/articles/847488/2nd-circ-finds-orioles-concession-provider-exempt-from-ot.

[10] Daniel Wiessner, Baseball Concession Workers Exempt From Overtime Pay – 2nd Circuit, Reuters (Oct. 4, 2016, 6:45 AM), http://www.reuters.com/article/employment-concessions-idUSL2N1CA0BY.

[11] Joanna Szabo, Orioles Concession Workers File Unpaid Overtime Class Action Lawsuit, Top Class Actions (Apr. 19, 2016) https://topclassactions.com/lawsuit-settlements/employment-labor/332969-orioles-concessions-workers-file-unpaid-overtime-class-action-lawsuit/.

[12] Id.

[13] Wiessner, supra note 10.

[14] Id.

[15] Id.