Pregnant Workers Fairness Act Passes West Virginia Senate and Awaits Governor's Signature

by Alex Greenberg

On March 6, 2014, the West Virginia Senate passed the Pregnant Workers Fairness Act (“PFWA”). Now that the bill has been passed by both the House and the Senate, it will move on to the desk of the Governor. If the Governor signs the bill, which is expected, then the PWFA will become law.

Once signed into law, the PWFA will ensure that current protections against employer discrimination will extend to pregnant workers. The PWFA allows employees to request modified duties and other accommodations from employers, so long as the accommodations do not place undue hardship on employers.

Consider a situation where a pregnant employee occasionally has some duties that require heavy lifting but the employee has been advised by her health care provider to not lift more than twenty pounds. Under the PFWA, an employer should temporarily reassign these heavy lifting duties to another employee, so long as this reassignment does not cause undue hardship to the employer’s business.

Once the PFWA becomes law, pregnant employees will be able to file complaints against employers through the West Virginia Human Rights Commission and the Commission may then investigate the pregnant workers’ claims. Employers should also be aware that the PFWA makes it improper to deny employment opportunities to job applicants out of concern that the applicant may ask the employer to make some adjustments due to a pregnancy.

NFL Cheerleaders Claim Teams Violate Minimum Wage Laws

by Alex Greenberg

Ben-Gals v. Bengals. Raiderettes v. Raiders. 

While the cheerleaders might not compete well against their NFL teams on the football field, in the courtroom the outcome could be much different.

Two lawsuits have been filed in 2014 alleging that cheerleaders for the Cincinnati Bengals and Oakland Raiders are compensated at an amount that is far less than minimum wage. The Plaintiffs in these lawsuits allege that cheerleaders are only paid for appearing at games, despite the fact that the cheerleaders spend countless other hours attending mandatory functions.

The Ben-Gals Plaintiff alleges that she spent over 300 hours last season performing at games, practicing with her squad, participating in photo shoots, and attending charity or promotional events. Although attendance at practice and other events was mandatory, the cheerleader alleges that she was only paid for game day performances at a rate of $90 per game. The Plaintiff had to miss one game last season to attend a funeral and she was not paid for that week, despite having attended the mandatory practices earlier in the week.

Under the Fair Labor Standards Act, time spent attending mandatory training programs (i.e., practices) or other work-related activities (i.e., promotional events or photo shoots) constitutes “working time” in which minimum wage and overtime requirement apply. In 2013, the minimum wage in Ohio was $7.85 an hour.

Here, although the total amount of time spent added up to be over 300 hours, Plaintiff alleges she was only paid $855 for the entire season, which is approximately $2.85/hour. This seems especially egregious considering a 2003 Forbes Magazine article estimated that an average NFL cheerleading squad generates approximately $1 million dollars a season for its respective team. Also, the cheerleaders claim that NFL mascots earn up to $65,000 year.

The Ben-Gals Plaintiff also alleges that the cheerleaders are led to believe that they will earn extra cash through paid appearances. However, Plaintiff claims she made many appearances last season and she was only paid on one occasion—at a “charity rate” of $75.00. The cheerleaders even have to provide their own transportation to such events, some of which are several hours away.

The amount of pay given to NFL cheerleaders is a concern for many teams, but not all. The Seattle Seahawks were the Super Bowl Champions for the 2013-2014 season and the organization’s website states that it compensates their cheerleaders, the Sea-Gals, at “an hourly wage and any applicable overtime required by law, for all hours worked.” Although having well-paid cheerleaders probably did not help the Seahawks win the Super Bowl, it did keep the organization out of the courtroom during the off-season.

West Virginia Passes Bill Requiring Reasonable Accommodations for Pregnant Workers

by Alex Greenberg

West Virginia is the latest state to join in a movement of strengthening the protections afforded to pregnant workers. On February 5, 2014, the West Virginia House of Delegates unanimously passed House Bill 4284, also known as the Pregnant Workers Fairness Act (“PWFA”). The purpose of the PWFA is to ensure that current protections against employer discrimination extend to pregnant workers, including the right to reasonable accommodations so that a soon-to-be mother can work through her pregnancy.

The PWFA will move on for a vote in the West Virginia Senate. A United States Census Bureau study found that more than 62% of women who had a child in 2012 were in the labor force. Thus, if the PWFA is signed into law, the requirements will affect many employers.

The PWFA makes it clear that employers must provide reasonable accommodations for workers’ limitations that arise from pregnancy, childbirth and related medical conditions unless the employer can prove that such accommodations would put an “undue hardship” on the operation of the business. Additionally, under the proposed law, an employer cannot deny employment opportunities to a job applicant or a current employee based on a refusal to make such accommodations.

Some female employees can work through a pregnancy with few, if any, changes in their job. However, other women may find that certain job functions pose a challenge during a pregnancy. This is especially true in physically demanding jobs or jobs that are traditionally held by men. Often times, these women could continue to work if employers allowed for simple accommodations or slight job modifications. Consider a pregnant cashier at a grocery store who is having trouble standing up all day—perhaps all the employer needs to do is provide a stool and allow the employee to sit instead of stand.

Supporters of the PWFA point out that many pregnant women cannot financially afford to stop working and when they are denied reasonable accommodations, they have no choice but to continue under unhealthy conditions or against their health care provider’s advice. Advocates believe women are putting their own at health at risk, along with the health of their baby. The goal of the PWFA is to ensure that pregnant women can continue to work in a manner that is safe for their pregnancy.