The controversy surrounding independent contractor status, i.e. who is and who is not, has invaded every industry, with myriad lawsuits to evidence that premise.  Well, now this issue has hit the storied National Football League.  A number of former NFL security workers have sued the NFL, alleging that they were misclassified as independent contractors to avoid paying them overtime.  The case is entitled Foran et. al. v. The National Football League Inc. and was filed in federal court in the Southern District of New York.

The six workers allege that they were supervised as employees and were required to obey a number of employee rules.  These individuals were licensed private investigators.  They checked stadium security measures before games, gave security advice and performed background checks, as well as conducting investigations.  Although they signed “consulting agreements” making them supposed independent contractors, they claim they were, in fact, employees.

The plaintiffs contend that NFL policy controlled the manner in which they conducted their investigations, including the identity of witnesses to speak to and, incredibly, the questions they were to ask.  There was also a required dress code for game days.  Significantly, the workers claim they were not only bound by NFL conduct rules, but they could also request expense reimbursement, which under any construct, is a sign of employee status.  They claimed, in short, that they did “not have autonomy in the means and methods of performing their work.”

It seems that these jobs are very much prized by former law enforcement officers.  Indeed, the NFL received in excess of 2,000 applications for a few dozen or so jobs.  As the plaintiffs’ asserted, “for these reasons, the NFL was in a position to present plaintiff security representatives with a take-it-or-leave-it contract providing that they would be treated as independent contractors rather than as the employees they actually were.”

The Takeaway

Although these engagements are highly sought after, that, by itself, does not mean that the workers are true independent contractors, especially if they perform these services for no other entity.  They claim they worked long hours, most weeks, so there likely is liability here and a warning for the NFL, as it may be well advised not to treat these people as independent contractors going forward.

The statutory tests still apply, no matter how glamorous or important the gig…

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