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As A Seasonal Employee, Can I Be Paid Less Than Minimum Wage And No Overtime? I Need A Lawyer!

On Behalf of | Sep 7, 2015 | Wage: Minimum Wage, Wage: Overtime |

Best Ohio Minimum Wage Lawyer and Top Overtime Attorney Answers: Can my employer refuse to pay me overtime if I work at a summer camp? Do workers at a water park have to be paid minimum wage? Shouldn’t a lifeguard be paid overtime?

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As the summer comes to a close, we take a look back on the summer that was. As I am sitting here watching the Cleveland Indians beat the Detriot Tigers, my thoughts turn to the fact that Justin Verlander stunk and then, well maybe not so much. He makes $28 million a year – so this is clearly not an employment law blog about him not making minimum wage.  For the first half of the 2015 season, Detroit’s former ace was completely unavailable for 75 percent of the work that he’s been paid to perform. 81 games into the season, Verlander was making just his fourth start of the year and his ERA had climbed to almost 7. In the locker room after another implosion, Verlander told the local reporters for the umpteenth time how he thinks he’s figuring it out and how he just needs to make a few adjustments to his mechanics.

Last season, a relatively healthy Verlander played slightly better than what could be expected of a random triple-A player. This season, Kyle Ryan, a triple-A pitcher who the Tigers took with the 373rd pick in the 2010 draft, had significantly outperformed Verlander in the four games this year that Ryan’s been tapped to start for the big club.

Ryan overcame long odds to make those four starts. Every year, Major League Baseball drafts a touch over 1,200 hopeful amateurs. Of the players drafted, approximately 10 percent can expect to play at least one big league game during their professional careers.  A player drafted in the first two rounds has a little better than a coin flip’s chance of making the Majors, while a player drafted in the twelfth round, like Ryan, has better odds of drawing to an inside straight. Ryan will make $507,500 this season, Major League’s minimum salary. Verlander will earn almost triple that amount each and every start.

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While Ryan would likely prefer Verlander’s $28 million, not to mention dating Kate Upton, half a million dollars a year to play baseball, to do any job, really, is nothing to sneeze at. Unlike Ryan, the vast majority of players drafted 2010 are still bouncing around the minors, making as little as $1,100 a month and only earning that amount during the actual season, three to five months, depending on what minor league level the player is at. Once drafted, and for the next seven seasons, a player can only play for the organization that drafted him. While phenoms like Stephen Strasburg make headlines, signing high seven-figure bonuses when they are drafted, many draft picks in the lower rounds sign for bonuses as little as $5,000.

In Senne v. MLB, a number of former minor league baseball players have filed a wage theft complaint alleging that Major League Baseball and its minor leagues have violated Fair Labor Standards Act (“FLSA“) and a number of state wage laws. As our wage and hour attorneys

have previously blogged about, the FLSA requires that covered, non-exempt employees be paid at a rate of at least $7.25 an hour, plus time and one-half their regular hourly rates for all hours worked beyond forty per workweek. (See Can I Sue My Boss Individually For Not Paying Me For Overtime? I Need A Wage Lawyer!; Top Wage and Hour Lawyer Reply: As A Salaried Employee, Am I Exempt From Overtime Pay?; Should I Be Paid Overtime Even If I Have The Title Manger? Top Ohio Wage and Hour Lawyer Reply; Overtime Trick: What Should I Do If My Boss Says I Work For Two Companies?; and As an Assistant Manager Should I Get Overtime Pay? I Need A Lawyer!).

Minor leaguers, 90 percent of whom will never advance beyond the minors, are expected to work 60-70 hours a week during the season, participating in mandatory workouts, drills, and batting practice, in addition to playing 6 or 7 games per week, half of which are on the road and involve extensive travel. During the offseason, minor leaguers are expected to stay in shape and many are required to participate in Winter instructional leagues and Spring Training for no pay at all. Many minor leaguers do all of this for $7,500 or so a year. They are given no overtime pay and, arguably, aren’t even being paid minimum wage.

According to Senne, minor leaguers work year-round without the benefit of overtime, minimum wage, the right to negotiate their salaries, or even the right to choose their employers.  Of the suit, Garret Broshius, a former minor leaguer and now attorney, who helped build the case, said, “No one is saying that minor leaguers should be getting rich, but if McDonald’s and Wal-Mart can pay a minimum wage, then Major League Baseball can too.”

MLB contends that minor league baseball is a seasonal amusement and, as such, the players are exempt under 29 U.S.C. § 213(a)(3), which excludes from the FLSA’s overtime and minimum wage protections the employees of certain amusement or recreational establishments that don’t operate on a year-round basis. Section 13(a)(3) of the FLSA provides an exemption from minimum wage and overtime requirements for any employee employed by an establishment that is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center that either “does not operate for more than seven months in any calendar year,” 29 U.S.C. § 213(a)(3)(A), or, “during the preceding calendar year,” has “average receipts for any six months of such year [of] not more than 33 1/3 per centum of its average receipts for the other six months of such year.” Id. § 213(a)(3)(B). (See Can Amusement Park Workers Be Paid Less Than Minimum Wage? I Need The Best Wage Lawyer!; and Top Wage and Hour Lawyer Response: Is Everyone Entitled To Earn Minimum Wage?).

The seasonal employee exemption has been addressed in other cases involving baseball, with inconsistent results. In Adams v. Detroit Tigers, the United States District Court for the Eastern Michigan District held that batboys were not entitled to overtime or minimum wage because of the seasonal exemption. In Bridewell v. Cincinnati Reds, the Sixth Circuit Court of Appeals (Ohio) reached a different conclusion, finding that the Reds operated year-round and could not rely on the seasonal exemption in a wage suit brought by ballpark maintenance workers.

MLB is also defending on the basis that many of the hours that the minor league players are claiming as time spent working is not properly compensable. According to the MLB, at least some of the work that the players put in is a mixture of employment and personal advancement. Time spent engaged in workouts, batting practice, bullpen sessions, and travel, MLB contends, is analogous to the time that an intern spends training and is not covered work under the FLSA and state wage laws. Given that much of the player’s training is supervised and a condition of their employment, that argument isn’t likely to carry the day.

Like the majority of lawsuits, Senne will probably settle out of court. The FLSA provides that a successful plaintiff may recover liquidated damages, in addition to back pay, as well as attorney fees and the costs of litigation. Because Senne is a collective action brought on behalf of a rather large class, MLB is not likely to risk going to trial.

Now, let’s turn back to Verlander and Ryan. Verlander’s current ERA is 3.43 after giving up three runs and losing to the Cleveland Indians yesterday, while Ryan’s ERA is 5.92. From an employment law lawyer’s perspective, this is a reminder to give employees the chance to work through some problems or issues before rushing to judgment. Of course, the Tigers still stink.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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