By Bennett Loudon
BridgeTower Media Newswires
ROCHESTER — A class-action wage theft lawsuit filed by cheerleaders for the Buffalo Bills football team will move forward, thanks to a recent decision by the Appellate Division of state Supreme Court.
The Fourth Department affirmed a June 2016 decision by state Supreme Court Justice Timothy J. Drury to certify the class-action complaint originally filed in April 2014.
“We conclude that Supreme Court properly granted the motion and certified the class,” the Fourth Department panel wrote in the decision.
The class action could include as many as 134 women.
The defendants in the case are the National Football League; the Buffalo Bills; Cumulus Radio Co. (formerly known as Citadel Broadcasting), which managed the Jills; Stephanie Mateczun; and Stejon Productions Corp.
Mateczun, president and CEO of Stejon, managed the Jills.
The Jills performed at Bills games and participated in charity and promotional events in the community.
The named plaintiffs in the class-action suit are Caitlin Ferrari, and three other women identified as Alyssa U., Maria P., and Melissa M. They all were members of the Jills for various periods between 2009 and 2014.
The plaintiffs are seeking hundreds of hours of wages not paid because they were misclassified as independent contractors rather than employees.
According to the complaint, the cheerleaders were required to model for a swimsuit calendar and to sell copies of the calendar, without being paid.
They also were required to sell tickets to an annual golf tournament, instruct young girls at a cheerleading camp, and attend several promotional events for the Buffalo Bills.
The suit claims the cheerleaders were paid for some of the promotional events, but not for anything else. Their contracts label them as independent contractors and state that they would be paid on a “per-appearance” basis, but not for appearing or performing at Buffalo Bills football games.
The Jills were required to abide by a rigid code of conduct setting standards for their personal conduct, dress, and physique, and which gave the Buffalo Bills the right to use or republish their photos for advertising purposes.
Records from the 2012-2013 season relating to five members of the Buffalo Jills, which records were obtained through discovery, show that one Jill, who is not a party to the suit, worked 360.5 hours during that season and was paid for only 17.5 hours. Another Jill worked 372.75 hours and was paid for 16 hours, according to court papers.
Alyssa U. worked 369 hours and was paid for 13 hours, while Maria P. worked 368.5 hours and was paid for five hours, according to the suit. Melissa M. worked 383 hours and was paid for nine hours, according to court filings. None of the five cheerleaders were paid on average more than $2.60 per hour.
Two individuals, identified only as Jaclyn S. and Gina B., have filed a separate lawsuit making similar claims. The Fourth Department ruled that their separate suit was appropriate because they worked for the Buffalo Jills for a longer period of time, making more personal appearances, which would entitle them to “damages several times greater than the damages sought by other class members.”
One of the plaintiff’s attorneys, Christopher Marlborough, said lawyers for the class-action suit and the individual lawsuit are working together.
Drury has issued a ruling that Cumulus, Stejon and Stephanie Mateczun were the plaintiff’s employers and the plaintiffs were misclassified as independent contractors rather than employees.
The judge has not ruled on whether the Buffalo Bills were the Jills’ employer and the NFL’s possible involvement in the misclassification has to be adjudicated, Marlborough said.
Marlborough said the total amount potentially owed to the cheerleaders depends on what pay rate the judge decides they are entitled to.
“What the hourly rate is going to be very important, but I think the amount of hours that people worked was pretty extraordinary given the fact that they were not treated like people who were working for wages,” said Marlborough, who is based in Suffolk County.
Attorneys for the defendants did not respond to a request for comment.
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