Rock ‘n’ Roll Might NOT Be Here to Stay Thanks to the FLSA

Last October, Outside magazine reported that Saint Louis University School of Law professor Yvette Joy Liebesman had filed a lawsuit against Competitor Group, the San Diego-based company that runs the well-known Rock ‘n’ Roll Marathon series. The basis of her suit is that Competitor Group (“CGI”) owes its race volunteers wages under the Fair Labor Standards Act (FLSA) because they are really not volunteers, but rather employees.

Ms. Liebesman “signed up to serve as a bicycle escort for the lead group of female halfmarathoners,” according to her Complaint. As a bicycle escort she was required to provide a bicycle (shocker!), a cell phone (“to report any problems and the progress of the faster runners”), and a hands-free device for her cell phone. This, Liebesman claims, also violates the FLSA because she, rather than CGI, had to pay “for equipment that was necessary to carry out duties assigned by Defendant.”

CGI responded by issuing a statement calling the allegations “baseless” (another shocker!) and then filing a motion to dismiss the class action suit. On May 11, 2015, Judge Ronnie L. White of the United States District Court for the Eastern District of Missouri ruled on CGI’s motion.

His ruling (found here) will allow Liebesman’s case against CGI to proceed. That’s not to say that the class action will necessarily be successful in requiring CGI to pay all of its volunteers at least minimum wage, however. CGI argued both that its activities fall under an exception to the FLSA minimum wage requirements and that their volunteers really are volunteers and not employees.

First, claims CGI, they should fall under the exception to the FLSA that applies to “amusement or recreational establishment[s].” Liebeseman disputed that claim, but the Court held that the record before it was “not developed as to whether the ‘principal activity’ of the series was for amusement and recreation.” CGI also contends that because each race is a separate establishment that operates for only a certain amount of time, the exception applies because no race operates for more than seven months of the year. Again, however, pointing to the lack of a factual record, the Court did not decide that question of law and would dismiss the case based on the FLSA exception for recreational or amusement establishments.

CGI also asked the Court to dismiss the Complaint because Liebesman was not an employee under the definitions of the FLSA: she “volunteered only twice in two years [and] had no expectation of future employment with CGI.” Liebesman countered that the Court should apply the “economic reality” test and find that she is an employee. Once again falling back on the lack of discovery, the Court declined “to hold as a matter of law that Liebesman was not an employee of CGI.”

CGI can still move for summary judgment after the factual record has been developed, but it’s often the case with class action suits that the real battle is fought in the earlier stages. It seems to me that because Competitor Group’s entire business model centers around a multi-race series with thousands of race workers, having to pay them wages would either force them out of business altogether or require major restructuring. I can’t say whether the RnR series will decide that this is the hill that they want to die on, but, in the end, the choice might have already been made for them.

The other question that this case raises is what it means for the future of big road races. As an example, for good or for ill, when you step into a McDonald’s in Alabama you know you’re going to get pretty much the same thing if you normally go to McDonald’s in Idaho. The Rock ‘n’ Roll series, in much the same way, brings a known product to runners around the country.  I guess that makes RnR somewhat like the chain restaurants of road racing.

My first ever half marathon was at the 2012 Rock ‘n’  Roll Half Marathon in Virginia Beach. I can’t say that that was the best race I’ve ever run, but nevertheless, it was fun for what it was and getting to do a big race with my friends and with lots of other runners was enjoyable. For those of us in the middle and back of the pack, isn’t that what running is supposed to be about? If some folks are drawn to big productions like Rock ‘n’ Roll and they happen to turn running into a lifelong hobby along the way, I can’t see how that’s a bad thing. Who knows whether CGI will have to close up shop, but if they do I think that will be a net negative for the sport.

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