Four U.S. Open umpires have filed a lawsuit claiming that the U.S. Tennis Association (“USTA”) failed to pay them overtime during the three week tournament in violation of federal and state law.   The Umpires allege that they regularly work more than 40 hours in a week during the tournament, but do not receive overtime pay because the USTA misclassified them as independent contractors.  The Umpires claim that the USTA pays them a daily rate based upon each umpire’s certification level and the type of match worked. The lawsuit further alleges that approximately 300 umpires work the U.S. Open each year.  The case is entitled Meyer et al. v. United States Tennis Association and was filed in the Southern District of New York.

The Umpires argue that they are employees, not independent contractors, because they do not make their own schedules, the USTA sets their pay without any negotiation, they have no chance to make or lose money in connection with their duties, and they are not allowed to work for another company while working at the tournament. As discussed in previous blog entries, the courts review the totality of the circumstances in determining employee status.  In particular, the courts consider the following : (1) degree of control; (2) investment in facilities; (3) opportunity for profit and loss; (4) permanency of the relationship; and (5) required skill.  Degree of control is generally considered to be the key factor in making this determination.

This case is unique because the above-mentioned factors do not appear appropriate in analyzing whether an employment relationship exists here.  While in certain instances the courts have held seasonal or short term workers to be employees, an agreement to only work three weeks in a year seems to suggest an independent contractor relationship.  For instance, even if the USTA sets the hours for the Umpires during the three week tournament, for the other 49 weeks of the year, the USTA does not maintain any control over the Umpires.  Additionally, its questionable whether the USTA truly sets the hours for the Umpires as they allege.  It would seem more likely that the Umpires’ schedules are dictated by the scheduling of the matches.

This may be one of the rare instances where an employer can establish that workers are independent contractors rather than employees.  Based on the allegations in the complaint, this case could very well hinge on whether the court focuses on the degree of permanency of the work relationship, rather than the degree of control.