Blocking the Finish Line: Does the FLSA Exemption for Amusement and Recreational Establishments Apply to Marathons?

09 February 2015 Labor & Employment Law Perspectives Blog

Several years ago, at one of the numerous race events that have become immensely popular in the last handful of years, a race “volunteer” provided a bike escort, so that the elite runners at a half-marathon race in St. Louis could safely proceed to the finish line. The woman, as well as the other 1,000+ volunteers that day, were not compensated for their efforts by the for-profit race organizer that runs numerous similar events across the country. Nearly two years later, the volunteer filed a proposed class action against the race organizer, alleging violations under the Fair Labor Standards Act (FLSA) — among other claims — for failure to pay minimum wage.

The race organizer recently moved to dismiss the case, claiming that sporting events and races, like marathons, fall under an exemption to the FLSA for amusement or recreational establishments. 29 U.S.C. § 213(a)(3)(A). In order to qualify for this exemption, even organizers must show that their events are:

  1. “Amusement or recreational”
  2. Separate establishments
  3. Operating for seven or less months per year

There is no case law discussing whether the exemption applies to events similar to the one at issue in the recently filed class action lawsuit. The exemption has, however, been applied to baseball games and automobile racetracks. For example, in a case heavily relied upon by the race organizer in its pending motion to dismiss, Chen v. Major League Baseball, volunteers of Major League Baseball’s (MLB) All-Star Fan Fest alleged that they were owed minimum wages under FLSA. The court in the MLB case found that the Fan Fest volunteers were exempt because baseball events are for amusement or recreation, and because the event was a separate establishment that “took place at a discrete location over a discrete period in time.”

While the “volunteer” in the recently filed class action case still has many more hurdles to cross (including this motion and the class certification stage), the outcome of the lawsuit has the potential to have a wide-ranging impact on the recreational racing industry. Many of the major players in the race event industry are run as for-profit corporations, and therefore, subject to the FLSA’s minimum wage requirements. As those who have competed in these races well know, the large events require significant volunteer assistance in order for the races to be run safely, or at all. If these corporations are forced to pay the volunteers, the cost to put on a race will drastically increase, possibly leading to raised entry fees and less support for the athletes. Ultimately, the future of the recreational racing industry (at least the version that we know today) could hinge on the outcome of this lawsuit, and the potential that many others could surely follow if this one is successful. Stay tuned.

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