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Fitness Industry Update: Why Independent Contractors May Not “Nama-stay” That Way

Reading Time: 6 minutes

Contributed by our Partner

Written by Danielle Moss – 2020 BFS-NYC Panel Moderator

 

Recently passed and proposed employment laws relating to the classification of employees may significantly impact the fitness industry. Now more than ever in California, New York, and New Jersey, an employer’s misclassification of a fitness professional as an independent contractor (as opposed to employee) carries potential legal and financial consequences, such as unpaid wages and benefits, fines, penalties, and in extreme cases, being shut down.

As Proskauer’s Labor & Employment attorneys Danielle Moss, Phil Lebel and Jacob Tucker explain below, employee misclassification is even more complicated in the fitness industry, in which it is not uncommon for individuals to provide services to multiple businesses simultaneously.


Background

Towards the end of 2019, you may have noticed a glut of articles predicting the end of the “gig” economy. Headlines yelled: “California Just Dropped a Bomb on the Gig Economy – What’s Next?” and “All Eyes Are on California as Uber and Lyft Fight Labor Leaders to Determine the Future of the Gig Economy.” This alarm stemmed from California’s passage of Assembly Bill 5 – “AB5” for short – and its anticipated effect on companies that will now have greater difficulty classifying workers as independent contractors.

Although the primary focus of the law was to address concerns regarding the classification of ride-hailing app drivers, AB 5 and subsequent proposals in New York and New Jersey have far broader implications – including to employers in the fitness industry. Included below is a quick primer on the laws and some of the reasons why boutique fitness employers should consider undertaking a “wellness check” of their workforce classifications:


California’s “AB5”

Passed by the California Assembly in September 2019 and effective January 1, 2020, AB5 codified and expanded the reach of a three-part test for deciding whether a worker is an employee or an independent contractor under California wage and hour laws. Known as “the ABC Test” – assuming one of AB5’s exemptions doesn’t apply (in which case a different test would apply) – employers must satisfy each of the following requirements to properly classify someone as an independent contractor in California:

     A = the worker must be free from the control and direction of the company in connection with their performance of the work, both under the contract (as applicable) and in practice;
     B = the worker must perform work that is outside the usual course of the company’s business (in other words, there aren’t employees at the company who are performing the same or substantially similar tasks, or the services being performed by the worker aren’t part and parcel of the company’s business model); and
     C = the worker must customarily be engaged in an independently established trade, occupation, or business that is the same nature as the type of work performed for the company.

Unfortunately the idea that this test is as easy as “A, B, C” is misleading because it is a very fact-specific inquiry that must be conducted on an individualized basis, and is not a quick or easy checklist. Let’s walk through each component of the test that employers must carefully consider in evaluating each person they retain to perform any services, regardless of their job title or category:


Control and direction.
There are many things that an employer should look at in determining this factor, including but not limited to whether they control where the individual’s work is performed and when they are scheduled to work. Generally speaking, if an individual cannot come and go as they please and must report to a set location at a pre-scheduled time determined by the company, those factors suggest that they are not “free” from the control and direction of the company, weighing in favor of that person being an employee. Further, to the extent that the company provides detailed instructions about how the work is to be accomplished – leaving little discretion to the individual about the means of accomplishing the end result – this suggests employee classification is more appropriate.


Outside the usual course.
Taking a nightclub as an example: the essence of the business is to provide a party-like, music-filled atmosphere. The club DJ’s work – preparing and executing the playlist for partygoers’ enjoyment – may therefore not be considered “outside the usual course” of the business. On the other hand, if, for example, a boutique fitness owner were to hire a painter to create a special mural in their studio on a onetime basis for a set fee – that painting activity would most likely be considered “outside the usual course” of the fitness studio’s business and thus, weigh in favor of the painter being properly classified as a contractor. This requirement is often considered the most difficult for companies to meet.


Customarily engaged.
This requirement appears to limit independent contractors to those individuals who perform the same type of work outside of their relationship with the employer for other third parties or entities. For example, a licensed massage professional may routinely treat clients outside of, and in addition to, massages at an employer’s business. If this professional is not customarily engaged in independent work for others outside of the employer’s business, the professional will not be able to meet the “C” requirement and cannot be considered an independent contractor.

Obviously, these are just a few basic examples to attempt to provide texture to this new and untested law – but each case will depend on the unique facts and circumstances presented. Already, Uber, Postmates, and other companies and/or industry organizations have challenged AB5 in court and so whether (and to what extent) it will remain enforceable remains to be seen.  To date, at least one California federal judge has weighed in and denied Uber and Postmates’ request to block AB5.


Proposals in New York and New Jersey

Not to be outdone, other states have followed California’s lead. For example, while courts in New Jersey have been using the ABC Test for a while, New Jersey Governor Phil Murphy just signed five new misclassification bills into law on January 21, 2020. The proposed bills significantly increase punishments for misclassifying independent contractors in the state. Among these penalties are higher fines and the possibility of the government shutting down offending businesses – which are certainly matters of concern for any New Jersey based fitness boutique.

Meanwhile, New York Governor Andrew Cuomo recently compared the gig economy to sweat shops and publicly vowed to push for stronger employee misclassification regulations by May 1, 2020. Therefore, fitness boutiques in the Big Apple should keep their eyes peeled for these developments in the coming months.


What This All Means for the Fitness Industry

You may be thinking to yourself: “I don’t own a ride-share company or delivery service, so why should I care?” Even though those are the businesses currently grabbing the headlines, AB5 and similar laws in other states have the potential to seriously impact the way boutique fitness companies currently operate. Here’s why:


To Be or Not to Be an Independent Contractor – That is the Question, Regardless of Industry.
The legal risks associated with an employer’s misclassification of an independent contractor (whether it be drivers or greeters at a Pilates or Yoga studio) are staggering given the fact that employees are covered by a swath of federal and state laws and regulations that simply do not cover independent contractors. A boutique fitness owner’s threshold determination of whether to hire someone as an employee or to engage an independent contractor can be the difference between their adherence to overtime and minimum wage laws, withholding state and federal employment taxes, and having to offer certain benefits like retirement plans and health insurance versus not – and later being called to account for that failure over a span of several years (depending on the state they operate in). These are just a few examples of the types of claims that can be brought against a fitness boutique owner for alleged misclassification, and that’s not counting attorney’s fees, damages, penalties and other associated costs that may be assessed on top of these figures.


Even If You Aren’t Focusing On It Yet, Everyone Else Is.
The Internal Revenue Service has specifically scrutinized how fitness studios classify their workers to ensure compliance with tax laws and regulations, and at least one lawsuit has been filed in California against a spin studio alleging misclassification of fitness contractors under AB5. Achieving your 10,000 steps-a-day goal by walking to a courthouse or government agency may not be what you had in mind – and so you may prefer taking a closer look at your staff to ensure compliance with these laws now.


Boutique Fitness Companies Have Unique Issues.
While fast food restaurants may deem kiosk machines sufficient to place orders for food, you may not feel that a machine can provide your customers or members with the personal touch they’ve come to appreciate when they walk into your gym or studio. Only you can decide for your business whether you value having direction or control over your staff such that you are willing to potentially forego their independent contractor status; or whether you’re happy to permit contractors to work for you at their discretion contemporaneously with other fitness businesses without fear of theft of trade secrets or confidential material. Whatever you decide, if you haven’t already, it is time to start asking yourself these tough questions – especially whether your worker is performing work outside of your gym or studio’s usual course of business – in order to ensure that your goals, and the services provided by your workers, align with the laws.

Running a boutique fitness company is difficult enough without having to contend with a misclassification lawsuit or government investigation. Fortunately, so that you can continue to focus on the leg (or upper or lower body) work, we have extensive experience providing our clients with guidance and advice relating to these issues.

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Register for 2020 BFS-NYC and catch Danielle moderating the Will New 1099 (UBER) Laws, Rising Minimum Wage and Other Payroll Policy Changes Drive You Out Of Bus panel discussion.

Building a community, not a cult: How Peloton shapes its storytelling efforts

Reading Time: 4 minutes

Curated from PRWeek

March 28, 2018 by Diana Bradley

A few years ago, Carolyn Tisch Blodgett’s mother bought a Peloton, an indoor cycling bike that connects to the internet. “She loved it, and I didn’t understand what was so great about it,” Blodgett says.

Fast-forward to current day, Blodgett not only gets it, but it’s her job as Peloton’s SVP of brand marketing to make sure other people understand the bike’s appeal.

No one can truly grasp Peloton or its “community” until they are part of it, she explains. Some media outlets, such as The New York Times, have even intimated Peloton members are part of a cult.

“Cult’ has a negative connotation. It feels like you’re in or out and you don’t get it if you’re out,” Blodgett notes. “That doesn’t feel like Peloton. What makes it so incredible is the sense of community and the way members support each other.”

Blodgett explains that when choosing live classes, she picks out the ones her friends have taken already.

“That’s where community matters,” she says. “People have met their best friends through it, and they all ride live together at 6 a.m. That keeps them motivated.”

Once someone purchases a Peloton, they often acquire the mindset that anyone who doesn’t own one is “crazy,” and try to convince their friends to buy one.

“Our members sell more bikes than we do,” notes Blodgett. “They can speak authentically to how much they love it.”

Peloton launched in 2013 and was valued last year at $1.25 billion. Since Blodgett joined the company in early 2016, she has focused on creating awareness by telling the product story.

Peloton raked in nearly $400 million in sales last year, up from about $170 million in 2016. Blodgett notes the company is “effectively profitable, but has chosen to invest back in the business. Now we have spent a lot on advertising and marketing, people have heard about us. It’s about bringing that brand story to life in a way we haven’t before.”

Peloton’s ‘coming out party’

Blodgett was unable to share marketing investment, but notes the business is growing “extremely quickly” so it is “aggressively spending” on promotion to keep up with that growth.

One example was Peloton appearing in the opening ceremony of the 2018 Winter Olympics as part of a partnership with NBC.

“I thought of that as Peloton’s ‘coming out party,’” says Blodgett. At the Olympics, Peloton’s brand message was “Better is in us.” The brand is continuing to tell that story throughout the year. The inspiration for the tagline came from Peloton’s closed Facebook community, where users state over and over again that the product has changed their lives, notes Blodgett.

“On a daily basis, people posted they were having trouble with their toddler and Peloton gave them the patience to be able to deal with that, or they were going through a cancer treatment and Peloton is what kept them going,” she explains. “It is the message that Peloton makes you the best version of yourself.”

Blodgett is currently focused on sharing that message specifically with new parents, and telling them how Peloton fits into their lives.

“We know they are digital natives — they’re not using TV as much to consume their content and they spend a lot of time on social media researching,” she says.

Because of this, the brand is leaning heavily into digital and social to meet parents where they are and tell the Peloton story.

“If you used to go to boutique fitness classes all the time, which our core target did, but now you have a new baby and have to get a babysitter or think about exercising before they wake up, your life all of a sudden got really complicated,” she notes. “We want people to understand they can still have that boutique fitness experience, but you can now have it in the convenience of your own home.”

Because the Peloton bike has a hefty price tag of $1,995, Blodgett says part of her job is “doing the math for people” to show them that, in the long run, it’s cheaper than having a gym membership.

“A boutique fitness class is $35-$40 per class,” she explains. “If you and your partner are both doing that, you are going to make your money back in four to six months.”

Last fall, Peloton launched a financing program, giving consumers the ability to pay $97 per month for the bike with no money down and 0% APR.

The full experience

Peloton also has an iOS app that enables people to pay $12.99 per month for unlimited access to its live-streaming and on-demand classes. The brand isn’t worried about consumers opting for cheaper bikes and just using the app. Blodgett notes that, for people who are more price conscious, the app is great. However, they won’t get the full experience.

“When the instructor calls out a cadence or resistance number, you want to have that exact same number,” she explains. “And you want to see how you’re performing versus other people.”

Later this year, Peloton will start shipping its Tread product, which launched at CES in January. In the fall, the company will embark on a marketing campaign around the new treadmill product.

“While trial is important for the bike, we think it will be more important for the treadmill,” Blodgett says. “We want to get as many people as we can to try the product, because once they see how unique the treadmill is and the content and classes, that will sell itself.”

Peloton, which is currently only based in the U.S., has plans to expand into another country, but Blodgett could not comment further. The company works with ID-PR.

When Blodgett’s Peloton first arrived at her home, her 3-year-old daughter was immediately interested, and began trying to climb her way to the seat. As a distraction tactic, she got her own mini-version of the bike for Hanukkah.

“I got her a Fisher-Price knockoff Peloton bike for kids,” she says. “It’s a stationary bike that uses an [exercise] app I download.”

While Blodgett takes 30-minute classes two to three times per week, her daughter is by her side the whole time doing her own “classes.”

“At first we thought it was a little joke, but now she is so into it,” she says.