Amid all the hubbub in the legislature last session over school funding and transportation spending, lawmakers also passed a bill that, in effect, exempts Western Hockey League players from state child labor and minimum wage laws.
Shortly after that, the Department of Labor and Industries closed a lengthy investigation into the hockey league without taking any action, a move that is troubling to Mary Miller, who was a child labor specialist with the department for more than a decade before she left last year.
Two years ago, Miller received the complaint about the hockey league when she worked for Labor and Industries. A Canadian man who had been involved with an effort to unionize the players said the teams in Washington state were not paying players the minimum wage and were not following state restrictions on how much kids can work.
The teams, which include the Everett Silvertips and the Seattle Thunderbirds, are for-profit businesses. The players generally range from age 16 to 20.
“I immediately thought that we would consider them to be employees because they were working for for-profit teams,” Miller said.
Teams' Perspective
The teams vehemently disagreed.
"The players are in the same position as other amateur athletes playing in elite leagues on their high school teams or in the NCAA," according to a letter written to the department by Barry Alan Johnsrud, an attorney for the Washington teams. "They are not employees. Moreover, the players and their families know that they are making an agreement to play amateur hockey at the highest level of competition without becoming professional hockey players."
The players earn scholarships to use after they leave the league, as long as they don’t join a professional hockey team. Some go to high school while they’re playing, and others have graduated and just play hockey.
But Miller and another state investigator were not convinced. They said because the teams are for profit, the players probably should be considered employees subject to state labor laws.
At the same time the department was pursuing this investigation, state lawmakers introduced a bill to make clear the players don’t fall under state minimum wage and child labor laws. After the governor signed it, the department shut down its investigation saying the legislators had clarified the law.
But Miller asks, why did the Department of Labor and Industries apply the law retroactively?
“I would like to know why they were using a statute that changed in July of 2015 to apply to a decision on a complaint that began a year and a half before that,” Miller said.
Explanation From Labor and Industries
Liz Smith is assistant director of fraud prevention and labor standards at the Department of Labor and Industries. She says this was a complex investigation.
“L& I investigators spent significant time looking at the matter to really understand and make a determination if it was something that was potentially subject to our laws,” she said.
Smith says the department did not cave to political pressure when it closed its investigation, declaring that there were no findings.
Instead, she says the bill helped the department understand “legislative intent.” That means lawmakers don’t think the hockey players are employees, so the department used that as guidance.
“The clarification that was provided was a meaningful clarification for us to help us resolve how the legislature saw the law applying in this circumstance,” Smith said.
Clarification?
The legislation exempting hockey players from the minimum wage and child labor protections explicitly says it’s a "clarification."
That word signals that the players were always exempted – this just spells that out.
But attorney David Mark with the Washington Wage Claim Project says he doesn’t buy it.
“Oftentimes when the law is clarified, it’s applied retroactively,” he said. “I don’t believe this was a clarification, though. This was out of whole cloth. It’s changing the law as it had been written.”
Mark says it would be up to a judge to decide if this really qualifies as a clarification.
Mary Miller spent more than a decade working on child labor cases during her time at the Department of Labor and Industries. She says departments like that provide an important voice for kids who don’t have the same rights as adults.
“Until someone turns 18, they really actually are considered children or adolescents. They don’t have the ability to act on their behalf in the same way – they can’t vote, so they’re not a constituency,” Miller said. “So it’s incumbent on responsible adults to act on their behalf.”
`A Little Disturbing'
Miller says she’s dismayed by how quickly the laws were changed just for this group of kids who play hockey.
“To create an exemption that only applies to one specific group of teams, one particular sport, one set of employers, is a little disturbing,” she said.
Still, this was not done in secret. There were public hearings on the bills in both the state House and Senate. Most lawmakers voted in favor.
Meanwhile in Canada, the Western Hockey League – including the Washington teams – is being sued for allegedly breaking minimum wage law. The league says it’s vigorously defending itself.
