Benefits and Compensation, EntertainHR

Wilson et al. v. The Avengers as Successor to Strategic Homeland Intervention, Enforcement, and Logistics Division

I have two teenage sons, so I’ve watched all that the Marvel Cinematic Universe has to offer. (“Sure, blame it on the kids, dork.” “Shut up, Internal Monologue—this doesn’t concern you.”) This spring, Marvel rolled out its latest offering, The Falcon and the Winter Soldier, featuring Falcon (“Sam Wilson,” played by Anthony Mackie) and Bucky Barnes (formerly the Winter Soldier, played by Sebastian Stan). The series shows the title characters making their way in a somewhat “normal” existence following the very abnormal heroics depicted in Avengers Endgame. On top of that, they struggle with how or even whether to fill the void left by Captain America after Steve Rogers exited the stage 70 years ago.

Soure: AFM Visuals / shutterstock

An early episode touched on a topic that created a little buzz. The Marvel movies are fantasy after all, and the suspension of disbelief lets us forget about the more pedestrian aspects of the heroes’ daily lives, like paying bills or buying groceries. Well, it just so happens that Sam Wilson is dead broke—as are probably all the Avengers, save for Tony Stark, who inherited enough money to buy all the Audis he can trash. During a visit home to Louisiana, Sam and his sister go to the bank in hopes of rescuing the family’s shrimping business. Yet Sam reveals that the Avengers received no pay, so a guy who helped disintegrate a 10-foot purple alien maniac with the voice of Josh Brolin can’t hack a simple Small Business Administration (SBA) loan.

As mentioned, seeing a hero embarrassed in such workaday fashion was a neat plot device that generated conversation around some timely issues and went a long way toward humanizing its heroes (something Marvel does well, by the way). But I’m an employment lawyer, so, just as a hammer thinks everything is a nail, my insolent Internal Monologue cried, “Someone’s getting suuuuuuued!

Thanks for Saving the World, But Still, No Pay

Let’s game out this dispute, which gives us a nice little refresher on the high points of wage and hour law. Imagine that Sam hires a lawyer and sues under the Fair Labor Standards Act (FLSA) for minimum wage violations, overtime violations, and liquidated damages for all the time he was “suffered or permitted to work” (and, considering he mostly lived and worked in the same places, his work time, meal time, on-call time, travel time, training time, sleeping time, and donning and doffing time is gonna add up in a hurry). For good measure, he will probably throw in some state law wage payment claims. 

We can count on some serious press coverage, and some commentators are likely to cast Sam as a bit ungrateful. After all, he lived rent-free in a really cool compound with all the modern toys and tech he could want; traveled where he liked, when he liked; and never had to pick up a check. Certainly, that counts for something, right? No, it does not. The FLSA is a strict liability scheme. It does not care, in most circumstances, how well someone is treated or, if someone is paid, how much he or she receives. Instead, the FLSA cares about the appropriate classification of the employee and whether the employee is paid according to the correct formula (e.g., time and one-half his or her regular rate for all hours worked in excess of 40 in a given workweek). 

Wait a minute, you say: How can Sam sue the Avengers? (We’ll skip the thorny issue of whether the Avengers are a U.S. government organization and assume them to be a private organization.) The FLSA will apply to an “enterprise,” which is defined as “related activities performed … by any person or persons for a common business purpose,” so long as it operates in interstate commerce and hits a relatively modest $500,000 revenue threshold. That defense isn’t looking like a great option for our heroes, not to mention that the FLSA provides for individual liability (we’re looking at you, Mr. Stark). At this point, I suggest that the Avengers focus discovery on proving that Sam is an independent contractor or (for a longer Hail Mary) a volunteer and wish them luck.

At the end of the day, though, I’m afraid Sam is out of luck. FLSA claims carry a 2-year statute of limitations, which may be extended to 3 years for willful violations. Anyone who watched Avengers Infinity War knows that Sam was “blipped”—he disintegrated, along with half of life in the universe. And even though the remaining team brought him and the others back in Endgame, that happened 5 years later. Sorry, pal—you have to talk to Congress about that one.