Gaga over the FLSA monster

by Boyd Byers

Pop diva Lady Gaga affectionately refers to her fans as “little monsters.” But she recently became acquainted with a big monster― the Fair Labor Standards Act (FLSA).

Jennifer O’Neill, who worked as Gaga’s personal assistant, sued the pop star’s company, Mermaid Touring, Inc., for FLSA violations. She says she was continuously on the clock to attend to Gaga’s needs at her beck and call, both at home and while she was on tour. According to O’Neill’s math, during 56 weeks of employment, she worked more than 7,000 hours of uncompensated overtime, for which she is owed nearly $400,000 in back pay, an equal amount in liquidated damages, and the obligatory attorneys’ fees and costs.

Born this way?
Gaga testified for six hours in the case. Excerpts from her deposition transcript were recently reported in the New York Post. Here are some highlights.

Gaga said that O’Neill “knew exactly what she was getting into, and she knew there was no overtime.” When grilled by O’Neill’s lawyer, Gaga admitted that her decision not to pay overtime wasn’t based on the law but was “actually based on a bubbly, good heart.” She also testified that O’Neill was “majorly unqualified” for the job, which was “essentially [given to her as] a favor.” And it was filled with perks: O’Neill “slept in Egyptian cotton sheets every night, in five-star hotels, on private planes, eating caviar, partying . . . all night, wearing [Gaga’s] clothes.”

Gaga claimed that her employees work only eight hours a day. As she put it, “This job is a 9-to-5 job that is spaced out throughout the day.” Unable to keep her poker face, Gaga called O’Neill a “f**king hood rat who is suing me for money that she didn’t earn.”

“I’m quite wonderful to everybody that works for me,” Gaga added, “and I am completely aghast [at] what a disgusting human being that [O’Neill has] become to sue me like this.”

The edge of glory
Gaga’s “occupations,” according to Wikipedia, are “singer, songwriter, record producer, dancer, activist, businesswoman, fashion designer, actress, philanthropist.” That list, while impressive, does not include HR manager. So what can she learn from this experience? Based on her deposition, perhaps nothing. But you can learn plenty:

• First, the law is what the law is. If an employee doesn’t meet a statutory exemption, you’re legally obligated to pay her overtime. News flash: A “bubbly, good heart” is not a defense.
• Second, you can’t “contract around” the FLSA. If an employee isn’t exempt, you have to pay her overtime―even if she agrees to some other arrangement.
• Third, it doesn’t matter that the employee is unqualified or does a poor job or that the job is easy or even fun.
• Fourth, an employee who is required to remain on call on the employer’s premises is working while she’s on call.
• Fifth, bona fide break periods (typically 30 minutes or more) generally need not be compensated as working time if the employee is completely relieved from duty. The employee isn’t relieved from duty if she is required to perform any duties or if she is “engaged to wait.”
• Sixth, be wary of retaliation. Calling a former employee a “f**king hood rat” for suing you might come back to haunt you if a current employee later sues you and subsequently experiences an adverse employment action.

Finally, the FLSA is highly technical, often counterintuitive, and filled with exceptions and special rules. (We can empathize with Gaga’s exasperation over this case.) Ask your lawyer to review your exempt classifications and audit your pay practices if you have any question about whether you’re in compliance with the FLSA.

Boyd Byers is a partner with Foulston Siefkin LLP in Wichita, Kansas. You can contact him at bbyers@foulston.com.