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.
Jennifer O’Neill, who worked as Gaga’s personal assistant, sued Gaga’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 traveling on tour. According to O’Neill’s math, during 56 weeks of employment she worked over 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 to not 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 a favor.” And it was filled with perks: “she slept in Egyptian cotton sheets every night, in five-star hotels, on private planes, eating caviar, partying . . . all night, wearing my clothes . . . .”
Gaga claimed that her employees only work 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,” she added, “and I am completely aghast to what a disgusting human being that you have become to sue me like this.”
The Edge of Glory
Lady Gaga’s “occupations,” according to Wikipedia, are “singer, songwriter, record producer, dancer, activist, businesswoman, fashion designer, actress, philanthropist.” This list, while impressive, does not include human resources 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. Newsflash: a “bubbly, good heart” is not a defense.
Second, you can’t “contract around” the FLSA. If an employee is not 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 “on call.”
Fifth, bona fide break periods (typically 30 minutes or more) generally need not be compensated as work time, but only if the employee is completely relieved from duty. The employee is not relieved 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. (One can sympathize with Lady Gaga’s exasperation over this case.) Have your lawyer review your exempt classifications and audit your pay practices if you have any question whether you’re in compliance with the FLSA.