Even Lady Gaga Doesn’t Understand When You Have to Pay Overtime

By Eric B Meyer

We’re talking a lot of money honey.

(Yes, I know. I couldn’t even make it one line without a stupid Gaga pun.)

It may not be so glamorous working for Gaga.

Stefani Germanotta, better known to you (I call her Stefani) as Lady Gaga, employed her friend, Jennifer O’Neill, as her personal assistant in 2009 and again between 2010 and 2011. In 2010-2011, Ms. O’Neill made an annual salary of $75,000, for which she claims to have been at Stefani’s beck and call 24 hours a day, 7 days a week.

Gaga’s assistant did “anything and everything”

Ms. O’Neill claimed that her duties for Stefani entailed “anything and everything” that Stefani needed. Here are some examples:

  • Cleaning up after her;
  • Making sure her hair looked right before she went on stage, she drank water and had tea, ate and received “special food” at every concert location, and was hopefully on time to places, such as concert venues;
  • Handing Stefani’s email and phone communications, luggage — generally 20 bags — clothes, accessories, makeup, and toiletries as the tours proceeded;
  • Having ice packs, tea, and a shower ready at each concert venue;
  • Addressing Stefani’s needs throughout the night (such as when Stefani would get tired of watching a DVD, she would wake up Ms. O’Neill to change it);
  • And, just being there for her.

Supposedly, Ms. O’Neill was expected to be available “24/7,” even when Stefani was on vacation or when O’Neill was engaged in personal matters, including meals with friends, doctors’ appointments or visits with family.

On-call time may be compensable time

Her good buddy Stefani eloquently described it this way:

You don’t get a schedule. You don’t get a schedule that is like you punch in and you can play fucking Tetris at your desk for four hours and then you punch out at the end of the day. This is when I need you, you’re available.”

Ms. O’Neill sought OT for all of the hours in excess of 40 hours she claimed to have worked each week. And, last week, this New York federal court allowed Ms. O’Neill’s claim for unpaid overtime to go trial.

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Under the Fair Labor Standards Act, non-exempt employees, like Ms. O’Neill, are entitled to receive overtime at a rate of 1-1/2 times their hourly wage for each hour worked over 40 in a particular work week. It does not matter that Ms. O’Neill — or anyone who is non-exempt, for that matter — is paid a salary. That’s a common misconception. What matters is whether Ms. O’Neill qualifies for an exemption, which she clearly does not.

So, the question then is whether being on call 24/7 is actually work. In Ms. O’Neill’s case, “work” is defined as “exertion or loss of an employee’s time that is:

  1. Controlled or required by an employer;
  2. Pursued necessarily and primarily for the employer’s benefit; and,
  3. If performed outside the scheduled work time, an integral and indispensable part of the employee’s principal activities.”

Court rules that Gaga’s assistant was working 24/7

Viewing the facts before it, the New York federal court determined that a reasonable jury could conclude that Ms. O’Neill was “working” for Stefani 24/7:

The record in the case demonstrates that Plaintiff was Germanotta’s only personal assistant for most of the time at issue and both sides agree that she was expected to be available as needed throughout each hour of each day….While Defendants point to certain activities that they claim show that O’Neill was able to use “on-call” time for her own purposes — given the record — it is a jury question how much of O’Neill’s “on-call” time was “so circumscribed [by Germonatta]” that O’Neill was restricted from “effectively using the time for personal pursuits.” Defendants have not demonstrated that they are entitled as a matter of law to judgment on this issue.”

Not that many of you need your assistants to change out your DVDs at 3 am, but keep this case in mind when placing employees on-call — they may still be working.

For more on what it means to be on call, check out the U.S. Department of Labor regulations.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.