Lady Gaga’s Assistant Can Take Demand for OT Pay to Jury
A federal judge in New York on Sept. 10 said the claims of Lady Gaga’s former personal assistant for unpaid overtime can go to a jury, refusing to dismiss Jennifer O’Neill’s demand for the singer to pay her for all her “on-call” time — which she says was 24/7 for over a year.
Gaga Round the Clock
O’Neill worked as a personal assistant to Lady Gaga — whose real name is Stefani Germanotta — from 2010 to 2011 for a $75,000 annual salary. But her understanding was that she’d be working 40-hour work weeks and then get paid time and a half for overtime.
O’Neill sued Gaga earlier this year, claiming compensation for every moment beyond the 40 hours per week and alleging that she was on-call all the time. She says she even had to sleep in Gaga’s bed while on tour and do things like get up in the middle of the night to change a DVD or do errands.
O’Neill also says she was responsible for continuous tending to the star’s every need, including helping with her makeup and hair, cleaning up after her, and transporting her to events. She says she was also expected to interrupt her personal time immediately at any given moment.
Gaga says she owes O’Neill nothing, having paid her the agreed $75,000. She also says she shouldn’t have to pay her for any overtime hours worked outside of New York, and that if she does have to pay overtime, it should be calculated at less than time and a half.
Effective Use of Time
The judge agreed with Gaga on the New York labor law claim, saying that O’Neill couldn’t get OT outside of New York under that state law. But he also said that the parties are telling different stories about the extent to which O’Neill was restricted from using her on-call time for personal reasons, so a jury must decide how much of the assistant’s on-call time could be considered work.
Under the Fair Labor Standards Act, on-call time is considered work if the employee’s free time is restricted by her job. “The test is heavily fact-based,” notes employment lawyer Salvatore G. Gangemi of Gangemi P.C. in New York.
“The question that must be answered is whether employees are required to remain on the employer’s premises or close to the premises so that the employee really cannot use that time effectively for their own needs or purposes,” he explains.
Gaga may be out of luck if the jury believes O’Neill’s version of her job. “If the employee is required to remain with the employer at all times in order to fulfill immediately any of the employer’s requests, then generally speaking such time will be considered compensable time, and need to counted toward overtime,” Gangemi says.
Salaried Workers Can Still Get OT
It may seem strange to some that a salaried employee would even have a claim for overtime, but there is another test applied for that situation, Gangemi says: “Whether salaried employees are entitled to overtime depends upon whether [she] satisfies the rest of the test for being considered exempt from overtime pay,”
In order to qualify for the “administrative exemption” to overtime, he explains, O’Neill would have to meet three requirements:
- She must have been paid on a salary basis at a rate not less than $455 per week;
- she must have performed, as her primary duty, office or non-manual work directly related to Gaga’s management or general business operations; and
- she must have exercised discretion and independent judgment with respect to matters of significance.
It’s not enough that Gaga merely paid her a salary; that doesn’t exempt her from paying the assistant overtime. “There are other types of exemptions in addition to the administrative exemption, but they all contain a ‘duties’ test,” Gangemi says. “In this case, the problem was with the duties portion of the test.”
Gangemi opines that the case will settle, based on some agreed-upon calculation of overtime. It’s unlikely that the famous and fabulous Gaga would want a jury to hear about her unfairly denying pay to a regular person like them. “It certainly makes the ‘rich” employer look bad that [she] refuse[s] to pay what amounts to a relatively small sum,” he observes.
And more heads could likely roll in the Gaga camp based on how O’Niell’s job was handled. “In reality, Lady Gaga is probably not the one deciding how much the employee should be paid, but has delegated that task to others, who may be concerned now for having gotten it wrong,” Gangemi adds.
“Nevertheless, the arrangement in this case is common among celebrities,” he notes. “You would expect to see these disputes a lot more. Generally, they are triggered as a result of something unrelated to the actual overtime issue.”