Large employers are not the only ones subject to the reach of the Fair Labor Standards Act (FLSA). Jennifer L. O’Neill, former assistant to Lady Gaga, has filed a Complaint against Mermaid Touring Inc. in the United States District Court for the Southern District of New York alleging violations of the FLSA and New York State Labor Law (NYSLL).
The Fair Labor Standards Act requires payment of minimuim wage and overtime to employees. O’Neill alleges that while being paid a salary, she did not meet any of the FLSA exemptions to overtime pay. In many instances, employers of personal assistants attempt to utilize the administrative exemption to avoid overtime pay. To qualify for the administrative exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
- The employee’s primary function must be to perform office or non-manual work that is directly related to the management or general business operations of the employer or the employer’s customers; and
- The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Ms. O’Neill alleges that her duties did not involve the exercise of discretion of matters of significance. She also alleges that she was on duty for twenty-four (24) hours each day, “with no entitlement to breaks, for meals or otherwise, or, at times, even sleep.” This amounts to an alleged 6,656 hours of unpaid overtime for a period of 56 weeks. Alleged damages total $359,956.48 just for unpaid overtime.
You should never assume that the FLSA does not apply to you or your business. Even small employers and individuals would significantly benefit from consultation with a labor and employment attorney to review potential minimuim wage and overtime issues when employing anyone.
By: Justin A. Morocco