A former personal assistant, friend and roommate of pop star Lady Gaga may be able to collect overtime pay for being on call "every hour of every day" for nearly a year, a federal judge has ruled.
Southern District Judge Paul Gardephe (See Profile) on Monday refused to grant the "Born This Way" singer and her company, Mermaid Touring Inc., summary judgment that the assistant, Jennifer O'Neill, is not entitled to payment for hours she spent on call, rather than actively working.
The judge also declined to grant summary judgment that inasmuch as O'Neill is entitled to any overtime, it should be calculated on a "flexible work week" basis, which requires overtime pay of only half time, rather than time and a half.
Gardephe did grant summary judgment to Gaga on one issue, ruling that O'Neill cannot get damages under New York's Labor Law for work performed outside of the state.
The case, O'Neill v. Mermaid Touring, 11-9128, is set to go to trial Nov. 4.
Gaga, born Stefani Germanotta, moved into O'Neill's building on the Lower East Side of Manhattan some time before 2008, according to the decision. The two eventually became friends and roommates.
In 2009, Gaga offered O'Neill a job as her personal assistant. O'Neill took the job, worked as Gaga's personal assistant for about four weeks in early 2009, and was paid $1,000 per week.
In February 2010, Gaga hired her again, and O'Neill continued working for her until March 2011, when she was fired. She was paid an annual salary of $75,000 during that time, and there was no discussion of overtime compensation.
O'Neill, represented by Virginia Trunkes of Snitow Kanfer & Holtzer, alleges that as Gaga's personal assistant, she had to be on call "24/7."
Her duties were wide-ranging. She testified they included cleaning up Gaga's hotel rooms, having her makeup done, making sure she drank water and ate, making sure she had tea and "special food" wherever she went, handling her email and phone calls, handling her luggage and "just being there for her."
O'Neill says she was required to have her phone on all the time and answer any requests Gaga made, no matter what she was doing. She said she never had her own hotel room, and that she and Gaga often shared a bed, and that Gaga would wake her up throughout the night to do things for her, like changing a DVD.
Gaga moved for partial summary judgment on three issues: that O'Neill could not get damages under New York's Labor Law for work outside of New York; that she could not be paid for the time when she was "on call"; and that inasmuch as she was entitled to overtime, she could get only half pay for hours beyond 40 per week, under a so-called flexible work week framework.
Gaga and her company are represented by Andrew Rice and Steven Hurd of Proskauer Rose.
Gardephe agreed that New York's Labor Law does not apply outside of the state, and granted summary judgment on that issue.
However, he ruled that the other issues raised factual questions that must be decided by a jury.
Federal labor law says that if "on call" time is restricted to the point where employees are prevented from "effectively using the time for personal pursuits," it is compensable.
Gaga argues that O'Neill was often free to pursue her own activities, even if on call, and that her on-call hours should not be compensated.
"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,'" Gardephe said.
Gaga also argued that, if O'Neill is paid overtime, it must be calculated in a flexible work week framework, laid out in a Department of Labor rule. In a flexible work week situation, an employee's fixed rate of pay is considered to be pay for all hours actually worked. Since all hours, including hours beyond 40 per week, are already considered compensated at a straight hourly rate, overtime hours are additionally compensated at one half of that rate, rather than time and a half.
Gaga has conceded that O'Neill was misclassified as an overtime-exempt employee for the purposes of the summary judgment motion only.
For a flexible work week framework to apply, the total pay must be enough that the hourly rate does not fall below minimum wage for any week.
Gardephe declined to settle the question. He noted that neither the U.S. Court of Appeals for the Second Circuit nor the Southern District has ever decided whether a flexible work week framework can be applied retroactively where a salaried employee has been misclassified. Other circuits are divided on this issue.
Gardephe said that two 1942 U.S. Supreme Court cases, Overnight Motor Transp. v. Missel, 316 U.S. 572, and Walling v. A.H. Belo Corp., 316 U.S. 624, seemed to support applying a flexible work week framework retroactively, and that some circuits had interpreted them that way.
However, Gardephe said he could not rule on the issue because Gaga had not laid the necessary factual groundwork of showing that O'Neill's hours were actually flexible, and not "24/7" as O'Neill claims. He denied that part of the motion on that issue without prejudice.
Trunkes, who represents O'Neill, said she was pleased with the decision. "We're glad the case is moving along quickly and we look forward to its resolution," she said.
Neither Rice nor Hurd from Proskauer Rose could be reached for comment.
@|Brendan Pierson can be contacted at email@example.com.