What would you say is one of the biggest impacts on employers of this new (well, maybe, not so new) era of technology? The inability of employers to know about and keep track of time spent by employees working off premises and outside of “normal” working hours; an inability aided by employee use of social media and technology devices.
The concept is highlighted in a lawsuit brought by a former personal assistant to Stefani Germanotta, known by most of us as Lady Gaga. The lawsuit was filed in New York federal court in 2011 (case number 11-9128), in which plaintiff alleges that she was “expected to be working and/or on call every hour of every day” while she was employed by Gaga, and thus plaintiff is owed overtime pay for every single hour in every day beyond those up to the first 40 hours in the week. As court documents describe, Gaga moved into plaintiff’s apartment prior to 2008, and in early 2009, offered plaintiff a job as Gaga’s personal assistant. Plaintiff worked in that capacity in early 2009, and then again from February 2010 until she was terminated on March 5, 2011.
Court documents have plaintiff describing her duties as:
“anything and everything that [Gaga] needed, from cleaning the hotel room and cleaning up after her to helping her put her makeup on, have her makeup done, making sure her hair looked right before she went on stage, making sure she drank water, making sure she had tea, making sure that she ate, making sure she was hopefully on time to places. And just being there for her.”
More relevant to this blog, plaintiff was also required to stay on-call 24/7 and constantly monitor Gaga’s e-mails. Plaintiff alleged:
“I’m always working 24/7 because I’m on call. My phone is on, I’m expected to carry my phone with me at all times, to pick up the phone no matter what I’m doing, no matter where I am, and tend to what it is that [Gaga] needs. So I consider myself to be on call 24/7 and available for her 24/7.”
Plaintiff even described how she would share a bed with Gaga (rather than have her own hotel room on tour), and was woken up by Gaga to replace a DVD in the TV when Gaga was tired of watching it in the middle of the night. For her part, court papers indicate that Gaga admitted that plaintiff didn’t exactly have a schedule, and that when plaintiff was needed, she had to be available. But Gaga asserted that plaintiff could still do other things while waiting to be tasked with another duty. So the issue here is whether the time that plaintiff alleged to be “on call” was so restricted as a matter of law that the time constitutes “work time,” or whether plaintiff could sufficiently do what she wanted while “on call” so that the time should not be counted.
The analysis is often complicated – and usually not a mere semantic game – when the employee is, for example, at a baseball game with a friend, and responds to e-mails on her BlackBerry at the same time she is in the stands. Social media, and technology in general, makes it easier for employees to work (or say they work) anywhere, anytime, and makes it harder for employers to keep track of the time and pay their employees properly. In a decision filed earlier this month, the federal judge denied Gaga’s motion to summarily dismiss plaintiff’s claims, ruling that a jury should resolve the factual and credibility issues that existed. Trial is scheduled to start on November 4th. Will keep you posted on this Bad Romance.
Employer Take Away: What should you as an employer take away from this development?
Do you want to be in this fight? I don’t mean with Lady Gaga specifically, I mean a fight over how many hours were truly “worked” by an employee versus how many of those hours could be used by the employee for his or her own purposes.
We know that many of your employees have access to e-mail from supervisors and documents/files they could be working on at all hours of the night, from anywhere in the world. Do you have sufficient policies, practices, and protocols in place to minimize your exposure to a large wage and hour claim? It will mean the difference between going gaga and gagging.