In the still unresolved FLSA litigation concerning alleged unpaid overtime brought by a former personal assistant to entertainer Stefani Germanotta a/k/a Lady Gaga, Judge Paul Gardephe of the Southern District of New York has issued a lengthy ruling addressing some of the asserted claims and defenses. The Court concluded that plaintiff’s New York state law claims only applied to work performed inside New York State as a matter of law, but that trial would be necessary to determine plaintiff’s hours worked under the FLSA, and how many of those hours her fixed weekly salary was intended to cover. O'Neill v. Mermaid Touring, Inc., 2013 U.S. Dist. LEXIS 129750 (S.D.N.Y. Sept. 10, 2013).

Plaintiff Jennifer O’Neill alleged in her original complaint and in discovery that she was required to be with Ms. Germanotta “24/7,” including sleeping in the same bed, and that all such time – literally “around the clock” – constituted work under the FLSA, notwithstanding defendant’s assertion that much of the alleged time in question was personal time and that there were long stretches where plaintiff performed no work. Judge Gardephe rejected plaintiff’s claim that her domicile in New York served as a basis for the New York Labor Law to apply to all of this alleged “work,” including work performed outside of the state on Gaga’s national or international tours. However, he found questions of fact concerning the “24/7” allegation material to the inquiry as to whether the “conditions [applicable to alleged non-compensable time were] . . . so circumscribed that they restrict the employee from effectively using the time for personal pursuits . . . [and thus] constitute[d] compensable hours of work."

Finally, as concerned the number of hours plaintiff’s substantial fixed salary was intended to compensate her for, Judge Gardephe ruled that disposition of that issue depended on resolution of a factual dispute regarding fluctuation in Plaintiff’s hours, which itself depended on the compensability of on call time and total hours worked. As the Court could not determine the latter as a matter of law, summary judgment was denied. 

This decision is positive for New York employers in that it limits employee wage claims by declining to apply New York Labor Law coverage extra-territorially. However, the ongoing litigation pertaining to compensable hours and the hours covered by a salary, is a vital reminder to employers of the unusual fact scenarios and corresponding thorny legal issues which can arise under the FLSA.