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Overtime lawsuit may look to NZ ruling

THE DOMINION POST - TUESDAY, 12 FEBRUARY 2013


It seems that Lady Gaga’s former personal assistant, Jennifer O’Neill, might be helped by a New Zealand Employment Court decision.

O’Neill has filed papers in Manhattan Federal Court claiming her employer owes her over $380,000 in overtime payments. She claims she was by Lady Gaga’s side virtually 24 hours a day, seven days a week and that it included sleeping in the same bed as Lady Gaga. O’Neill added that she felt sleeping in Lady Gaga’s bed was a required part of the job. Unlike others on the tour, she did not have her own hotel room and was not asked if she wanted one.

There is no suggestion of a sexual relationship between O’Neill and the 26 year old popstar. However, O’Neill said she had no opportunity to spend time with anyone else while she was working for Lady Gaga. She claimed to have no privacy, no chance to talk with family and no chance to talk with friends.

To make matters worse, it is alleged that Lady Gaga would frequently wake O’Neill up in the middle of the night, just to have her change DVDs.

Lady Gaga did not respond to the allegations in the aristocratic manner that would befit her title, “Lady”. In her sworn deposition, Lady Gaga is quoted as saying “Jennifer is a f---ing hoodrat who is suing me for money that she didn’t earn. She thinks she’s just like the queen of the universe. And you know what, she didn’t want to be a slave to one, because in my work and what I do, I’m the queen of the universe every day”. Lady Gaga added that she never paid anyone overtime, including O’Neill.

Lady Gaga graciously concluded that “the whole case is bullshit and you know it”. She opined that her decision not to pay overtime wasn’t based on labour laws but on her “bubbly good heart”. While she didn’t pay her staff overtime, Lady Gaga claims she sometimes treated them to $3000 dinners. She also made plain that O’Neill, as a result of her employment, slept in Egyptian cotton sheets every night, stayed in five-star hotels and ate caviar while travelling on private planes.

It will be interesting to see whether O’Neill succeeds in her claim for unpaid overtime as her situation has a number of parallels with one of New Zealand’s most significant employment cases in recent times.

Philip Dickson became famous in New Zealand employment law after bringing a successful claim against his employer, Idea Services. He was a community service worker who cared for people with disabilities who lived in a community home. Sometimes he was required to perform what is called a ‘sleepover’. A sleepover required Dickson to be present at the community home overnight and to attend to any incidents that arose with residents of the home. When there is no need to tend to the residents’ needs, Dickson’s time was his own and he could sleep or rest.

At all times Dickson had to be ready to respond to any incidents and he could not engage in any behavior that might disturb residents. He was paid only $34 per night for being on call and $17.66 an hour for any time he spent attending to incidents. On a night when there were no incidents Dickson’s pay would work out to about $4 an hour, well below the minimum wage.

Dickson won the case as both the Employment Court and Court of Appeal concluded the sleepovers were work and that Dickson was entitled to be paid at least the minimum wage for the nights he spent at the community home.

In coming to this conclusion, the Employment Court in particular took account of three key factors: the constraints imposed on the employee, the responsibilities of the employee, and the benefit of the employee’s service to the employer.

In light of these considerations, O’Neill may have a frailer case thanDickson. It’s not clear from O’Neill’s evidence, as published in the media, that her responsibilities were as great as those of Dickson. Were her case heard in New Zealand then, she might struggle to win.

Finally, we have also read recently about Tamara Baddeley, a home support worker who is taking a test case on behalf of many homecare workers on the grounds that she is not paid for the time she spends travelling between jobs. While this is not a case of whether she is working while asleep, her argument is that when she drives from job to job, the 33c a kilometre for travel she is paid for her vehicle costs, is not payment for the actual time she spends travelling, or if you like, for working.

While Lady Gaga’s assistant will capture the headlines with tales of $3000 dinners, Egyptian cotton sheets and the like, the issues raised by Tamara Baddeley are just as important.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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