by Boyd Byers
I have a confession. In the 1980s, I rocked out to heavy metal music ― bands like Def Leppard, Guns N’ Roses, Judas Priest, and the Scorpions. But above them all was Mötley Crűe. Other bands talked the talk, but the Crűe ― proclaimed the world’s most notorious rock band ― walked the walk. Screaming vocals, searing guitars, and a drum set that erupted from the stage and rose high into the air. Long hair and tattoos; legal scrapes and prison time; and, of course, the intentionally (I think) misspelled name with unnecessary umlauts.
Don’t go away mad (just go away)
In light of my historical devotion to Mötley Crűe, together with my present life as an employment lawyer, I was intrigued when Crűe drummer Tommy Lee was sued by a former employee late last year. Michael Anthony Sullivan (named for Van Halen bassist Michael Anthony?) worked as Lee’s all-purpose assistant from 2005 until March 2011. According to court documents, his job duties included “procurer, Man Friday, chauffeur, guide, book-keeper, attendant, door-keeper, agent, butler, valet, attendant, cook, shopper, nanny, bodyguard, maid, nurse and nursemaid.”
That sounds like a metal head’s kick-butt dream job. And it probably was until the relationship turned sour. But Sullivan now complains that Lee denied him overtime despite being on call 24 hours a day and working up to 16 hours a day when Lee was on tour. He also claims that whenever Lee was upset with him, he would dock his pay. Further, the lawsuit alleges Sullivan often paid for supplies for Lee, his family, and his business but wasn’t reimbursed for the expenses.
But perhaps the impetus for the lawsuit lies in Sullivan’s accusation that Lee smeared his reputation and interfered with his ability to get another job in the rock world. The lawsuit alleges that after Sullivan left Lee’s service, Lee began “a campaign of disparagement” that sabotaged potential tour manager jobs with the bands Bush and Godsmack.
The case settled quickly, as celebrity lawsuits often do. Lee agreed to pay Sullivan $400,000 and issue him a public apology.
Keep your eye on the money
We don’t know if Sullivan’s claims had merit or if he is simply a bitter former employee trying to exploit a celebrity. But whatever the truth, there are some lessons this story should drum into your head.
First, when two parties enter into a relationship in which one provides services for the other, the law ― not any agreement or understanding between the parties ― dictates whether an employment relationship exists. If you haven’t done so recently, take a look at all persons who perform services for your organization and assess whether they are in fact employees under the law (as opposed to independent contractors, unpaid interns, volunteers, or whatever else you might be calling them).
Second, the law imposes numerous obligations on employers and affords protections to employees. So even if an employer and employee are friends, the employee agrees to the compensation terms, the compensation paid is inherently fair, the compensation arrangement is consistent with industry norms, or the job is really cool, the employer is still on the hook for legal liability if it doesn’t comply with the technical requirements of wage and hour and wage payment laws.
Your organization should regularly assess its compensation practices with assistance from legal counsel. For every employee who isn’t paid on an hourly basis with a premium for overtime work, consider what exemption you are relying on and whether it really applies to the facts. Also, be wary that docking pay, even if the reasons seem fair, may destroy an otherwise valid overtime exemption or violate technical state wage payment laws.
Third, be careful what you and others in the organization say about former employees. While many states have reference immunity laws, don’t take that as a license to say whatever you want to whomever you want. Every organization should have a formal reference policy that designates a person to whom all reference requests should be directed and specifies what information will be given out and under what conditions.
Fourth and finally, in the 1980s, I was an idiot.
He said it
It was 1989. My thoughts were short; my hair was long.
― Kid Rock
About: Kansas Employment Law Letter:|
Excerpted from Kansas Employment Law Letter written by attorneys at the law firm of Foulston Siefkin LLP. KANSAS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kansas employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Contact the attorneys at Foulston Siefkin LLP.