A recent case from October 19, 2017, illustrates the necessity of maintaining clear records in FLSA matters. The Disc Jockey (DJ) in a club in Tampa, Florida sued Emperors Tampa, Inc. under the Fair Labor Standards Act (FLSA), seeking overtime wages. The club successfully defended against the claim simply because its records were better than the Plaintiffs. While any win under the FLSA in entertainment venues is a huge win, this decision was particularly limited to a specific situation. Nonetheless, all entertainment venues, especially gentlemen’s clubs, can benefit by taking some of the lessons learned from this case to heart.
Emperors Tampa, Inc. is a gentlemen’s club in Tampa Florida. As a gentlemen’s club, Emperors employs bartenders and disc jockeys. One of the disc jockeys brought an action against the club claiming, in part, that he regularly worked overtime and was not paid 1.5 times the wage for all hours worked in excess of 40 in each workweek. These claims are typical for FLSA claims and are generally unprovable by the plaintiffs in such cases.
After the close of discovery, the club moved for summary judgment. Summary judgment is a mechanism wherein a party asks the court to find that there is no legitimate factual dispute, and based on those facts one party wins as a matter of law. Summary judgment is typically filed after the close of discovery, which is generally eight months to a year after a federal action is filed. If the motion is granted, the case is over, and there is no trial, though a party does have the opportunity to appeal. However, to be successful, as indicated above, there really must be no legitimate dispute as to the facts. An inference of the existence of a dispute is insufficient to overcome summary judgment, there must be actual facts in evidence through discovery that shows a disputed fact.
In this matter, the club had legitimate records and the plaintiff did not. The club maintained time sheets showing hours worked. Those time sheets were signed by the plaintiff. The club also had pay records showing what the plaintiff was paid. The plaintiff signed those as well. Therefore, the club was able to show through signed records the total number of hours the plaintiff worked, and the amount plaintiff was paid, without resorting to any tax documents to do so. Tax documents were not discussed at all in the opinion.
The plaintiff had only his allegations regarding overtime. Plaintiff alleged that his signatures were forged on the documents provided by the defendants. The plaintiff also simply denied defendants statements that he was paid all wages due.
The Court found that simple denials and allegations were not sufficient to overcome the documented evidence provided by the defendants. The standards for summary judgment are well established. There has to be actual evidence to rebut the facts stated in summary judgment. Statements by a party are not sufficient to proceed with a claim to trial. As such, summary judgment was granted to defendants on the wage claim, providing the gentlemen’s club, and the industry as a whole, a much needed win.
Entertainment venues, such as gentlemen’s clubs should take several lessons from this case. The main lesson is that maintaining any kind of records can only help in the worst case if a lawsuit is filed. Having those records acknowledged by employees also goes a long way in defending against wage claims. However, it should be noted that affirmative defenses such as the tipped-employee defense, offset, commissioned employees, etc. were not at issue in this case. The only wage issues were how many hours did the plaintiff work and if the plaintiff was paid all wages owed for those hours. The Court answered the last with an enthusiastic “yes” and even indicated that the plaintiff was actually paid more than he was owed.
This ruling is a very limited one for clubs. It pertains to an individual who was an acknowledged employee. No affirmative defenses were at issue and the employer had records of the hours and wages paid. While it is always a good idea to keep such records, whether classifying an individual as an independent contractor or employee, this case not provide guidance on other types of services performed at such clubs. For guidance on those issues, it is important to contact legal counsel experienced with dealing with clubs, including and specifically with wage issues clubs face.
It should also be noted that the plaintiff in this case represented himself. In fact, he submitted hand-written responses to the Motion for Summary Judgment filed by Defendants. Neither of these actions sit particularly well with the Court. The lack of professionalism typically will get a pro se plaintiff through discovery, but often is a severe detriment to such plaintiffs when dispositive issues come to the Court.