Mays v. Midnite Dreams
915 N.W.2d 71
Neb.2018Background
- Mays, an exotic dancer at Shaker’s (owned by Midnite Dreams, managed by Daniel Robinson), worked under 1-year "Independent Artist Lease Agreements" and paid nightly flat fees for stage use; she received all compensation from customer tips and was never paid by the club.
- Shaker’s posted and orally communicated over 50 "house rules" governing arrival times, dress, sets, pay methods, use of VIP rooms, cleaning duties, fines, and discipline; rules were enforced and agreements were terminable at will.
- Mays sued for unpaid wages, liquidated damages, and attorney fees under the FLSA, Nebraska Wage and Hour Act (WHA), and Nebraska Wage Payment and Collection Act (NWPCA).
- Trial court concluded Mays was an "employee," awarded unpaid minimum and overtime wages (no tip credit) under the FLSA and WHA, liquidated damages, and attorney fees and costs; defendants appealed.
- Nebraska Supreme Court affirmed employee status and WHA relief (but as a tipped employee), reversed FLSA and NWPCA relief for lack of proof of interstate commerce and lack of an established regular payday, and remanded for damages and fees consistent with WHA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lease agreements preclude employee status | Mays: agreements imposed by club do not waive statutory WHA protections | Midnite Dreams: written leases create independent contractor status; parties can contract around relationship | Lease provisions void to the extent they attempt to waive WHA protections; agreements do not preclude employee claim |
| Whether Mays was an employee or independent contractor | Mays: house rules and club control demonstrate employer-employee relationship | Midnite Dreams: payment method, parties’ belief, and lease terms show independent contractor | Court not clearly erroneous in finding Mays an employee under WHA based on control (house rules) |
| Applicability of FLSA (interstate commerce / enterprise coverage) | Mays: claimed FLSA coverage (court below applied FLSA) | Midnite Dreams: no evidence of Mays’ engagement in interstate commerce or employer’s $500K sales threshold | Reversed: Mays failed to show individual or enterprise interstate commerce nexus; FLSA relief was plain error |
| Applicability of NWPCA and tip-credit under WHA | Mays: sought unpaid wages under NWPCA and full minimum wages under FLSA/WHA | Midnite Dreams: leases show no wage agreement; argued tipped status | NWPCA relief reversed (no regular payday or agreed wages); under WHA Mays was a tipped employee and entitled to $2.13/hr plus applicable remedies; attorney fees allowable under WHA only |
Key Cases Cited
- Brozek v. Brozek, 292 Neb. 681 (Neb. 2016) (construction of contract and statute reviewed de novo)
- Williams v. Allstate Indemnity Co., 266 Neb. 794 (Neb. 2003) (employee vs. independent contractor general principles)
- Kime v. Hobbs, 252 Neb. 407 (Neb. 1997) (right of control as chief factor distinguishing employee from independent contractor)
- Martinez v. Petrenko, 792 F.3d 173 (1st Cir. 2015) (FLSA coverage requires interstate commerce nexus)
- Sobrinio v. Medical Center Visitor’s Lodge, Inc., 474 F.3d 828 (5th Cir. 2007) (local duties for out-of-state guests do not establish engagement in interstate commerce)