The curious case of Lady Gaga's dog walker: An employment law tale

If you’re an employment lawyer, you see employment related issues – almost – everywhere …current events, sports, and pop culture. And, it’s just that perspective that brings us to the curious case of Lady Gaga’s dog walker’s employment status.

As has been widely reported, Lady Gaga’s dog walker was ambushed while walking two of her French bulldogs in Hollywood, California. The dog walker, who was shot, is recovering and after several days the dogs have been returned.

Let’s start by recognizing that this was a terrible crime (perhaps, a story for a criminal lawyer). But, with the dogs safely returned and the dog walker on the mend, we can now examine the employment law issues lurking in the background.

Employee or independent contractor?

It is being reported that Lady Gaga intends to pay the dog walker’s medical bills related to the incident. Of course, that is very honorable of her. But that led me to wonder, is Lady Gaga’s dog walker an employee or an independent contractor?

The issue of whether a worker is an employee or independent contractor is not an easy one. The states and the federal government have struggled over the appropriate test for decades. Key factors in the analysis include who has behavioral and financial control of the relationship. At the end of 2020, the U.S. Department of Labor (DOL) issued new regulations making it easier to define a worker as an independent contractor. But, those regulations were promptly put on a pause by the Biden administration in January 2021.

So, that leaves employers with the long standing economic realities test to determine whether a worker is an employee or an independent contractor. Essentially, the goal of the economic realities test is to determine whether the worker is economically dependent on the supposed employer or free to control the business performed.

“In general, an employee, as distinguished from an independent contractor who is engaged in a business of his own, is one who "follows the usual path of an employee" and is dependent on the business that he serves.” (DOL Compliance Assistance Resources). This leads to six key factors that the DOL will consider to determine the nature of the relationship.

Now remember, the states play a role in this classification process, too. The states rely on a variety of tests to evaluate employee/independent contractor status – some more stringent than others. The incident in question here occurred in California, which uses the stricter “ABC Test” to classify workers. That test distills the analysis down to three factors:

• Is the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact?
• Does the worker performs work that is outside the usual course of the hiring entity’s business?
• Is the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed?

As you can see, under any test the determination of employee/independent contractor status is highly fact specific. An employer needs to consider the nature of its business, what the worker is doing for the company, and even how the worker is holding themselves out to the business community generally.

Why does this matter?

Now, you may be asking why does any of this matter? Well, whether the dog walker is an employee or an independent contractor determines the dog walker’s rights and Lady Gaga’s obligations.  

• Federal and state laws will govern the payment of wages for an employee, while an independent contractor is paid pursuant to the terms of an agreement with the contractor. If the worker is an employee, the employer must properly classify them as either exempt or non-exempt for overtime pay purposes. (An issue that Lady Gaga is also familiar.)
• Significantly in this situation, an employee will likely be covered by state law workers’ compensation insurance if an injury is work-related. This means that lost wages and medical costs would be paid through the workers’ compensation coverage maintained by the employer.
• In addition, depending on the size of the employer and where it is located, an employee may have certain rights to time off to recover from the incident.  In California, the California Family Rights Act covers employers with five or more employees and provides up to 12 works of time off for an employee’s own serious health condition.

Employment law takeaways

Of course, Lady Gaga and her bulldogs have been reunited and the dog walker is expected to make a full recovery, so this part of the story has a happy ending. But, what can employers take away from the employment law aspect of this tale?

If you’re paying a worker to perform services, an employment law issue may be lurking in the background. It is important to properly assess whether a worker is an employee or an independent contractor to ensure compliance with applicable federal and state laws. Let’s hope that Lady Gaga and her team did that so the employment law part of this story has a happy ending too.

The McDonald Hopkins Labor & Employment Law Team will continue to keep employers updated on employment law issues – wherever we find them. Please contact your McDonald Hopkins employment lawyer with any questions.