Pay Transparency and Prompt Payment Policies Obtained by Jasmine Burgess in Major Model Misclassification Lawsuit Become Effective - The Matter Was Settled by the Parties on Mutually Agreeable Terms

On February 1, 2024, Plaintiff model Jasmine Burgess (“Plaintiff”) settled her putative class and collective action lawsuit against Defendant Major Model Management, Inc. (“Major”) and Defendant agency owner Guido Dolci (“Dolci”) (collectively, “Defendants”) alleging misclassification of Major’s signed models as independent contractors.

The matter was settled by the parties on mutually agreeable terms, on an individual basis, primarily resulting in Major adopting historic NYC modeling agency prompt payment and pay transparency policies concerning payments to its models.

The potentially industry-shaping prompt payment and pay transparency policies became effective April 1, 2024, and continue until February 1, 2034.

As background, Plaintiff’s Amended Complaint alleged that Major and agency owner Dolci had misclassified her, and other similarly situated signed models, as independent contractors, resulting in minimum wage violations of the Fair Labor Standards Act (“FLSA”), as well as minimum wage, recordkeeping, illegal deduction, and failure to pay earned wages claims in violation of the New York Labor Law (“NYLL”). The Amended Complaint further alleged that Defendants had retaliated against Plaintiff for amending her complaint to add class action allegations.

In approving the settlement at a hearing on February 1, 2024, United States District Court Judge Rochon held that the settlement provides “the equivalent of class-wide injunctive relief for all of Defendants’ models over the next ten years,” and that “[b]ecause the FLSA does not provide injunctive relief for private parties for wage-and-hour violations, this relief goes beyond any that Plaintiff could have recovered under FLSA had she gone to trial.”

Specifically, under the settlement agreement, beginning April 1, 2024 (unless otherwise specified) until February 1, 2034, for all models currently signed with Major or who sign with Major, Major will:

(1)  provide models with access to a smartphone application, which application will provide, within three business days of the date of payment receipt by Major, information on any and all payments concerning and/or relating to the models’ work, including, the client name, invoice number, invoiced amount (not including Major’s agency and/or service fee), the receipt of payment by Major, and the payment amount received by Major, concerning each payment to Major, including with respect to all bookings and usages;

(2)  provide payment to models for their modeling work, including for their bookings and usages, without any requirement or need for them to request payment from Major, within thirty calendar days of Major’s receipt of payment concerning or relating to their modeling work (unless the model opts out of such automatic payment pursuant to the procedure described in the settlement agreement or does not submit his/her payment information);

(3)  electronically notify Major models of their scheduling information concerning all bookings, castings, options, go-sees, or similar scheduling, concerning any modeling work assignments, and/or engagements, promptly after the scheduling and finalization of such, bookings, castings, options, and/or go-sees; and

(4)  beginning in 2025, within thirty days of the end of each calendar year, for each model receiving a 1099 form, either provide (A) access to a smartphone application, which application will provide a statement for the preceding calendar year showing: (1) all bookings and/or engagements that occurred in the prior calendar year, identified by the client name and invoice number; (2) the amount invoiced by Major for each such booking and/or engagement; (3) the date the invoice was sent to the client for each such booking and/or engagement; (4) the amount paid by the client for each such booking and/or engagement (not including agency and/or services fees); (5) the receipt of payment by Major from the client for each such booking and/or engagement; and (6) the date and amount of payment to each model for each such booking and/or engagement; or (B) an email of a statement prepared by Major containing the foregoing information.

A copy of the entire settlement agreement is available here.

Plaintiff model Jasmine Burgess said:

“The policy changes that Major Model Management, Inc. and Guido Dolci have agreed to implement over the next decade will ensure timely payments to Major’s models and provide access to an app that will promptly indicate whether the agency received payment for models’ work. I believe that these policy changes will make Major Model a future leader among NYC modeling agencies concerning model pay timeliness and transparency and will eventually set a new standard for model pay practices for all NYC modeling agencies. I am pleased that, after several years of hard-fought litigation, and despite Major’s bankruptcy filing and discharge, ultimately, the matter was settled by the parties on mutually agreeable terms.”

The case was Burgess v. Major Model Management, Inc. et al., 1:20-cv-02816-JLR-GWG, in the United States District Court for the Southern District of New York before United States District Judge Rochon and Magistrate Judge Gorenstein.

Media Contact: Cyrus Dugger, Esq., The Dugger Law Firm, PLLC (646) 560-3208 cd@theduggerlawfirm.com

The Face Modeling Competition Winner Devyn Abdullah Files Complaint Seeking Payment of Withheld Portion of Ulta Beauty Contract Award Against Direct Model Management, Inc. and Owner Mykola Webster

On April 21, 2015, The Dugger Law Firm, PLLC filed a federal complaint on behalf of Devyn Abdullah, the first winner of The Face television modeling competition, against her former modeling agency, Direct Model Management, Inc., as well as Direct owner and president Mykola Webster, and Direct head of finance Atiff Joseph, for violations of federal and state wage and hour laws, as well as breach of contract.  

The complaint alleges that Defendants misclassified Ms. Abdullah as an independent contractor in violation of the Fair Labor Standards Act and the New York Labor Law.

Among other violations, Ms. Abdullah alleges that Defendants withheld, and otherwise failed to pay her, at least $13,000 of her wages from The Face competition award of a $50,000 contract with Ulta Beauty. 

The complaint also alleges that Defendants failed to pay Ms. Abdullah for work with several additional modeling industry clients.

Ms. Abdullah seeks payment of minimum wages, payment of unpaid earned wages, liquidated damages with respect to minimum wages that were eventually paid but were not paid promptly, reimbursements for illegal deductions, additional associated liquidated damages, as well as damages for breach of contract and New York Labor Law recordkeeping violations.

The case is Abdullah v. Direct Model Management, Inc., et al., No. 15 Civ. 03100, in the United States District Court for the Southern District of New York.

For more information contact Cyrus E. Dugger at cd@theduggerlawfirm.com or (646) 560-3208.

Joe’s Crab Shack Managers Overcome Class Hurdles to Move Forward with Class Certification of Misclassification Case

A helpful overview from JDSupra that notes how the court addressed common class certification disputes issues is available here (excerpt below):

Although some of the plaintiffs could not accurately account for the exact amount of time spent performing non-exempt tasks, the court noted that “courts in overtime exemption cases must proceed through an analysis of the employer’s realistic expectations and classification of tasks rather than asking the employee to identify in retrospect whether, at a particular time, he or she was engaged in an exempt or nonexempt tasks.”  It stated that “[b]y refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the trial court may in fact find class analysis a more efficient and effective means of resolving plaintiffs’ overtime claims.” (link)

Sixth Circuit: Collective Action Waiver Unenforceable Without Arbitration Agreement

As covered by Workforce:

"The 6th Circuit held that the waivers were invalid. It concluded that any agreement that deprives one of his or her rights under the FLSA is invalid. Because the waiver deprived the employees of their right to participate in the collective action, it was invalid.

The employer argued that the at-issue agreement does not deprive anyone of any rights, since each employee is free to pursue an individual claim against the company for FLSA violations. The court, however, was not persuaded. Instead, the court concluded that because each employee’s potential claim for unpaid overtime was relatively small, the only real opportunity to pursue the alleged FLSA violation was via a collective action.

'Requiring an employee to litigate on an individual basis grants the employer [a] competitive advantage…. And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.'

As the Killion court points out, this decision now creates a split of authority between the 6th other Circuits. The Killion court also pointed out, however, that every other circuit that has decided this issue in the employer’s favor has done so because the agreements also contained arbitration clauses; the agreement in this case lacked that mechanism. It will be interesting to follow if this employer pursues this matter to the Supreme Court, and if that Court is interested in this important issue, or if other circuits follow Killion’s lead in the non-arbitration context." (link)

I think this paragraph puts it perfectly:

"Because no arbitration agreement is present in the case before us, we find no countervailing federal policy that outweighs the policy articulated in the FLSA.  The rationale of Boaz is therefore controlling.  Boaz is based on the general principle of striking down restrictions on the employees’ FLSA rights that would have the effect of granting their employer an unfair advantage over its competitors.  Requiring an employee to litigate on an individual basis grants the employer the same type of competitive advantage as did shortening the period to bring a claim in Boaz.  And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.  Boaz therefore controls the result here where arbitration is not a part of the waiver provision" (link)

In summary, a thoughtful and helpful decision from the Sixth Circuit.

Of course, most employment agreements attempting to waive collective action rights will also include mandatory arbitration -- particularly after this decision.  Nonetheless, at least some, like the one in this case, clearly do not. 

At least plaintiff's counsel have one more stone to throw at the arbitration Goliath.

The decision is available here.

Jets Cheerleader Brings Minimum Wage Claim

It appears the Jets do not pay their cheerleaders in compliance with minimum wage laws:

"A former New York Jets cheerleader, alleging pay she received amounted to less than minimum wage and that her out-of-pocket expenses included $45 weekly for hair straightening required by the team, has filed a class action lawsuit against the team.

. . .

She says she was paid $150 per game – but not for others hours of required work – as a member of the New York Jets Flight Crew during the 2012 season. The suit is similar to others filed by cheerleaders against the Oakland Raiders, Cincinnati Bengals and Buffalo Bills." (link)

The Jets cheerleader alleges she was paid only $3.77 an hour for her work. 

The complaint is available here.