When my wife took her job at her current employer a bit over a year ago, she was required to sign a Non-Compete Agreement (NCA). It said something to the effect of disallowing her from accepting employment elsewhere in a similar role within a certain geographical area for a year after (and if) she departs the company. It was somewhat disconcerting – after all, we didn’t want to have to move just so she could work if it came to that – but an attorney friend told us not to worry, that those NCA’s weren’t as restrictive as they are made to sound. That all remains to be seen, but for two massage therapists in Las Vegas, a former employer is sticking it to them just for trying to make a living.
Krystal Johnson and Shannon DeLelle had worked as independent contractors for INTU Corporation, the former since the beginning of 2012 and the latter since January of this year. INTU had been contracted by the Bellagio to provide massage therapists for poker tournaments, but the casino recently switched to Professional Massage, Inc. (PMI).
Naturally, Johnson and DeLelle moved over to PMI so that they could continue to work at Bellagio poker tournaments, including the recently concluded World Poker Tour Five Diamond World Poker Classic. INTU would have nothing of it, though, telling the Bellagio that the women had signed a non-compete and could not work for PMI at that venue.
As such, Johnson and DeLelle filed a class-action lawsuit against INTU, saying that the company has run afoul of the Fair Labor Standards Act (FLSA). Basically, they are saying that it is both bullshit and illegal that INTU can stop them from earning a living, especially since they have no option to keep working with INTU if they want to work at the Bellagio.
Here is the text of the non-compete clause:
As a material consideration for Company entering into this Agreement with Contractor, Contractor covenants and agrees that during the term of this Agreement, and for a period of one (1) year following the termination of this Agreement, Contractor shall not directly or indirectly, accept a position (whether as a temporary employee, agency employee, employer, independent contractor, permanent employee, owner, partner, stockholder, or venture participant) with any casino/facility/agency to which Contractor was scheduled to perform the Services by Company. (the “Covenant Not to Compete”).
The complaint claims that this is overly restrictive and places an undue hardship on the massage therapists.
“The Defendant’s customers are casinos and poker rooms within casinos; Mesdames Johnson and DeLelle do not service casinos or poker rooms but, rather, individual and largely random persons within such facilities; the Plaintiffs pose absolutely no competitive threat to the Defendant,” the complaint states.
Interestingly, their lawsuit claims that INTU also controlled the massage therapists’ work so much they were effectively employees and not independent contractors. As an independent contractor myself, I have experience with this; basically whoever I write for can give me some guidance and instruction, but they can’t tell me exactly what to write, when, where, etc. They can’t control my work and “employment” like a real employer can.
The lawsuit says that INTU dictated the massage therapists’ hours, locations, rates, services, vacation time, and payment methods. Sounds like an employer, eh?