Contracts: Statutes: Appeal and Error. The construction of a
contract and the meaning of a statute are questions of law
which an appellate court reviews de novo.
Contracts: Public Policy. The determination of whether a
contract violates public policy presents a question of law.
Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
Employer and Employee: Independent Contractor: Master and
Servant. Ordinarily, a party's status as an employee or
an independent contractor is a question of fact. However,
where the facts are not in dispute and where the inference is
clear that there is, or is not, a master and servant
relationship, the matter is a question of law.
Judgments: Appeal and Error. In a bench trial of a law
action, the trial court's factual findings have the
effect of a jury verdict, and an appellate court will not
disturb those findings unless they are clearly erroneous.
__ . In reviewing a judgment awarded in a bench trial of a
law action, an appellate court does not reweigh evidence, but
considers the evidence in the light most favorable to the
successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable
inference deducible from the evidence.
Appeal and Error: Words and Phrases. Plain error exists where
there is an error, plainly evident from the record but not
complained of at trial, which prejudicially affects a
substantial right of a litigant and is of such a nature that
to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and
fairness of the judicial process.
Neb. 486] 8. Contracts: Wages. The policy statement in Neb.
Rev. Stat. § 48-1201 (Reissue 2010) precludes parties
from avoiding the protections of the Wage and Hour Act, Neb.
Rev. Stat. § 48-1201 et seq. (Reissue 2010 & Cum.
Supp. 2016), by contractual agreement.
Statutes: Legislature: Public Policy. It is the function of
the Legislature, through the enactment of statutes, to
declare what is the law and public policy of this state.
Contracts: Public Policy. A contract which is clearly
contrary to public policy is void.
Constitutional Law: Rules of the Supreme Court: Notice:
Statutes: Appeal and Error. Strict compliance with Neb. Ct.
R. App. P. § 2-109(E) (rev. 2014) is required in order
for an appellate court to consider a challenge to the
constitutionality of a statute.
Estoppel. The doctrine of equitable estoppel is based upon
the principle that one who has previously taken a position
with reference to a transaction and thereby obtained a
benefit from the other party cannot thereafter take an
inconsistent position which would result in prejudice to the
party who relied on the original position.
Appeal and Error. On appeal, an appellate court will consider
only arguments that were both specifically assigned and
specifically argued in the appellate brief.
Employer and Employee: Independent Contractor. No single test
exists for determining whether one performs services for
another as an employee or as an independent contractor, and
the following factors must be considered: (1) the extent of
control which, by the agreement, the employer may exercise
over the details of the work; (2) whether the one employed is
engaged in a distinct occupation or business; (3) the type of
occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer or
by a specialist without supervision; (4) the skill required
in the particular occupation; (5) whether the employer or the
one employed supplies the instrumentalities, tools, and the
place of work for the person doing the work; (6) the length
of time for which the one employed is engaged; (7) the method
of payment, whether by the time or by the job; (8) whether
the work is part of the regular business of the employer; (9)
whether the parties believe they are creating an agency
relationship; and (10) whether the employer is or is not in
__ . The right of control is the chief factor distinguishing
an employment relationship from that of an independent
Federal Acts: Employer and Employee: Wages. The Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (2012 & Supp.
IV 2016), requires employers subject to its provisions to pay
each employee engaged [300 Neb. 487] in commerce or in the
production of goods for commerce, or who is employed in an
enterprise which is engaged in commerce or in the production
of goods for commerce, specified wages for all hours worked,
certain of which are to be compensated at overtime rates.
Federal Acts: Employer and Employee: Words and Phrases.
Commerce as used in the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (2012 & Supp. IV 2016), means
Federal Acts: Employer and Employee: Proof. One of the basic
elements necessary to showing an entitlement to relief under
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(2012 & Supp. IV 2016), is that the work involved
Under the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (2012 & Supp. IV 2016), the burden is on the
employee to prove a sufficient nexus to interstate commerce
as an essential element of the claim.
__:__:__. Without at least some minimal showing as to the
parties' relationship to interstate commerce, the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (2012 &
Supp. IV 2016), cannot be said to apply as a matter of law.
Federal Acts: Employer and Employee. The question whether an
employee is engaged in commerce within the meaning of the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (2012
& Supp. IV 2016), is determined by practical
considerations, not by technical conceptions. The test is
whether the work is so directly and vitally related to the
functioning of an instrumentality or facility of interstate
commerce as to be, in practical effect, a part of it, rather
than isolated local activity.
__ . Work that is purely local in nature does not meet the
requirements of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (2012 & Supp. IV 2016), but any
regular contact with commerce, no matter how small, will
result in coverage.
__:__. For an employee to be "engaged in commerce"
under the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (2012 & Supp. IV 2016), the employee must be
directly participating in the actual movement of persons or
things in interstate commerce by (1) working for an
instrumentality of interstate commerce, e.g., transportation
or communication industry employees, or (2) by regularly
using the instrumentalities of interstate commerce in his or
her work, e.g., regular and recurrent use of interstate
telephone, telegraph, mails, or travel.
Federal Acts: Employer and Employee: Sales: Proof. To succeed
on a Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(2012 & Supp. IV 2016), claim alleging enterprise
coverage, an employee must elicit [300 Neb. 488] evidence to
prove that his or her employer's sales were high enough
to trigger coverage under the act.
Employer and Employee: Wages. Under Neb. Rev. Stat. §
48-1203(2) (Cum. Supp. 2016), an employee is considered to be
a tipped employee if the employer proves the employee
received tips sufficient to compensate the employee at a rate
greater than or equal to the minimum wage.
Statutes: Appeal and Error. Statutory language is to be given
its plain and ordinary meaning, and an appellate court will
not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
Actions: Employer and Employee: Wages. The Nebraska Wage
Payment and Collection Act, Neb. Rev. Stat. § 48-1228 et
seq. (Reissue 2010 & Cum. Supp. 2016), does not grant a
cause of action to an employee in a case where no regular
payday has been established and he or she has never received
payment from his or her employer.
Appeal and Error. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it.
from the District Court for Lancaster County: Susan I.
Strong, Judge. Affirmed in part, and in part reversed and
remanded with direction.
B. Creager, of Anderson, Creager & Wittstruck, PC,
L.L.O., for appellants.
Kathleen M. Neary, of Powers Law, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Daugherty, District Judge.
appeal concerns an order from the Lancaster County District
Court which found that Elizabeth Mays, an exotic dancer with
Midnite Dreams, Inc., doing business as Shaker's, was an
employee entitled to compensation under the federal Fair
Labor Standards Act (FLSA) and the Wage and Hour [300 Neb.
489] Act (WHA). The district court then awarded
damages and attorney fees and costs under the FLSA and the
Nebraska Wage Payment and Collection Act (NWPCA). While
the court's ruling that Mays was an employee under the
WHA was not clearly erroneous, the court erred in granting
Mays relief under the FLSA and the NWPCA. Therefore, we
affirm in part, and in part reverse and remand with direction
to award damages and attorney fees and costs, calculated
consistently with the WHA.
a juice bar featuring all-nude dancers, is owned by Midnite
Dreams and located near Waverly, Nebraska. Shaker's
operates as a "leased" club, meaning it contracts
with dancers to lease them the use of its facilities and the
dancers receive compensation only from customer tips.
Shaker's also directly employs a doorman, wait staff, a
bartender, and a disk jockey. Daniel Robinson, one of the
appellants, manages Shaker's and is the principal owner
and sole corporate officer of Midnite Dreams.
2012 to 2014, Mays danced at Shaker's, under two 1-year
"Independent Artist Lease Agreements" with Midnite
Dreams. Under the agreements, Mays paid a flat nightly fee
for the use of Shaker's stage and dressing room, with
additional fees for each use of the "VIP" or
private rooms. The agreements did not provide that
Shaker's would compensate Mays for any service and did
not contain any schedule or minimum work requirements. The
appellants never provided any compensation to Mays.
dancing at Shaker's, Mays was informed of over 50
additional "house rules," posted at the facility
and orally communicated to the dancers, concerning the
dancers' conduct and the use of Shaker's facility.
Robinson provided inconsistent [300 Neb. 490] testimony as to
whether these rules were mandatory or merely
"suggestions." However, Mays testified that the
house rules were enforced by Robinson and his employees and
that failure to follow the house rules would result in
discipline through belligerent reprimands, impositions of
fines, and threats to terminate the agreements, which were
terminable at will.
"house rules" concerned the dancers' shift
arrival times; hair, makeup, lotion, and dress requirements
for the dancers; the number and order of sets the dancers
performed during a shift; the method of payment the dancers
could accept from customers; cleaning duties; the price the
dancers could charge for private and "VIP" room
dances; off-stage dancer conduct; and conduct during onstage
performances, specifying clothing items the dancers were
expected to remove during certain sets.
prepared a spreadsheet of the dates and hours she performed
at Shaker's from various documents and recollections. She
also calculated her average compensation from customer tips,
after lease fees, while working at Shaker's as $44 per
filed a complaint and an amended complaint against the
appellants seeking unpaid wages, liquidated damages, and
attorney fees and costs under the FLSA and Nebraska law.
Though Mays' amended complaint alleged that the
appellants violated the FLSA and Nebraska law, it contained
no allegations concerning whether Mays had engaged in
commerce or whether Midnite Dreams was an enterprise engaged
court determined Mays was an "employee" entitled to
minimum wage compensation under the FLSA and Nebraska law,
applying the "ABC test" under § 48-1229(1)(a)
through (c) and the 10-factor test under § 48-1202(3).
The court concluded that by instituting and enforcing the
house rules, the appellants transformed Mays into an employee
and themselves into employers. The court also ruled Mays was
not estopped from claiming she was an employee.
Neb. 491] The court determined Mays was entitled to a full
minimum wage rate because, unlike Nebraska Law, the FLSA
required specific notice requirements to count a "tip
credit" against minimum wage requirements. Further, it
ruled the FLSA entitled Mays to overtime compensation and
liquidated damages. The court ruled the appellants were
jointly and severally liable for $7, 586.78 in damages for
unpaid wages, $27, 945 in attorney fees, and $504.70 in
costs. The appellants filed a motion for new trial, which was
appellants perfected a timely appeal. We moved the case to
our docket on our own motion pursuant to our authority to
regulate the caseloads of the Nebraska Court of Appeals and
ASSIGNMENTS OF ERROR
appellants assign, restated and reordered, error to the court
for (1) concluding that a written lease agreement between the
parties created an employment relationship, (2) applying the
FLSA and the WHA policy statements to change the parties'
contractual relationship, (3) failing to find Mays was
estopped from arguing she was an employee, (4) finding Mays
was an employee of the appellants, (5) finding Mays was
entitled to minimum wage compensation, (6) failing to
conclude Mays was a tipped employee, and (7) awarding
excessive and unreasonable attorney fees.
STANDARD OF REVIEW
construction of a contract and the meaning of a statute are
questions of law which an appellate court reviews de
novo. The determination of whether a contract
violates public policy presents a question of
An appellate [300 Neb. 492] court independently reviews
questions of law decided by a lower court.
a party's status as an employee or an independent
contractor is a question of fact. However, where the facts
are not in dispute and where the inference is clear that
there is, or is not, a master and servant relationship, the
matter is a question of law.
bench trial of a law action, the trial court's factual
findings have the effect of a jury verdict, and we will not
disturb those findings unless they are clearly
erroneous. In reviewing a judgment awarded in a bench
trial of a law action, an appellate court does not reweigh
evidence, but considers the evidence in the light most
favorable to the successful party and resolves evidentiary
conflicts in favor of the successful party, who is entitled
to every reasonable inference deducible from the
error exists where there is an error, plainly evident from
the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and
is of such a nature that to leave it uncorrected would cause
a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial
process. An appellate court may, at its option,
notice plain error.
appellants' arguments on appeal can be consolidated into
the following four issues: (1) Did the court err as a matter
[300 Neb. 493] of law in considering whether Mays was an
"employee" when the agreements stated the parties
had a lessee/lessor relationship? (2) Did the court err in
ruling Mays was an "employee"? (3) Did the court
err in ruling Mays was entitled to full minimum wage
compensation? (4) Was the amount of attorney fees awarded to
Mays excessive and unreasonable?
Was Employee Entitled to Compensation
Agreements Neither Waived Protections Afforded to Mays by WHA
nor Estopped ...