Two stories from the National Club Association’s newsletter focus on lawsuits clubs are facing. In South Florida, a former employee is suing an unidentified club for not paying overtime wages, which hinges on whether the plaintiff was a nonexempt employee. In Auburndale, Mass., a disability discrimination lawsuit filed by a non-member will hinge on whether the club is a truly private facility or a public accommodation.
In two recent legal news items, the National Club Association details one club’s issues with overtime wages for nonexempt employees and another club’s status as a private facility.
An unidentified private club in South Florida is the subject of a new lawsuit by a former employee who claims that the club did not pay him the overtime wages he was rightfully owed. The plaintiff worked as a sous chef at the club from October 2014 to May 2015 and was classified as a nonexempt employee, according to the plaintiff.
The former sous chef alleges that he worked more than 40 hours a week but was not properly compensated due to the club’s decision to refuse to issue overtime pay. The suit claims the club also failed to keep proper time records, as required by the Fair Labor Standards Act, NCA reported.
Making matters more complicated for the club, the plaintiff is seeking to lead a group of employees in this case that also allegedly did not receive owed overtime pay.
This case hinges on whether the plaintiff was a nonexempt employee or not. Although the case has yet to be heard, this proves to be a cautionary tale for clubs that have nonexempt employees especially as the new overtime rule is expected to be released sometime in 2016. Under current law, salaried employees making at least $455 per week ($23,660 per year) and who meet the requirements under the “primary duty” test are exempt from overtime compensation. Under the Department of Labor’s (DOL’s) proposed rule, the minimum salary would increase to $970 per week ($50,440 per year) or the 40th percentile of weekly earnings for full-time salaried employees in the U.S., NCA reported.
The proposed overtime rule poses several challenges to clubs, such as its failure to account for differences in costs of living, automatic salary threshold increases and variable employee schedules. With an uncertain implementation date, clubs should prepare for the rule change today, the NCA recommends. Clubs should reevaluate their relationships with their exempt employees and clearly define employees’ roles and duties to comply with the regulation.
Clubs should also be aware of the increased scrutiny regarding overtime by DOL and the nation as a whole. The recent movement for increased employee pay and benefits is considerable as issues such as paid sick leave, minimum wage and others have gained more prominence, NCA reported.
In another NCA brief, a complaint was filed in federal court in Massachusetts in November by well-known former local sportscaster Robert Lobel against a local club at which the plaintiff is not a member. The lawsuit, Robert Lobel v. Woodland Golf Club of Auburndale, is based on the Americans with Disabilities Act (ADA) and claims that the club (where he is a frequent guest) should allow him to use a “specialized handicapped golf cart” on the club’s golf course, specifically including on its greens and in bunkers. Lobel also alleges violations of Massachusetts’ Civil Rights Act, Equal Rights Act and public accommodation laws.
The club apparently allows single rider golf carts everywhere else on the course, but sited safety concerns for use in the bunkers and damage concerns for use on the greens. Lobel alleges that the single rider carts do not damage the course; he alleges that he has been allowed to use these carts at other courses “throughout the United States” and that he has been allowed to drive onto tee boxes, greens and bunkers. Lobel mentions access to “bunkers” and “full access” several times in his Complaint. The ADA does not address bunkers although it does address tees, fairways, carts paths and greens. State and local laws in some locations may include requirements beyond federal law, NCA reported.
Although Woodland is a “private club,” the plaintiff alleges that it is actually a public accommodation and subject to the ADA and other laws because it solicits public use of its facilities. Lobel alleges that “they host, sponsor, solicit and allow members of the general public access to the club and golf course for charity and corporate golf events, private banquets, corporate gatherings, private parties and weddings.” He states that through its public website the club solicits corporate outings, weddings and other events for nonmembers. The plaintiff alleges that by “soliciting business from non-members into and onto the premises for ‘commercial purposes’’’ the club is a “public” entity and thus subject to the ADA. Therefore, because the ADA is applicable, he alleges the club must allow him access on his SoloRider or similar golf cart. It is not clear from the complaint whether Lobel has arranged for his own carts but the Complaint expressly alleges that, as a public accommodation, Woodland must provide the “specialized handicapped golf cart.”
Lawyers are already talking publicly about the impact this case will have on other “private” clubs. Some in the industry have weighed in that these golf carts are specially engineered to distribute the forces and they actually impact the course less than one bad golfer. Others argue that the club rightly evaluates the potential risks—property damage and bodily injury. Depending on the club’s location, these risks can be mitigated to greater and lesser degrees with a proper release agreement signed by the golfer. A release might be more effective in cases where the golfer is injured himself, but there would likely be factual disputes if the club claimed the cart caused damage to the golf course, NCA reported.
For those clubs that do operate in a purely private manner, it can choose to a much greater degree how and to what extent it will provide a warm welcome to its members and guests who have physical challenges. If Woodland (or any other club) has failed to protect its purely private status, it may have lost the opportunity to choose, NCA reported.