Poker Massage Therapists File Class Action Against Former Bellagio Service Provider INTU

Two massage therapists formerly working for a third-party massage services firm used until very recently by the Bellagio for its poker events have filed a class-action lawsuit against the third-party firm, INTU Corporation. The lawsuit against INTU alleges violations of the US’s Fair Labor Standards Act (FLSA) and the unlawful imposition of non-compete clauses by INTU that have blocked the pair from working for the new massage service, Professional Massage, Inc. (PMI), now being used at the Bellagio.

The two massage therapists, Krystal Johnson and Shannon DeLelle, formerly worked as independent contractors for INTU, providing services on behalf of INTU at major poker events in Las Vegas and elsewhere. Johnson, a resident of Las Vegas, had worked for INTU since January of 2012, while DeLelle, a Virginia resident, signed with INTU in January of 2018 and frequently traveled to Las Vegas to work major poker events. Johnson, earlier known as Krystal Upham, served as INTU’s massage-therapy manager during poker events at the Belagio.

Both Johnson and DeLelle contracted with PMI, the new massage service used by the Bellagio, planning to work at the recent WPT Five Diamond World Poker Classic. DeLelle, according the class-action complaint, also incurred significant expense in traveling from Virginia to Las Vegas. However, as the WPT event neared its start, they learned that INTU had notified the Bellagio that numerous massage therapists, including Johnson and DeLelle, were bound by the non-compete clause and were thus barred from working for PMI at the Bellagio.

The class action, with Johnson and DeLelle as lead plaintiffs, was filed on December 12 in US District Court for the District of Nevada by attorney Maurice “Mac” VerStandig. VerStandig has frequently represented consumers and employees in gambling-connected legal actions in recent years. The action could presumably include all massage therapists who once worked at the “O” via INTU, which may total a dozen or more.

The class action as filed not only asserts that the non-compete covenant was null and void, but that INTU may have intentionally skirted the definition of a true employer-employee relationship, potentially exposing INTU to larger damages. Regarding Johnson, the former manager of the massage services at the Bellagio, the complaint asserts this:

Though the Johnson Agreement is putatively styled as an independent contractor agreement, Ms. Johnson’s work with the Defendant has been in the nature of an employee/employer relationship at all times relevant, with the Defendant [INTU] dictating:

(i) the hours at which Ms. Johnson is to commence work;

(ii) the hours at which Ms. Johnson is to stop work;

(iii) the location(s) at which Ms. Johnson is to work;

(iv) the rates Ms. Johnson is to charge customers;

(v) the nature of services Ms. Johnson is to furnish to customers;

(vi) the manner and method in which Ms. Johnson is to collect revenue and remit the same to the Defendant; and

(vii) when Ms. Johnson may take vacation time. 

Johnson also received $500/month for her additional duties as lead therapist. DeLille, the other lead plaintiff, received no additional benefits, and both therapists were required by contract to remit 55% of their base fees ($2.00/minute) to INTU, while keeping the other 45% for themselves. The first six points above applied to DeLelle’s contract with INTU as well.

The complaint offers the language of the non-compete clause, which was supposed to last for one year:

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”).

However, the complaint asserts that the above is null and void as a matter of law, since it over-protects INT’s interests and imposes an undue hardship on Johnson, DeLile, and other potential plaintiffs. Undue-hardship claims are frequently used in successful legal arguments attacking over-broad non-compete clauses.

The complaint also asserts that the non-compete clause is by its nature punitive (and perhaps vindictive), since casinos contract with established massage-therapy firms to provide services at poker events. There is no chance that massage therapists could offer their services to potential patrons anywhere on a casino’s property if a contract between a therapist firm and a casino is in effect. As the complaint notes, “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 class action as filed lists two claims for relief. The first is for violations of the US’s federal-level Fair Labor Standards Act; the FLSA was designed to block many forms of workplace abuse. The second claim is for intentional interference with contractual relations, meaning those between Johnson and DeLille and the other massage firm, PMI.

The complaint asks for both unpaid wages and lost wages along with other damages. The complaint also asks the court for authorization to notify other potentially affected members of the class, meaning other massage therapists purported impacted by the imposition of the allegedly illegal non-compete covenant.