Two massage therapists who formerly worked as third-party contractors for Las Vegas-based INTU have filed a class-action lawsuit against the company, alleging that they were illegally restrained from working for other massage providers during major poker and casino events.

One of the lifestyle elements long connected to the live-poker world, the provision and availability of at-the-table massage services, may undergo a labor-based reformation if a class-action lawsuit recently brought against a prominent massage-services provider is successful.

The two massage therapists, Krystal Johnson and Shannon DeLelle, filed their lawsuit against Las Vegas massage-services company INTU on December 12, 2018, citing violations of United States labor laws, including the federal-level Fair Labor Standards Act (FLSA).

The class-action complaint was filed on behalf of the two plaintiffs by veteran labor and gaming attorney Mac Verstandig of the Maryland-based Verstandig Law Firm LLC. Among the actionable claims made in the lawsuit is the allegedly illegal inclusion of a non-compete clause inserted into the contracts of all independent massage therapists who partnered with INTU to provide services at casinos where INTU had obtained a services contract.

That non-compete clause declared that all massage therapists were barred from providing their services to other massage-therapy services for 12 months after the end of their work relationships with INTU. The complaint alleges that such an employment-blocking provision is “null and void,” automatically unenforceable “as a matter of law.” The claim asserts that the?non-compete provision “is greater than is required for the?protection of the Defendant and imposes an undue hardship upon Mesdames?Johnson and DeLelle.”

INTU loses Bellagio contract

The catalyst behind this labor-based lawsuit appears to be INTU’s loss of its massage-services contract at Las Vegas’s Bellagio casino. The lawsuit asserts that INTU lost its contract to offer branded massage-therapy services at the “Bellagio” on or about December 7, 2018. That date was midway through one of the largest poker events held annually at the “O,” the World Poker Tour’s WPT Five Diamond World Poker Classic.

The reason for INTU’s dismissal is not questioned in the lawsuit. However, INTU was immediately replaced as the massage service at the Bellagio by one of its main Las Vegas rivals, Professional Massage, Inc., known as PMI. Since many of the world’s elite poker players seek their favorite massage therapists year after year at the same venue, PMI was willing to and had planned to hire Johnson and DeLelle.

Instead, and in full knowledge that many elite poker players planning to play at the Bellagio seek the same favored therapists repeatedly, INTU served legal notice upon the Bellagio that a large number of therapists formerly under contract to INTU were bound by the 12-month non-compete clause and could not legally work at the Bellagio. Johnson and DeLelle were among the therapists specifically named, and in the face of the provision’s existence — whether enforceable or not — the Bellagio and PMI felt forced to withdraw the offer to Johnson and DeLelle.

According to the complaint, the loss of income was particularly hard on DeLelle, who had traveled across the United States from her Virginia home just for the chance to work the WPT Five Diamond main event, which was just about to begin when INTU was dropped. Word of mouth indicates that between 10 and 15 former INTU therapists were set to be hired by PMI to work the remainder of the Bellagio’s Five Diamond series, and the complaint also asks the court to name all therapists so targeted so they can be contacted as possible members of the class-action group.

Retaliatory conduct, other labor issues

The notice sent by INTU to the Bellagio (and perhaps to rival PMI as well) appears to be a retaliatory tactic designed to damage both PMI’s ability to provide top professional services and the Bellagio’s ability to cater to its high-end poker customers. However, using the third-party massage therapists as a tool may well violate labor and employment regulations in several ways.

The class-action complaint pries open one of those possible areas of violation by asserting that INTU’s designation of all hired therapists as independent contractors was itself a violation of US labor laws, due to the nature of the work demanded. The complaint asserts that all these massage therapists were actual employees of INTU and that they are entitled to considerable extra benefits, back wages and overtime.

The complaint lists numerous specifics indicating that both DeLelle and Johnson were truly employees of INTU, rather than third-party contractors. Particularly in the case of Johnson, who worked with INTU since 2012 and was designated as INTU’s manager of therapy services at the Bellagio, the claims have teeth. Johnson received an extra $500 a month as the Bellagio’ on-site manager for these services, and her contract also had provisions about when she was allowed to take a vacation.

The designation of de facto employees as third-party contractors is a long game practiced by hundreds of thousands of American corporations seeking to save on secondary employment benefits, primarily health insurance, minimum wages, and overtime. Yet when taken to extremes, lawsuits such as the one filed by Johnson and DeLelle are a frequent reaction. In this case, and due to the high popularity of massage therapists on the poker and casino scenes, a successful lawsuit could cause ripples across the entire casino industry.

The Bellagio is owned and operated by MGM Resorts International. INTU’s corporate website shows the company is in partnership with several MGM-owned casinos, including in Las Vegas the Aria, Mandalay Bay, and (according to the lawsuit), the Cosmopolitan. The Bellagio is also still listed as an INTU client even though some days have passed since the suit’s filing earlier this month.