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Elizabeth Mays, and all others similarly situate

appellee, v. Midnite Dreams, Inc., doing 

as Shaker’s, and Daniel Robinson, app

___ N.W.2d ___

Filed July 13, 2018. No. S-17-674.

1. 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.

2. Contracts: Public Policy. The determination of whether a contract violates public policy presents a question of law.

3. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

4. 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.

5. 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.

6. ____: ____. 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.

7. 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/07/2018 08:10 AM CDT
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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.

9. 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.

10. Contracts: Public Policy. A contract which is clearly contrary to public 

policy is void.

11. 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.

12. 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.

13. Appeal and Error. On appeal, an appellate court will consider only 

arguments that were both specifically assigned and specifically argued 

in the appellate brief.

14. 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 business.

15. ____: ____. The right of control is the chief factor distinguishing an 

employment relationship from that of an independent contractor.

16. 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 
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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.

17. 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 interstate commerce.

18. 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 interstate activity.

19. ____: ____: ____. 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.

20. ____: ____: ____. 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.

21. 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.

22. ____: ____. 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.

23. ____: ____. 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.

24. 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 
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evidence to prove that his or her employer’s sales were high enough to 

trigger coverage under the act.

25. 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.

26. 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.

27. 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.

28. 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.

Appeal from the District Court for Lancaster County: Sus

I. Strong, Judge. Affirmed in part, and in part reversed a

remanded with direction.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellants.

Kathleen M. Neary, of Powers Law, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, F

Papik, JJ., and Daugherty, District Judg

Funke, J

This 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 Act1 (FLSA) and the Wage and Hour 

1 29 U.S.C. § 201 et seq. (2012 & Supp. IV 2016).
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Act2 (WHA). The district court then awarded damages and 

attorney fees and costs under the FLSA and the Nebraska 

Wage Payment and Collection Act3 (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.

I. BACKGROUND

Shaker’s, 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.

From 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.

While 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 

2 Neb. Rev. Stat. § 48-1201 et seq. (Reissue 2010 & Cum. Supp. 2016).

3 Neb. Rev. Stat. § 48-1228 et seq. (Reissue 2010 & Cum. Supp. 2016).
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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.

The “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.

Mays 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 hour.

Mays 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 

in commerce.

The 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.
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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 denied.

The 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 

this court.4

II. ASSIGNMENTS OF ERROR

The 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.

III. STANDARD OF REVIEW

[1-3] The construction of a contract and the meaning 

of a statute are questions of law which an appellate court 

reviews de novo.5 The determination of whether a contract 

violates public policy presents a question of law.6 An appellate 

4 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

5 Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).

6 Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015).
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court independently reviews questions of law decided by a 

lower court.7

[4] 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.8

[5,6] In a 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.9 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.10

[7] 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.11 An appellate court may, at its 

option, notice plain error.12

IV. ANALYSIS

The appellants’ arguments on appeal can be consolidated 

into the following four issues: (1) Did the court err as a matter 

7 Donut Holdings v. Risberg, 294 Neb. 861, 885 N.W.2d 670 (2016).

8 Williams v. Allstate Indemnity Co., 266 Neb. 794, 669 N.W.2d 455 (2003).

9 Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist., 299 Neb. 114, 907 

N.W.2d 301 (2018).

10 Elting v. Elting, 288 Neb. 404, 849 N.W.2d 444 (2014).

11 Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).

12 In re Robert L. McDowell Revocable Trust, 296 Neb. 565, 894 N.W.2d 810 

(2017).
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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?

1. Mays Was Employee Enti

to Compensati

(a) Agreements Neither Waived Protections 

Afforded to Mays by WHA nor 

Estopped Mays From Asserting 

Rights Under WHA

The appellants contend that because of the agreements 

entered into by the parties, as a matter of law, Mays cannot 

be considered an employee. They argue that the parties’ constitutional right to contract supersedes the policy statement in 

§ 48-1201. This argument, however, relies on a presumption 

that the WHA permits an employee to forfeit the protections 

afforded to him or her by the WHA through contract. The 

appellants fail to cite any authority for their argument that the 

protections of the WHA may be waived, and we find no basis 

for such in the WHA.

Section 48-1201 provides:

It is declared to be the policy of this state (1) to establish a minimum wage for all workers at levels consistent 

with their health, efficiency and general well-being, and 

(2) to safeguard existing minimum wage compensation 

standards which are adequate to maintain the health, 

efficiency and general well-being of workers against the 

unfair competition of wage and hours standards which do 

not provide adequate standards of living.

[8-10] The policy statement in § 48-1201 is precisely why 

parties may not contract away the protections afforded by the 

WHA. It is the function of the Legislature, through the enactment of statutes, to declare what is the law and public policy 
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of this state.13 And a contract which is contrary to public policy 

is void.14 Accordingly, the agreements are void to the extent 

they defined the parties’ employment relationship, under 

§ 48-1202(3).

[11] To the extent the appellants challenge the constitutionality of the WHA, we do not reach this argument. Neb. Ct. 

R. App. P. § 2-109(E) (rev. 2014) requires that a party challenging a statute’s constitutionality file and serve notice with 

the Supreme Court clerk at the time of filing the party’s brief. 

Strict compliance with § 2-109(E) is required in order for an 

appellate court to consider a challenge to the constitutionality 

of a statute.15 A review of the record shows the appellants did 

not file a notice of a constitutional question with the clerk.

[12] The appellants also contend that because Mays profited from the agreements, she is estopped from claiming relief 

as an employee. 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.16 The necessary elements 

of equitable estoppel are as follows:

“As to party estopped, (1) conduct which amounts to a 

false representation or concealment of material facts, or, 

at least, which is calculated to convey the impression that 

the facts are otherwise than, and inconsistent with, those 

which the party subsequently attempts to assert; (2) the 

intention, or at least the expectation, that such conduct 

shall be acted upon by, or influence, the other party or 

other persons; and (3) knowledge, actual or constructive, of the real facts; as to the other party, (4) lack of 

13 Bamford v. Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).

14 Id.

15 Cain v. Custer Cty. Bd. of Equal., 291 Neb. 730, 868 N.W.2d 334 (2015).

16 Williams v. Williams, 206 Neb. 630, 294 N.W.2d 357 (1980).
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knowledge and of the means of knowledge of the truth as 

to the facts in question; (5) reliance, in good faith, upon 

the conduct or statements of the party to be estopped; and 

(6) action or inaction based thereon of such a character as 

to change the position or status of the party claiming the 

estoppel, to his injury, detriment, or prejudice.”17

However, Mays could not have made a false representation or concealment of material facts by entering into the 

agreements the appellants imposed upon her. In addition, the 

appellants could not have relied, in good faith, upon the conduct or statements of Mays, because the agreements cannot 

define the relationship between the parties for the purposes of 

§ 48-1202(3). As a result, Mays cannot be estopped from exercising the rights afforded to her under the WHA.

(b) Court’s Determination Mays Was 

“Employee” Under § 48-1202(3) 

Was Not Clearly Erroneous

[13] While the appellants assigned error to the district 

court’s determination that Mays was an “employee,” the court 

made the determination under the three separate acts consisting 

of the FLSA, the WHA, and the NWPCA. Because the appellants reference only the 10-factor employee test that the court 

applied to the WHA, we confine our analysis to that determination. On appeal, we will consider only arguments that were 

both specifically assigned and specifically argued in the appellate brief.18

[14] 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 

17 Id. at 637, 294 N.W.2d at 362.

18 Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
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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 business.19

The appellants argue 3 of the 10 factors support a finding 

that Mays would be an independent contractor. Those three 

factors, which include the method of payment, the parties’ 

belief that they were not creating an agency relationship, and 

the extent of control they had over the details of the work, each 

favor a determination Mays was an independent contractor.

While the court did not specifically address the method of 

payment or the parties understanding of their relationship, both 

support an independent contractor finding. Nevertheless, these 

were merely two factors considered in conjunction with the 

other eight factors.

Ordinarily, a party’s status as an employee or an independent contractor is a question of fact.20 In this matter, there is 

a factual question regarding what the “house rules” were and 

whether they were mandatory or were merely suggestions. As 

a result, we review the court’s determination that Mays was an 

employee as a question of fact. In reviewing the court’s factual 

determinations, we do not reweigh the evidence but consider it 

in the light most favorable to Mays.

19 Allstate Indemnity Co., supra note 8, 266 Neb. at 801, 669 N.W.2d at 

461-62.

20 Id.; Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997).
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[15] The court’s decision strongly relied on a finding that 

the “house rules” imposed on Mays controlled almost every 

aspect of her employment. The court correctly noted that the 

“right of control is the chief factor distinguishing an employment relationship from that of an independent contractor.”21

As the district court also noted, the appellants were in the 

business of operating a club which offered fully nude, live 

entertainment. Mays’ work was a vital part of that regular 

business. In addition, the appellants instituted the “house 

rules,” which significantly controlled the manner in which the 

dancers performed their work, including the dancers’ movement on stage and inside the club, the type of dress worn 

by the dancers, the dancers’ cleaning duties, their schedule 

of performing, their contact with customers, the rates they 

charged, the method of payment, their cell phone usage, the 

types of lotions they used, the music they danced to, and 

their attendance at mandatory meetings. Further, the appellants 

meted out penalties for violations of the “house rules,” which 

included monetary fines, relegation to less desirable time slots, 

and verbal reprimands.

The appellants’ argument that they did not control the means 

and methods of the dancers’ performances is not supported by 

the record, does little to undercut the well-reasoned analysis 

of the court, and fails to address the existence of the “house 

rules.” In addition, the appellants have provided no basis for 

finding the court’s determination that Mays was an “employee” 

entitled to a minimum wage, under the WHA, clearly erroneous. Therefore, we find these assignments of error to be without merit.

(c) Appellants Failed to Properly 

Raise Issue of Robinson’s 

Personal Liability

The appellants argue in their brief that the evidence clearly 

shows Midnite Dreams, and not Robinson, was Mays’ employer 

21 See Kime, supra note 20, 252 Neb. at 414, 562 N.W.2d at 711.
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and that the court improperly pierced the corporate veil without 

legal basis to make Robinson personally liable. They provide 

no support for their implication that an owner of a company 

may be liable under employment laws for wages only if the 

corporate veil may be pierced, which the court explicitly 

rejected in its order on the motion for rehearing. Further, the 

appellants failed to assign error to the court’s determination 

that Robinson was one of Mays’ employers and, therefore, was 

jointly liable for her wages.

As mentioned above, we will consider only arguments that 

were both specifically assigned and specifically argued in the 

appellate brief. The trial court ruled Robinson was an employer 

based on his direct role at Shaker’s, not merely through his 

role as the owner of Midnite Dreams. Therefore, we do not 

consider this argument.

2. Mays Failed to Pro

FLSA App

[16] The FLSA requires employers subject to its provisions to pay each employee engaged 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.22

Any employer who violates these requirements is liable to each 

employee in the amount of his or her unpaid minimum and 

overtime wages, an additional equal amount as liquidated damages and reasonable attorney fees and costs.23

The trial court found that under the FLSA, the appellants 

were liable to Mays for minimum wage, without any tip credit; 

overtime wage compensation; liquidated damages; and attorney 

fees and costs. The appellants argue the court erred in certain 

determinations of its liability under the FLSA.

22 Banks v. Mercy Villa Care Center, 225 Neb. 751, 407 N.W.2d 793 (1987). 

See 29 U.S.C. §§ 206 and 207.

23 See 29 U.S.C. § 216(b).
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[17] Nevertheless,

[t]o recover for minimum-wage or overtime violations 

under the FLSA, a plaintiff-employee must demonstrate 

that either (1) his employer is an “enterprise engaged in 

commerce or in the production of goods for commerce” 

or (2) the plaintiff himself has “engaged in commerce or 

in the production of goods for commerce” in his capacity 

as an employee.24

The FLSA defines commerce as meaning “trade, commerce, 

transportation, transmission, or communication among the 

several States or between any State and any place outside 

thereof.”25 In short, commerce, as used in the FLSA, means 

interstate commerce.26

[18-20] Accordingly, “[o]ne of the ‘basic elements’ necessary to showing an entitlement to relief under the FLSA is that 

‘the work involved interstate activity.’”27 “The burden is on the 

employee to prove a sufficient nexus to interstate commerce as 

an essential element of the claim.”28 Similarly, we have held 

that “[w]ithout at least some minimal showing as to the [parties’] relationship to interstate commerce, the [FLSA] cannot 

be said to apply” as a matter of law.29

Neither the parties nor the court addressed this element of 

Mays’ FLSA claims. Therefore, before addressing the merits of 

the award of unpaid minimum and overtime wages, liquidated 

damages, and reasonable attorney fees and costs, we consider 

24 Helfand v. W.P.I.P., Inc., 165 F. Supp. 3d 392, 396 (D. Md. 2016), citing 

29 U.S.C. §§ 206(a) and 207(a)(1). Accord Martinez v. Petrenko, 792 F.3d 

173 (1st Cir. 2015).

25 29 U.S.C. § 203(b).

26 See Banks, supra note 22.

27 Martinez, supra note 24, 792 F.3d at 179.

28 Id. at 175. See, also, e.g., Sobrinio v. Medical Center Visitor’s Lodge, Inc., 

474 F.3d 828 (5th Cir. 2007), citing Warren-Bradshaw Co. v. Hall, 317 

U.S. 88, 63 S. Ct. 125, 87 L. Ed. 83 (1942).

29 Fisbeck v. Scherbarth, Inc., 229 Neb. 453, 469, 428 N.W.2d 141, 151 

(1988), citing Banks, supra note 22.
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whether Mays made a sufficient showing to entitle her the protections of the FLSA as a matter of law.

As a dancer, Mays was not engaged in the production 

of goods in commerce. Instead, we limit our consideration 

to whether Mays engaged in commerce or whether Midnite 

Dreams was an enterprise engaged in commerce. The facts 

capable of establishing coverage under both of these theories 

are different. “To establish individual coverage, the employee 

must present facts showing his own activities. To establish 

enterprise coverage, the employee instead must present facts 

showing the activities of other employees, and the employer’s sales.”30

(a) Evidence Does Not Show Mays 

Was Engaged in Commerce

[21,22] “The question whether an employee is engaged ‘in 

commerce’ within the meaning of the [FLSA] is determined 

by practical considerations, not by technical conceptions.”31

“‘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.’”32 “The [U.S.] Supreme Court 

has articulated that it is the intent of Congress to regulate 

only activities constituting interstate commerce, not activities merely affecting commerce.”33 “Work that is purely local 

30 Martinez, supra note 24, 792 F.3d at 175.

31 Mitchell v. Vollmer & Co., 349 U.S. 427, 429, 75 S. Ct. 860, 99 L. Ed. 

1196 (1955). See, also, e.g., Wirtz v. Modern Trashmoval, Inc., 323 F.2d 

451 (4th Cir. 1963).

32 Mitchell v. H. B. Zachry Co., 362 U.S. 310, 324, 80 S. Ct. 739, 4 L. Ed. 

2d 753 (1960). See, also, e.g., Josendis v. Wall to Wall Residence Repairs, 

Inc., 662 F.3d 1292 (11th Cir. 2011); Williams v. Henagan, 595 F.3d 610 

(5th Cir. 2010); Wirtz, supra note 31.

33 Thorne v. All Restoration Services, Inc., 448 F.3d 1264, 1266 (11th Cir. 

2006), citing McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 87 L. Ed. 

1538 (1943).
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in nature does not meet the FLSA’s requirements, but ‘[a]ny 

regular contact with commerce, no matter how small, will 

result in coverage.’”34

[23] The 11th Circuit Court of Appeals has espoused the 

following test to determine if an employee is engaged in 

commerce:

[F]or an employee to be ‘engaged in commerce’ under 

the FLSA, he must be directly participating in the actual 

movement of persons or things in interstate commerce by 

(i) working for an instrumentality of interstate commerce, 

e.g., transportation or communication industry employees, 

or (ii) by regularly using the instrumentalities of interstate 

commerce in his work, e.g., regular and recurrent use of 

interstate telephone, telegraph, mails, or travel.35

Regarding the first type of interstate employees, courts 

have further expounded on the actions that qualify as engaging in commerce to include an employee that “either crosses 

state lines in connection with his employment, handles goods 

directly moving in the channels of interstate commerce, or 

directly contributes to the repair or extension of facilities of 

interstate commerce.”36

There is also substantial case law considering the limits of 

this type of interstate employment. The U.S. Supreme Court 

has stated that “handlers of goods for a wholesaler who moves 

them interstate on order or to meet the needs of specified customers are in commerce, while those employees who handle 

goods after acquisition by a merchant for general local disposition are not.”37 Based on this principle, courts have rejected 

claims that an employee operating a vehicle and purchasing 

34 Henagan, supra note 32, 595 F.3d at 621. See, also, 29 C.F.R. § 779.109 

(2017).

35 Thorne, supra note 33, 448 F.3d at 1266, citing 29 C.F.R. §§ 776.23(d)(2) 

and 776.24 (2005). See, also, 29 C.F.R. § 779.103 (2017).

36 Wirtz, supra note 31, 323 F.2d at 457, citing Vollmer & Co., supra note 31.

37 McLeod, supra note 33, 319 U.S. at 494.
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gasoline, both of which were produced out-of-state, was in the 

stream of commerce.38

In Sobrinio v. Medical Center Visitor’s Lodge, Inc.,

39 an 

employee of a motel, connected to a large local medical center, worked in roles as a janitor, security guard, and driver 

for guests. He drove guests on errands to local stores and 

the medical center, but never drove them to the airport or 

other transportation centers. While he served many out-of-state 

guests, the court held he was not engaged in commerce under 

the FLSA, because his duties were purely local in nature.40

It distinguished his transportation duties from those of other 

employees that “engaged in commerce when ‘their work was 

entwined with a continuous stream of [interstate] travel.’”41

Regarding the second type of interstate employees, there 

is less agreement among courts on what activities constitute 

engagement in commerce.

In Jian Long Li v. Li Qin Zhao,

42 the U.S. District Court 

for the Eastern District of New York rejected an argument that 

using a cell phone “‘connecting to phone towers across the 

United States’” amounted to engaging in commerce. In Jian 

Long Li, the plaintiff used a cell phone to contact customers 

in the course of making local deliveries for a New York City 

restaurant. The court ruled “the use of a cellular phone by 

[the plaintiff], but not for communication between states, is 

strictly an intrastate activity, notwithstanding the fact that it 

utilizes interstate technology.”43 It reasoned that while using 

38 Jian Long Li v. Li Qin Zhao, 35 F. Supp. 3d 300 (E.D.N.Y. 2014), citing 

Josendis, supra note 32, and Thorne, supra note 33.

39 Sobrinio, supra note 28.

40 Id.

41 Id. at 829-30 (emphasis in original).

42 Jian Long Li, supra note 38, 35 F. Supp. 3d at 308.

43 Id. at 309, citing Junkin v. Emerald Lawn Maint. & Landscaping, Inc., No. 

04-CV-1537, 2005 WL 2862079 (M.D. Fla. Nov. 1, 2005). See, also, 29 

C.F.R. § 779.103.
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a cell phone, as well as other intrastate activities, may affect 

or indirectly relate to interstate commerce, it would be untenable to conclude that such local activities would lead to FLSA 

coverage without evidence of the communication crossing state 

lines, because it would be “difficult to imagine anyone, in 

this modern day and age, who [would not then qualify for 

FLSA coverage].”44

Two unpublished U.S. District Court opinions have 

addressed what activities of dancers constitute engaging in 

commerce, Miller v. Centerfold Entertainment Club, Inc.45 and 

Foster v. Gold & Silver Private Club, Inc.46 In Miller, the court 

rejected arguments that a dancer was engaged in commerce 

by dancing for out-of-state customers and serving beverages 

produced in another state, but ruled the dancer’s use of music 

streamed over the Internet, text messages to clients, and selfpublication on social media constituted engagement in commerce. In Foster, the court ruled broadcasting dances over the 

Internet was engagement in commerce.

At oral arguments, Mays argued that Robinson’s contracting with dancers from outside Nebraska and scheduling 

them to come to Nebraska and the fact that Mays commuted 

to Nebraska to dance constituted engagement in interstate 

commerce. However, the record is devoid of evidence that 

Robinson communicated with the dancers across state lines 

by using cell phones or the Internet. In addition, as mentioned above, only Mays’ personal activities are relevant to 

analyzing whether she was an employee engaged in commerce. The U.S. Department of Labor regulations explicitly 

distinguish an employee’s personal actions of commuting to 

and from the work place, which do not constitute engaging in 

44 Jian Long Li, supra note 38, 35 F. Supp. 3d at 309.

45 Miller v. Centerfold Entertainment Club, Inc., No. 6:14-CV-6074, 2017 

WL 3425887 (W.D. Ark. Aug. 9, 2017) (unpublished decision).

46 Foster v. Gold & Silver Private Club, Inc., No. 7:14CV00698, 2015 WL 

8489998 (W.D. Va. Dec. 9, 2015) (unpublished decision).
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commerce, from an employee’s traveling across state lines in 

the performance of his or her duties, who must do so consistently to be considered engaged in commerce.47 Further, it has 

been held that an employer’s action of hiring an employee in 

another state and paying for his travel to the state where his 

employment activities were located did not amount to that 

employee’s engaging in commerce, because the relocation 

was unrelated to the employee’s actual duties.48 We decline to 

expand the scope of the FLSA to cover employees based on 

actions performed in their personal capacity with no relation 

to the performance of their employment.

Here, even considering the most liberal standards, the evidence fails to show that Mays engaged in interstate commerce. 

Even the activities the court in Jian Long Li was concerned 

would bring all employees in the modern era under FLSA coverage are not present.

While Robinson testified dancers were free to accept payment by credit card, Mays stated dancers were strictly forbidden from doing so and there was no evidence Mays had ever 

accepted credit card payment. The evidence shows out-of-state 

customers did attend Shaker’s but, as stated in Sobrinio, purely 

local interactions with out-of-state individuals is not an interstate activity.49

Unlike Miller, there was no evidence Mays ever communicated with customers in Nebraska or elsewhere by telephone 

or promoted herself on social media. Also, while the dancers 

could request music, Robinson and the disk jockey exclusively handled playing music and it was not established that 

such music was streamed via the Internet. Therefore, we must 

47 29 C.F.R. § 776.12 (2017). See, also, 1 Les A. Schneider & J. Larry Stine, 

Wage and Hour Law § 4:3 (2018).

48 Oliphant v. Kaser et al., d.b.a. Kaser Construction Co., 10 Lab. Cas. 

(CCH) ¶ 62,928 (Dallas Cty. Dist. Ct., Iowa, No. 16470, Nov. 13, 1945).

49 See Sobrinio, supra note 28.
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conclude that as a matter of law, Mays failed to make even a 

minimal showing she engaged in commerce.

(b) Evidence Does Not Show 

Midnite Dreams Was Enterprise 

Engaged in Commerce

The FLSA defines an “‘[e]nterprise engaged in commerce or 

in the production of goods for commerce’” as, in relevant part, 

an enterprise that

(A)(i) has employees engaged in commerce or in the 

production of goods for commerce, or that has employees 

handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce 

by any person; and

(ii) is an enterprise whose annual gross volume of 

sales made or business done is not less than $500,000 

(exclusive of excise taxes at the retail level that are separately stated).50

[24] FLSA coverage through enterprise coverage is particularly expansive compared to individual coverage based on the 

broad definition of how an employee may engage in commerce 

in § 203(s)(1)(A)(i).51 Congress, however, curbed this potentially limitless definition by including the revenue threshold 

in § 203(s)(1)(A)(i).52 To succeed on a FLSA claim alleging 

enterprise coverage, an employee must elicit “evidence to 

prove that his employer’s sales were high enough to trigger 

coverage under the [FLSA].”53

We need not consider the scope of activities constituting enterprise coverage here, because there was no evidence 

50 29 U.S.C. § 203(s)(1).

51 Helfand, supra note 24; Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339 

(E.D.N.Y. 2015).

52 Helfand, supra note 24.

53 Martinez, supra note 24, 792 F.3d at 175.
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adduced or even an allegation concerning the annual gross 

volume of sales made or business done by Midnite Dreams. 

Therefore, we must conclude that as a matter of law, Mays 

failed to make even a minimal showing Midnite Dreams was 

an enterprise engaged in commerce.

The court’s ruling in favor of Mays on her FLSA claims, 

despite Mays’ failure to prove all of the elements of her claims, 

affected a substantial right of the appellants, and to leave this 

error uncorrected would amount to a miscarriage of justice. 

Therefore, we find plain error in the court’s ruling that Mays 

was entitled to compensation, overtime compensation, no tip 

credit, liquidated damages, and attorney fees and costs under 

the FLSA.

3. Mays Was Tipped Emplo

[25] The court did not explicitly rule whether Mays was 

a tipped employee under Nebraska law. However, unlike the 

FLSA, § 48-1203(2) does not require any prior notification for 

an employee to be a tipped employee. Instead, an employer 

must merely prove the employee received tips sufficient to 

compensate the employee at a rate greater than or equal to the 

minimum wage.

Mays’ evidence that she was compensated by way of gratuities at an average rate of $44 per hour clearly satisfies this 

requirement. Therefore, under § 48-1203(2), Mays was entitled 

to a wage of only $2.13 per hour.

4. Mays Was Not Entitled

Relief Under

The NWPCA requires that absent an exception, “each 

employer shall pay all wages due its employees on regular days 

designated by the employer or agreed upon by the employer 

and employee.”54 Under the NWPCA, “[a]n employee having 

a claim for wages which are not paid within thirty days of the 

54 § 48-1230(1).
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regular payday designated or agreed upon may institute suit for 

such unpaid wages in the proper court.”55 We have summarized 

this cause of action as “essentially permit[ing] an employee 

to sue his or her employer if the employer fails to pay the 

employee’s wages as they become due.”56

“Wages” are defined as “compensation for labor or services 

rendered by an employee, including fringe benefits, when 

previously agreed to and conditions stipulated have been met 

by the employee, whether the amount is determined on a 

time, task, fee, commission, or other basis.”57 Accordingly, we 

have stated that “‘unpaid wages’ means ‘wages which are not 

paid within thirty days of the regular pay day designated or 

agreed upon.’”58

[26] 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.59

[27] As expressed by the preceding provisions, the plain 

language of the NWPCA indicates that the act only applies to 

a situation where a regular payday has been established by an 

employer unilaterally or with the consent of an employee. An 

employee is not granted a cause of action in the case where 

no regular payday has been established and he or she has 

never received payment from his or her employer. Instead, an 

employee denied minimum wage compensation for employment that has no regular payday may only proceed to recover 

under the WHA.60 Further, “wages,” under the NWPCA, is 

55 § 48-1231(1).

56 Pick v. Norfolk Anesthesia, 276 Neb. 511, 516, 755 N.W.2d 382, 386 (2008).

57 § 48-1229(6).

58 Polly v. Ray D. Hilderman & Co., 225 Neb. 662, 670, 407 N.W.2d 751, 

757 (1987).

59 Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).

60 § 48-1206(5).
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expressly limited to a situation where the parties have agreed 

the employer will compensate the employee for performing 

work under the terms of the agreement.

In this case, the evidence shows Mays never received any 

compensation from the appellants. Further, the agreements do 

not contain any provision stating Mays will be paid for performing services as a dancer or cleaner. There is also no evidence the appellants had established a regular payday or that 

Mays had agreed on a certain date for such payment. While 

the court determined that the house rules were a condition 

of employment, that is not sufficient to bring the agreements 

within the scope of the NWPCA.

Therefore, Mays was not entitled to relief under § 48-1231 

of the NWPCA.

While Mays is still entitled to recover minimum wage 

benefits under the WHA, the court’s decision to grant relief 

under § 48-1231 affected a substantial right of the appellants 

by making them liable for attorney fees from this appeal and 

requiring them to defend against the possibility of liability 

for liquidated damages under § 48-1232. Thus, we find the 

court’s ruling that Mays was entitled to minimum wage compensation and attorney fees and costs under § 48-1231 constitutes plain error.

5. Attorney Fe

[28] Because we determine the court erred in awarding 

attorney fees under the FLSA and the NWPCA, we do not 

consider the appellants’ assignment of error regarding whether 

the amount of attorney fees the court awarded to Mays was 

excessive and unreasonable. An appellate court is not obligated 

to engage in an analysis that is not necessary to adjudicate the 

case and controversy before it.61

61 Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 

(2018).
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V. CONCLUSION

We conclude the trial court’s determination that Mays was 

an employee entitled to a minimum wage under the WHA was 

not clearly erroneous, but Mays was entitled to only the minimum wage amount for tipped employees. The WHA may also 

entitle Mays to attorney fees and costs. Nevertheless, the court 

erred in ruling Mays was entitled to 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.

 Affirmed in part, and in part r

and remanded with direc