Topless Dancers are Employees Too

Many courts falling under the Eleventh Circuit’s authority and others have determined that exotic dancers are employees, not independent contractors.  This determination has been made time and time again, notwithstanding club owners’ clever attempts to contract around the issue by deeming the ladies “independent contractors” when they are hired.  See Thompson v. Linda And A., Inc., 779 F. Supp. 2d 139 (D.D.C. 2011); Clincy v. Galardi South Enterprises, Inc., 808 F. Supp. 2d 1326 (N.D. Ga. 2011); Santelices v. Cable Wiring, 147 F. Supp. 2d 1313 (S.D. Fla. 2001) Harrell v. Diamond A Entertainment, Inc., 992 F. Supp. 1343 (M.D. Fla. 1997); Reich v. Circle C Inv., 998 F. 2d 324 (5th Cir. 1995); McLaughlin v Stineco, Inc., 697 F. Supp. 436 (M.D. Fla. 1988) Robicheaux v Radcliff Material, Inc., 697 F. 2d 662 (5th Cir. 1983).  Nevertheless, some club owners remain undeterred.

Despite plain precedent establishing exotic dancers as employees rather than independent contractors, club owners are hit with mega judgments and forced to settle for millions to cover back wages because they misclassify their dancers.  In Atlanta (which is under Eleventh Circuit authority), the Club Onyx Gentleman’s club recently paid $1.5 million dollars to settle a federal court case brought against it by current and former dancers who had been denied overtime compensation under the guise of being independent contractors.  The settlement was reached after the district judge analyzed the facts of the case against FLSA factors used to determine whether an employment relationship existed.

First and foremost, the judge addressed the amount of control the club exerted over its dancers.  For practical purposes, analysis of the control factor will often suffice to answer the question of whether one is an employee, or an independent contractor.  The more control exerted by the putative employer over the putative employees’ hours or working conditions, the more likely it is that an employment relationship exists under the FLSA.  Another factor addressed by the district judge was the dancers’ opportunities to share in profits and losses based on the dancers’ individual skill sets, and any investments made by the dancers in equipment used on the job such as tassels.  Likewise, the judge determined that the dancer position at Club Onyx did not require a “specialized skill” for which one would typically seek the services of an independent contractor.

The judge also addressed the permanency or stability in the working relationships.  FLSA legal precedent dictates that longer relationships weigh in favor of finding the existence of an employment relationship.  The protracted length of time the dancers worked at Club Onyx weighed in favor of finding that an employment relationship existed there.  Finally, the judge considered whether the services provided by the dancers were an essential component of Club Onyx’s business.  The answer to this question was, presumably, self evident. 

In any event, the judge determined that the dancers were indeed employees, rather than independent contractors, based on a review of the factors outlined above.  The judge’s finding left Club Onyx in a particularly precarious situation.  Aware of the fact that it would be liable for millions in back pay, taxes, and penalties, Club Onyx settled before a final determination was made as to the amount of liability the club faced. 

If you believe that your employer has misclassified you as an independent contractor, regardless of the industry in which you work, or the reasons for the misclassification, contact Birmingham, Alabama minimum wage and overtime pay attorney, Joshua A. Wrady.  The consultation is free of charge, and after thoroughly reviewing your case, you may be entitled to back pay for your employer’s failure to provide you with overtime and/or minimum wage pay.