Best Ohio Wage and Hour Attorney Answer: As a dancer at a gentlemen’s club, am I an employee or an independent contractor? Are exotic dancers non-exempt employees under the FLSA? Should I be paid overtime at time and a half?
When someone says the words “strip club” or “gentlemen’s club” you usually get the image of patrons littering the stage with dollar bills as an exotic dancer performs a dance or a patron paying the dancer a one-time cash payment for a private dance or “lap dance”. On the other hand, you might not think about exotic dancers as normal employees of a business, employees who receive wages that are governed by the same state and federal laws that govern your wages. And perhaps like you, the question becomes whether exotic dancers are entitled to different forms of wages, such as overtime compensation?
The Fair Labor Standards Act (FLSA) requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. The FLSA provides that employers who violate the law are liable to the aggrieved employees for their back wages and an equal amount in liquidated damages, plus reasonable attorney’s fees and costs.
Our wage and hour lawyers previously blogged that strippers are employees for wage and hour purposes; and that these exotic dancers cannot be misclassified as independent contractors. The latter blog contained two of my favorite quotes on wage and hour issues. First, U.S. District Judge Thomas Thrash Jr. of the United States District Court for the Northern District of Georgia held: “Taking your clothes off on a nightclub stage and dancing provocatively are not the kinds of special skills that suggest independent contractor status.” Then Judge Thrash, in analyzing who provided the equipment for the job, held that: “Pin Ups also provided … the poles.” Yep, he held that the pole was equipment used by the dancer on the job.
Recently, in Hart v. Rick’s Cabaret Int’l, Inc., a district court in the Southern District of New York, granted a motion for partial summary judgment in the favor of about 2,000 exotic dancers as part of a collective action against Rick’s for unpaid wages from 2005 through 2012. Central to the Court’s decision was the determination that the dancers were employees of the company, not independent contractors as the employer attempted to misclassify them. That finding was extremely significant because as employees the dancers were entitled to added protections under the FLSA, including minimum wage and tip credit regulations.
Specifically, the Court determined that the dancers were employees because the company exercised sufficient control over them in terms of their employment conditions:
Because Rick’s NY stopped using written guidelines in February 2010, the Court has not considered the written Guidelines as such in its analysis of Rick’s NY’s control from that point forward. That said, there is no evidence in the record that the Club, following that point, relaxed its expectations as to the matters (e.g., dancer conduct, dress, time recorded) covered in the Rules. Nor is there evidence that the Club ever informed dancers that the rules contained in the written Guidelines were no longer in effect. Viewing the facts in totality, the Court finds that, even after February 2010, Rick’s NY[] continued to exercise significant control over the dancers. …
The Court did not overlook the fact that Rick’s NY stopped using written guidelines in February 2010; defendants simply disagree with the Court’s conclusion that this single change of circumstance was insufficient to transform the role of the dancers at Rick’s NY from employees to independent contractors. … The Court certainly considered the written guidelines as strong evidence of the degree of control exerted by Rick’s NY over the dancers before February 2010. But the Court also explicitly considered other factors that, it held, also revealed an employer employee relationship. These included the degree of control Rick’s NY exerted over the dancers beyond the Guidelines, Rick’s NY’s dominant opportunity for profit, the limited specialized skill required to be an exotic dancer, and the overwhelming extent to which the dancers were integral to Rick’s NY success. Based on its assessment of all five factors, the Court concluded—and reiterates that conclusion today—that “the five factors lopsidedly favor a finding that the dancers at the Club were employees” both before and after February 2010. …
Explaining the guidelines verbally to a dancer instead of providing them in writing does not make them meaningfully less a means of control…
Other evidence in the record points towards the same conclusion. For instance, as of February 17, 2012, some two years after the written guidelines were dispensed with, there was still in place at Rick’s NY an “entertainer manager” position to supervise the dancers. See Prakash Aff., Ex. 55A: Trapani Dep. at 21. Rick’s NY also continued to employ “house moms,” like Melinda Trapani, to manage the dancers. See Trapani Dep. at 6 (testifying that one of the tasks as a house mom is “enforce[ing] the rules that managers make you enforce”). In her deposition, Tapani detailed some of these rules. They included requiring dancers to dance on stage, to wear long dresses except on certain days, and to clock in when they arrive at the club and to check out with management before leaving for the night. Dancers were also prohibited from using the public bathrooms, getting certain types of nipple piercings, getting tattoos, and chewing gum. Id. This and other evidence canvassed by plaintiffs reveals that Rick’s NY used “entertainer managers” and “house moms” to continue, after February 2010, to enforce the substance of the guidelines, thereby controlling dancers’ attire, looks, and behavior. (citations omitted).
Personally, when you are getting down to a level of control of whether an employee can or cannot pierce their nipple, it will be hard for a company to successfully argue that it is not an employer.
Given this ruling, as employees, the dancers were entitled to all tips and “gratuities” given by customers. The Court held that “For these reasons, the Court holds, the performance fees paid by customers to the Club’s dancers—whether paid in cash or by reimbursable Dance Dollars—would have been understood by a reasonable customer as a gratuity. Such a customer would not have viewed these fees as ‘being collected in lieu of a gratuity.’” Based on this reasoning, the Court determined that Rick’s unlawfully withheld or retained portions of the gratuities from the dancers, and in doing so, violated minimum wage/tip sharing laws. As a result, the Court granted the motion for partial summary judgment, awarding the dancers damages to the tune of $10,866,035.
Moreover, this damages award may not be the end for Rick’s. Rather, since this was just a partial summary judgment, the rest of the case may proceed to trial for determination of whether the dancers are entitled to further damages.
If you believe that your employer is not paying you all of your wages, paying you less than minimum wage, unlawfully deducting money from your paycheck, not paying you time and a half for overtime, or is otherwise cheating you out of wages requires contact the minimum wage violation lawyers and overtime claim attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. You may have a claim under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your wage and hour pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
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