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Am I Being Misclassified As An Independent Contractor?

On Behalf of | Jan 7, 2014 | minimum wage violation, overtime time violation |

Overtime Lawyers and Minimum Wage Attorneys Answer: Am I entitled to time and a half for overtime? What should I do if my boss says I’m an independent contractor? Am I an employee?

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Here is my new favorite quote from a judicial decision: “Taking your clothes off on a nightclub stage and dancing provocatively are not the kinds of special skills that suggest independent contractor status.” So held, U.S. District Judge Thomas Thrash Jr. last week in ruling that a class of exotic dancers are employees and cannot be misclassified as independent contractors for the purposes of avoiding paying overtime and minimum wage.

Here are the facts of the case: A class of current and former adult entertainers sued Pin Ups Nightclub, run by The Great American Dream, Inc. (Great name, because every little girl grows up dreaming of the day she can be a stripper, not a Disney princess). Their suit alleged that they have been misclassified as independent contractors, instead of employees; and were wrongfully denied minimum wage and overtime compensation under the Fair Labor Standards Act (“FLSA”). The dancers were not paid any hourly wages and were exclusively compensated by earning tips from customers.

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At the start of the working relationship, the defendants gave the dancers a document called “General Policies and Procedures,” which included rules for appropriate dress and how the dancers were allowed to act while on the main stage and in the “VIP room.” According to these rules, the club’s DJ selected the music that the dancers had to use to perform. If a dancer violated the rules, which were monitored by “house moms,” she would be dismissed. Dancers set their own schedules and could work at other jobs, including other clubs as dancers. Pin Ups settled disputes over the entertainer tip pool and between the dancers and its customers. Pin Ups was responsible for the vast majority of overhead cost and was “primarily responsible for attracting customers to the Club, as decisions about marketing and promotions for the Club, its location, its maintenance, aesthetics, and atmosphere, and food and alcohol availability and pricing are made by Pin Ups.”

The court then clearly set forth the appropriate legal standard:

The FLSA defines “employee” broadly. “Independent contractors,” however, do not fall within that definition. To determine whether a party was an employee or an independent contractor, the Court looks to the “economic reality of the relationship between the alleged employee and alleged employer.” The inquiry focuses on the level of economic dependence. “[T]he final and determinative question must be whether the . . . personnel are so dependent upon the business with which they are connected that they come within the protection of FLSA or are sufficiently independent to lie outside its ambit.” The concept has also been put in terms of whether the individual is ‘in business for herself.

 The Court may consider various factors, such as (1) degree of control, (2) opportunity for profit or loss, (3) investment in equipment or additional personnel required, (4) skill requires, (5) duration, and (6) the extent to which the service is integral to the alleged employer’s business. “[T]hese six factors are not exclusive and no single factor is dominant.” The Court must assess the facts relevant to these factors “through the lens of ‘economic dependence’ and whether they are more analogous to the ‘usual path’ of an employee or an independent contractor.” (citations omitted).

This brings me to another one of my favorite quotes. One of the big questions regarding the debate between independent contractor and employee status is who provides the equipment that is used on the job. Here, in considering this factor, the court found that “Pin Ups also provided … the poles.” Really. The pole was held to be equipment.

Applying the facts to law in this case, the Court held: “It is clear that the Dancers were ‘employees’ under the FLSA. … the entertainer’s economic status is inextricably linked to those conditions over which defendants have complete control.”

As this decision shows, wage and hour issues can be tricky. Simply because an employer calls you salaried employee or an independent contractor, does mean that you are or that you are not entitled to time and a half for overtime.

If you have been denied minimum wages or not paid time and a half for your overtime hours, or even think that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ wage rights under the Fair Labor Standards Act (FLSA) and Ohio wage law. The opportunity to meet directly with a wage and hour lawyer is just a phone call away. Your best choice is not to wait.

Disclaimer:

The wage and hour law materials available at the top of the page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking yourself, “should I be paid for …,” “am I entitled to overtime for …,” or “my employer isn’t paying my for …”, then your best course of action is to contact an Ohio attorney to obtain advice with respect to any particular employment law or FLSA issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Attorney Brian Spitz or any individual attorney.