In another independent contractor case involving exotic dancers (i.e. strippers), a federal judge has ruled that the individuals engaged by a Washington, DC club were employees. This is a significant victory for these employees and marks yet another victory for similarly situated workers in the adult entertainment industry. The case is entitled Thompson v. House, Inc. and was filed in the federal court for the District of Columbia.
The judge ruled that the company, which is a gentleman's club, did in fact control the activities of the dancers sufficiently to evidence an employment relationship, rather than an independent contractor relationship. This ruling settles the liability issue and now the only thing remaining is the calculation of the plaintiffs’ damages.
The plaintiff’s counsel opined that he “would like to think we are effecting positive social change here, but it remains to be seen whether it will have an impact or not..” He hoped that since the company would have to pay damages, it would change the manner in which it treated these individuals, i.e. as employees.
The dancers were paid by the hour (more evidence of control), earned $30-50 per hour (which shows control) and usually worked four shifts of ten hours per week; they had to be on-stage for thirty-minute periods. Some of them earned $300; others earned up to $1000 per shift. The club also maintained a number of work rules that forbade swearing, fighting, biting, scratching, doing drugs or fondling dancers on stage. The employer also compelled the dancers to pay both it and the disc jockey. They were also penalized for calling in sick or being tardy, according to the allegations. If true, these were all indicia of “control,” which cuts against independent contractor status.
The club maintained that it never enforced these policies as well as asserting that the fines were not always recovered. The club further defended by stating it only exercised putative controls which were mandated by the laws of the District of Columbia.
There have been a number of similar lawsuits under the FLSA and I believe virtually all of them have resulted in findings of employee status for the strippers. Here, it was the control element that doomed the employer but if it had overcome that hurdle, the employer would then have had to shown that the dancers were in their own businesses. That is typically the issue on which the employer’s defense founders, as many supposed independent contractors are shown to work only for one entity, meaning that they truly are employees.