From Bloomberg BNA — “[C]ourts evaluating exotic dancers’ misclassification cases typically examine the business relationship itself, rather than relying solely on labels the parties choose to characterize their agreement.
Much of the time, courts give great weight to the amount of control a club has over work schedules and conditions, especially in Fair Labor Standards Act lawsuits premised on the six-factor economic realities test, practitioners said.
Under this six-factor test, federal judges determine whether an employment relationship exists by considering:
- the degree of control that the putative employer has over the manner in which the work is performed;
- the worker’s opportunities for profit or loss dependent on his managerial skill;
- the worker’s investment in equipment or material or his employment of other workers;
- the degree of skill required for the work;
- the permanence or duration of the working relationship; and
- the degree to which the services rendered are an integral part of the putative employer’s business.
Applying the economic realities test, federal courts in New York, Maryland and Georgia have found on summary judgment that clubs are liable as employers to exotic dancers for minimum wage and other compensation (Hart v. Rick’s Cabaret Int’l, 967 F. Supp. 2d 901, 21 WH Cases2d 1230 (S.D.N.Y. 2013); Butler v. PP&G, Inc., D. Md., No. 13-430, 11/7/13; and Clincy v. Galardi South Enters., Inc., 808 F. Supp. 2d 1326, 18 WH Cases2d 245 (N.D. Ga. 2011)).
But under this same test, a federal district court in Arkansas declined to grant summary judgment to dancers in January because factual questions arose as to the first three prongs of the test (Cruthis v. Vision’s, E.D. Ark., No. 4:12-cv-00244, partial summary judgment to plaintiffs denied 1/24/14). That same court in 2012 granted summary judgment to another strip club based on evidence that dancers retained significant control over the manner in which their performances were conducted, invested significantly in equipment and materials used in performances, possessed and exhibited special skills even though these didn’t require certification and were free to work for competitors (Hilborn v. Prime Time Club, Inc., E.D. Ark., No. 4:11CV00197, summary judgment granted 7/12/12).”
Read the full story at More Exotic Dancers’ Misclassification Suits Dispute Clubs’ Business Model
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