COURT: EXOTIC PERFORMER MUST DANCE THE DANCE TO LEAD A CLASS ACTION
An exotic dancer’s effort to certify a class of dancers in a minimum wage suit against an adult night club in California hit a bump and ground to a temporary halt in early October after a federal court determined she could not serve as a class representative.
The named plaintiff in Beachemin v. Tom L. Theaters, Inc. No. SACV 11-0394-DOC (C.D. Cal. Oct. 6, 2011), who went by the pseudonym “Ms. Behaved,” apparently didn’t “misbehave” enough at the club, Fantasy Topless in Colton, California, to become a member of the class she wished to represent. In a tentative order, the court denied class certification after the defendants argued that Beauchemin had only auditioned for a spot at the club and had performed only one dance for less than three minutes.
Beauchemin brought the suit against Fantasy Topless and its owners alleging that they had misclassified their dancers as independent contractors, failed to pay them minimum wage in violation of the Fair Labor Standards Act and California law and forced the dancers to share their tips with management.
This case is one in a series of class actions that exotic dancers have pressed against adult night clubs alleging claims under FLSA and state minimum wage laws. For the most part, exotic dancers have been successful in their legal quests. For example, the Northern District of Georgia in September held that a group of nude dancers at a club in Atlanta were wrongly classified as independent contractors and should have been classified as employees under the FLSA, entitling them to minimum wage and overtime compensation. See Clincy v. Galardi South Enterprises, Inc., No. 1:09-CV-2082-RWS (N.D. Ga. Sept. 7, 2011).
The California court in Beauchemin, however, noted that Beauchemin could not serve as a class representative because she failed to satisfy both the typicality and adequacy prongs of Federal Rule of Civil Procedure 23. The court by no means dropped the final curtain on the strippers’ class action show. The court noted that another member of the class could step into the limelight to lead the class to certification.
Cases involving exotic dancers are resulting in the creation of a body (no pun intended) of case law involving independent contractor status. In the years ahead, we can expect to see these holdings applied to more mainstream employers. The Beauchemin case is notable as part of this trend, but also because it is a relatively uncommon case in which certification is denied due to a lack of adequacy of representation.
The Bottom Line: Even potentially good class action claims need viable lead plaintiffs. Courts will give the plaintiffs leeway to find a suitable plaintiff if the initial representative is found to be inadequate.