On the ninth day of Christmas my true love gave to me, nine ladies dancing—and all I had to say to that gift was how, in fact my love, did you classify these individuals? Did you classify them as employees or independent contractors?
Over the last few years the federal Department of Labor as well as state Departments of Labor across the country have been focusing in on misclassification of workers. Both the New Hampshire and Maine definitions of independent contractors have been updated in the past few years and Plaintiff’s counsel is taking note of employers’ lag in updating their classification policies. One industry that is especially seeing the effects is exotic dancing.
Earlier this month, the California Court of Appeals reversed and remanded a trial court’s refusal to certify a class of exotic dancers who worked in an “adult entertainment club” in North Hollywood inSalazar v. Victory Entm’t, Inc. The dancers allege they were misclassified as independent contractors in violation of California wage and hour laws and the Court of appeals found that the trial court had used the wrong standard in determining whether the dancers met the definition of “employee” under recent applicable wage orders.
In Coronado v. D N.W. Houston, Inc., a group of exotic dancers in Texas filed a lawsuit again claiming they were improperly classified as independent contractors. On November 24, 2014, a Southern District of Texas judge permitted a number of employees or former employees to opt-in to the action even though the 60-day cutoff period set by the Court for joining the action had already expired.
On November 14 of this year, a federal judge in New York awarded $10.8 million in damages to approximately 1,900 exotic dancers who were members of a class action alleging that a Manhattan strip club had improperly classified them as indendent contractors, not employees. The settlement in Hart v. Rick’s Cabaret Int’l, Inc., came over a year after the court had held that the dancers were employees and therefore were entitled to protection under the FLSA and New York Labor Law.
In the Southern District of Florida, in Espinoza v. Galardi S. Enters., Inc., conditional certification was recently granted to a class of exotic dancers who were again claiming that they were misclassified as independent contractors and not employees.
These cases serve as only a sampling of wage and hour rulings involving exotic dancers that have come down in the last two months. While we recognize that most of our clients and friends do not find themselves in the “adult entertainment” industry this is a good time to brush up on the definitiion of independent contractors and how the classification can affect your business.
- Are you Making Informed Independent Contractor Decisions?
- To Be an Employee or Independent Contractor . . . That is the Question
- Can “Misclassified” Workers Sue Third-Party Employers for Wage & Hour Violations?
Accordingly, as we find ourselves in the midst of the holiday season, please dance to your hearts content, but if you’re employing dancers, make sure you are properly classifying them.