Stripping Dancers of Employee Rights

Who wants to talk about the depressing election results and the probable effect on labor?  Not me.  Let's talk about strippers instead. 

Some people argue that exotic dancers are "exploited" by men.  While an argument can be made that the dancers are actually exploiting the men who pay to see them dance, the real exploitation comes at the hands of the club owners.  There is a long history of club owners taking tips, making dancers pay "house fees" to dance, and classifying dancers as independent contractors to avoid things like taxes, workers compensation, overtime, and unionization.

A class action lawsuit in New York seeks to stop some of these expolitive practices.  In a recent ruling, the judge overseeing the case ruled that dancers can bring a class action lawsuit against the Penthouse Executive Club for violations of the Fair Labor Standards Act ("FLSA").   The dancers are claiming that he club violated the FLSA Act by failing to pay them minimum wages and overtime, for illegally charging them a "house fee" to dance, for stealing tips by taking 20% of the haul, and for failing to reimburse dancers for their uniforms (such as they are) as is required by New York law.  The club is defending the suit by claiming that the dancers are "independent contractors."  The judge held preliminarily that the dancers qualified as a "class" for purposes of bringing a class action.

Exotic dancers have for years been classified by employers as "independent contractors" rather than employees so that the employer can avoid the niceties of providing workers compensation, paying overtime, nad avoiding unionization.  The NLRB has not been friendly to exotic dancer's claims that they are employees under the National Labor Relations Act.  Jonbruni Inc. 337 NLRB No. 35 (2001).  However, the handful of federal courts to look at the issue have held that exotic dancers are employees, not independent contractors.   See Morse v. Dancer's Showclub, 2010 U.S. Dist. Ct. LEXIS 55636 (June 4, 2010). 

Classfying workers as independent contractors is a familiar employer dodge.  Though it's unlikely to go anywhere now, the Employee Misclassification Protection Act would amend the FLSA to require employers to keep records of non-employees who perform services, and would also provide for penatlties for misclassifying workers. 

Unions have tried to organize dancers, mostly without success, either due to lack of interest, or employer intimidation.  there is a unionized group of dancers in San Francisco, who belong to the Exotic Dancers Union, an affiliate of SEIU Local 790.  While a couple of NLRB decisions held that dancers were independent contractors, I think the current NLRB would be a lot more sympathetic to arguments that such workers are employees. 

It's too early to tell whether the dancers at Penthouse Executive Club will be successful in their FLSA claim.  Regardless of whether they prevail, it's heartening to see at least one group of workers standing up for themselves.