Are strippers entitled to minimum wage?

Are Strippers Entitled to Minimum Wage?

 The dancers at Tattletales, the same one immortalized in the Motley Crue song, Girls, Girls, Girls, in Atlanta, Georgia are seeking to be paid minimum wage pursuant to the Fair Labor Standards Act. [1]  According to the  http://www.ajc.com/news/news/dancers-sue-ne-atlanta-strip-club-alleging-labor-v/ncnSQ/ Atlanta Journal Constitution  three dancers from the Atlanta strip club are suing the owners alleging that they have not been paid minimum wage and have actually had to pay the club each night for the privilege of working.

 The Tattletales complaint alleges that the dancers are paid no wages, no overtime, are provided no breaks and were required to pay other members of the Tattletales staff.  These fees which all dancers were required to pay included 20% of all their tips to the DJ, $20 to the house mom, $10 to the doorman and a per shift fee of $30-$50 or 10% of the dancer’s tips.  Additionally, all dancers were required to sell a certain number of drinks per shift and were fined $10 per drink for each drink under their quota. 

 A federal judge in Atlanta has already heard another case involving similar allegations for another Atlanta area strip club.  The federal judge ruled that the strip club owed its very existence to the dancers and the ruled that the dancers were employees entitled to minimum wage, overtime and were not subject to the fines and other assessments that the strip clubs levied on the dancers.

 Who is Entitled to Minimum Wage?

 The Wage and Hour Division of the U.S. Department of Labor regulates The Fair Labor Standards Act (FLSA) which establishes minimum wage, overtime pay, record keeping, and child labor standards that may affect full time and part time workers in private businesses and also State, Federal and local governments.  In order to collect overtime wages, you must be a non-exempt employee, meaning you are entitled to receive overtime pay based on your position and duties.  The focus of the recent spate of strip club litigation focuses on whether dancers are employees or independent contractors.  If the dancers are found to be employees they are entitled to the protections of the FLSA and minimum wage.  In many cases, this determination will require the employer to pay the employee the minimum wage that would have been earned in the preceding three years plus liquidated damages in an equal amount and the employee’s attorney’s fees.  The Penthouse Club in New York recently paid 8 million dollars to its dancers to settle a wage and overtime claim.

 Who is an Employee? 

 The IRS uses a 20 factor test to determine whether an individual is an employee or an independent contractor.  Any claims made by dancers for entitlement to minimum wage will be evaluated pursuant to that 20 factor test.  The 20 factors are described below:

 

 1.      INSTRUCTIONS - If the person is required to comply with the instructions of another about when, where and how work is to be done normally indicates an employer-employee relationship.

 

2.      TRAINING - Training on how work is to be performed indicates and employer-employee relationship.  This would include attendance at company meetings regarding how the business is to be operated.

 

3.      INTEGRATION - When the success of the business is highly dependent upon the worker, it is indicative of an employer-employee relationship.

 

4.    SERVICES RENDERED PERSONALLY - If the services must be rendered personally then presumably the person for whom the work is being performed is interested in the methods used to accomplish the work which indicates an employer-employee relationship.  By way of example true independent contractors can hire employees that will work for them and complete the required work.

 

5.     HIRING, SUPERVISING AND PAYING ASSISTANTS - If the worker hires, pays and controls other workers on the job it indicates a true independent contractor. 

 

6.     CONTINUING RELATIONSHIP - If the worker and business have a continuing relationship it favors employer-employee relationship.

 

7.      SET HOURS OF WORK- If the business sets the hours which are worked by the worker, it favors an employer-employee relationship.

 

8.    FULL TIME REQUIRED- If the worker must devote full time to the business, it favors an employer-employee relationship.

 

9.      DOING WORK ON EMPLOYER’S PREMISES - If the work must be performed on the business premises, it favors an employer-employee relationship.

 

10.  ORDER OR SEQUENCE SET - If the business controls the order or sequence in which work must be accomplished, it favors an employer-employee relationship.

 

11.  ORAL OR WRITTEN REPORTS - If the worker is required to submit regular written or oral reports, it favors an employer-employee relationship.

 

12.  PAYMENT BY HOUR, WEEK, MONTH- Payment by hour, week or month it favors an employer-employee relationship while lump sum per job or straight commission favor independent contractor status.

 

13. PAYMENT OF BUSINESS OR TRAVEL EXPENSES- If the business pays business or travel expenses, it favors an employer-employee relationship.

 

14.  FURNISHING OF TOOLS AND MATERIALS - If the business furnishes the tools and materials necessary to perform the job, it favors an employer-employee relationship.

 

15.  SIGNIFICANT INVESTMENT - If the worker invests in the facilities that are used in the business it indicates an independent contractor relationship.  However, lack of investment indicates a dependence upon the business, which favors an employer-employee relationship.

 

16.  REALIZATION OF PROFIT OR LOSS - A worker that can realize a profit or loss of the business and has real responsibilities for the liabilities of the business indicate an independent contractor relationship.  However, no such liability favors an employer-employee relationship.

 

17.  <strong>WORKING FOR MORE THAN ONE FIRM AT A TIME</strong> - Performing services for many separate unrelated entities at the same time can indicate and independent contractor relationship.  However, it can just as easily represent several separate employer-employee relationships depending upon the circumstances of each.

 

18.  MAKING SERVICES AVAILABLE TO THE GENERAL PUBLIC - The fact that a worker makes their services available to the general public favors an independent contractor relationship.

 

19.  RIGHT TO DISCHARGE - If the business retains the right to dismiss, at will, it indicates a level of control through the threat of dismissal which favors an employer-employee relationship.

 

20.  RIGHT TO TERMINATE - If the worker can quit at any time without incurring liability, it favors an employer-employee relationship.

 These twenty factors were developed by the IRS based upon cases and rulings which determined whether an individual was an employee or and independent contractor. Equal weight is not given to each factor.  The weight given varies depending on the occupation and the factual context in which the services are performed. The twenty factors are designed only as guides for determining whether an individual is an employee. Whether the person or persons for whom the services are performed exercise sufficient control over the individual for the individual to be classified as an employee is the crux of the issue to be decided by the court.

 Are Strippers Employees? 

 That is the big question, but there is no question that there has been a recent shift in the law which indicates that depending upon the circumstances courts will consider dancers to be employees.  These favorable rulings require the owners of those strip clubs to pay the dancers minimum wage, overtime and to stop charging the dancers fees for the privilege of working at their establishment. 

 Contact an Experienced Wage and Overtime Lawyer at The Law Offices of Bobby Jones

 Do you believe that your employer has failed to pay you minimum wage and/or overtime? mailto:hmurphy@bobbyjoneslaw.com Contact an experienced St. Petersburg wage and overtime attorney  at The Law Offices of Bobby Jones today.  When you contact our office we will immediately set an appointment where you will meet your attorney and be provided with his/her personal contact information.  If you do not have transportation or you cannot drive, your attorney will travel to meet you and discuss your case with you. 

 If your boss is not paying you minimum wage, overtime or requiring you to perform work for periods which you are not being paid, you should immediately call an experienced wage and overtime attorney in St. Petersburg at The Law Offices of Bobby Jones at (727) 571-1333 during regular business hours or (727) 753-8657 on weekends or after regular business hours. We will evaluate your case for free and you will never pay us a dime unless we recover compensation for your injuries.

 The Law Offices of Bobby Jones

6570 30^th Avenue North

St. Pete, FL 33710

 http://bobbyjoneslaw.com/overtime-and-wage-claims/">  

 References:

  [1]  http://www.ajc.com/news/news/dancers-sue-ne-atlanta-strip-club-alleging-labor-v/ncnSQ/