Despite portraying entertainers as non-employees on paper, club owners often treat them as employees in practice. Courts who have examined the employment relationship between adult entertainers and their employers frequently apply the Economic Realities Test to determine whether the entertainers qualify as employees under the Fair Labor Standards Act. Many courts have found the majority of factors weighing in favor of finding entertainers as employees, such as:
- Club owners exhibit significant control over entertainers.
Owners routinely require entertainers to work a minimum number of hours per shift and a minimum number of shifts per week. They enforce wardrobe standards, as well as behavioral restrictions such as the prohibition of chewing gum, drinking from a bottle, or having a cell phone on the club floor. [i]
- Club owners control entertainers’ opportunity for profit or loss.
Owners set the pricing and duration of entertainers’ private dances for club patrons, from which the club retains a percentage. [ii] Owners often provide customers with club script or “funny money” to pay entertainers, and then charge entertainers an exchange fee to convert the club money into real currency at the end of their shift. Owners also require entertainers to pay a “house fee” for every shift (typically between $29 and $160 per shift) [iii], and mandate tips to the club hair dresser and make-up artist, house DJ, and other club personnel.
- Club owners integrally rely on entertainers for the success of their businesses.
Courts have often determined that adult entertainers are integral to the success of many adult entertainment clubs. For instance, the president of one establishment that was defending against a lawsuit brought by entertainers seeking their unpaid wages testified that “[W[ithout the girls, we’re just selling overpriced beers at a sports bar with bad TV’s.” [iv]
For more information on independent contractor v. employee classifications, click here.
Over the past few years, many adult dancers and performers have taken club owners to court alleging employee misclassification. Many of these entertainers are walking away victorious. In 2014, the court in Hart, et al. v. Rick’s Cabaret Int’l, Inc. determined that dancers at a New York club were in fact employees, and awarded nearly $10.87 million in damages to the dancers. [v]
Virginia & Ambinder LLP has successfully represented classes of adult entertainers, and currently represents entertainers in pending suits. For more information on our cases or for a free consultation, contact us.
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