A federal appeals court has upheld a verdict in favor of exotic dancers who complained of unfair pay practices in a lawsuit against the owner of two adult clubs in Prince George’s County.
The six dancers worked at Fuego Exotic Dance Club and Extasy Exotic Dance Club at different times between 2009 and 2012.
In 2012, the dancers sued the clubs, contending that the clubs had improperly classified the women as independent contractors rather than as employees and failed to pay them minimum wage under the federal Fair Labor Standards Act.
The dancers said they worked for performance fees and tips, not an hourly rate, and were charged fees for, among other things, bathroom breaks. They also said they had to pay the clubs a “tip in” fee of $50 for every shift.
In addition, dancing at Fuego or Extasy demanded a bit of extra paperwork.
“Anyone wishing to dance at either club was required to fill out a form and perform an audition,” Judge J. Harvie Wilkinson III wrote in the unanimous decision of the three-judge panel of the U.S. Court of Appeals for the 4th Circuit. “Defendants asked all hired dancers to sign agreements titled ‘Space/Lease Rental Agreement of Business Space’ that explicitly categorized dancers as independent contractors.”
A federal trial court awarded the dancers about $265,000 total last year, and the clubs appealed. The appeal turned, in part, on how much control the clubs had over the work environment and how the dancers did their job.
Although the clubs said they had “very little control” over the dancers, Wilkinson disagreed, pointing out that the businesses set fees and “coached” dancers who did not have the “right attitude.”
“Plaintiffs were allegedly free in the clubs’ view to determine their own work schedules, how and when they performed, and whether they danced at clubs other than Fuego and Extasy,” Wilkinson wrote. “But the relaxed working relationship represented by defendants — the kind that perhaps every worker dreams about — finds little support in the record.”
Wilkinson also wrote that a lower court properly concluded that “the minimal degree of skill required for exotic dancing” meant the dancers were employees, not independent contractors. But the dancers’ abilities or lack thereof weren’t important factors, the judge wrote.
“Even the skill displayed by the most accomplished dancers in a ballet company would hardly by itself be sufficient to denote an independent contractor designation,” Wilkinson wrote.
Gregg Greenberg, who represented the dancers and is involved in similar litigation against a D.C. strip club, praised the decision.
“The Fourth Circuit Court of Appeals is saying that exotic dancers are employees,” Greenberg said. “In an industry that widely misclassifies their workers, it’s a nice message.”
An attorney for the clubs did not respond to requests for comment.
This is not the first time courts have wrangled with the question of whether strippers are independent contractors. Five dancers who demanded minimum wage from a D.C. strip club won a case in 2011, and dancers at an all-nude club in Dallas won a $2.3 million settlement in 2014.
In an email, Sarah Leberstein, the senior staff attorney of New York’s National Employment Law Project, said contractor abuses are common and can be difficult to address when workers face retaliation for voicing their complaints.
“I certainly hope that more dancers misclassified as independent contractors successfully bring claims contesting their employers’ violations,” Leberstein wrote. “What’s key to this equation is not only whether there’s significant and growing precedent for finding that exotic dancers are generally the employees of the clubs in which they’re employed, but also whether dancers know about their rights and are able to find the resources to bring claims.”