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Just how poor are wage and hour protections for exotic dancers?

Exotic dancers, just like employees in all other industries, are entitled to the protections of the Fair Labor Standards Act and other state and federal labor and employment laws. Unfortunately, these dancers often don't get a lot of respect, and the workers may believe -- or may even be told -- that they have no right to be paid a minimum wage, keep their tips and be paid for overtime.

In recent years, however, employment law attorneys across the nation have been filing class action wage and hour lawsuits on behalf of dancers who have been unlawfully misclassified as independent contractors. One of those cases was just settled preliminarily for $8 million.

This case involved 1,245 current and former dancers at the Penthouse Executive Club in New York City. The dancers claimed the club violated their FLSA rights by failing to pay the minimum wage and overtime, requiring them to pay for their own outfits, and illegally taking a portion of their tips.

Under the FLSA, when uniforms or costumes are primarily job-related, workers can't be required to bear the cost of their purchase or cleaning if those costs would reduce their wages below the minimum wage or affect their overtime pay.

Tip skimming by employers is also specifically prohibited by the FLSA. The only ways employers may legally use employees' tips is to prove they are receiving the minimum wage or as part of a bona fide tip sharing arrangement.

Ultimately, people aren't independent contractors just because the boss says they are. The FLSA and state laws specifically set out rules for employment relationships. Although there is no black-or-white test, the Labor Department lists seven considerations to be balanced in determining whether a worker may be considered a contractor:

  • The extent to which the services rendered are an integral part of the principal's business.
  • The permanency of the relationship.
  • The amount of the alleged contractor's investment in facilities and equipment.
  • The nature and degree of control by the principal.
  • The alleged contractor's opportunities for profit and loss.
  • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  • The degree of independent business organization and operation.

Exotic dancers have been ruled to be employees, not contractors, in a large number of lawsuits around the country. Last June, for example, a class action wage and hour lawsuit in Florida won a group of exotic dancers a $1.55 million settlement.

Source: Thomson Reuters News & Insight, "NYC 'gentlemen's club' to pay dancers $8 mln," Carlyn Kolker, April 9, 2013

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Law Offices of Allan A. Sigel, P.C.

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