There have been a number of cases in which the FLSA employee status of exotic dancers has been litigated. Well, in a very recent one, the plaintiffs' counsel is strongly attacking the Company's early summary judgment motion. The dancers argued they were employees, not independent contractors; the Court has now granted conditional certification to the class. The case is entitled Shaw et al. v. The Set Enterprises Inc. et al., and was filed in federal court in the Southern District of Florida.
Former dancers Sarah Shaw, Rebecca Wiles and Ashley Howell argued that the amount of control exerted over them by the club owners was the key in deciding what their status should be. The plaintiffs reeled off many cases in which just such findings were made. Their papers noted that their "position is not novel; the vast majority of courts to have considered this issue have found exotic dancer/entertainers to be employees as a matter of law."
Their theory was a willful misclassification had occurred and they were paid only through tips from the customers. The class was granted conditional certification in December 2016, as the Court found that a sufficient evidentiary showing was made indicating 300 entertainers worked at the two clubs during the three years leading up to the lawsuit and all were similarly situated.
The owners asserted they were independent contractors who just paid a "modest fee" to the club as a licensee, in exchange for being allowed to perform, use the facilities and collect tips and fees from the clientele. They also asserted they exercised no control while they were dancing and performing.
An attorney for the plaintiffs said that notice was being sent to 4,500 prospective class members. He opined that, in the end, these people would be considered employees under the law, as they have in many other cases. He said that "there's been very strong precedent over the last ten years or so, consistently, in nearly all courts, that has found entertainment dancers do qualify as employees. We believe the same will be found under the facts of this case."
The Takeaway
These cases are very fact-sensitive, but I agree that the majority of them rule that these folks are employees. This case is interesting in the sense that an ultimate decision on the merits has not been made, but the opt-in notices are being sent to prospective claimants.
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