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By stephen of Kristensen, LLP posted in Dancer Rights on Monday, January 25, 2021.
Should Dancers Be Considered Independent Contractors? Experts Weigh In

Labor disputes commonly arise out of the gig industry. Especially within the last year, the economic disaster relief legislation passed by the federal government highlighted the financial implications of how workers should be classified.

In the entertainment industry, dancers are often hired as independent contractors, as club owners prefer their talent to classify as part of the gig economy. In most cases, prior to employment, they are offered an independent contractor agreement and employment contract. The majority of dancers are forced to sign on as independent contractors and are thus commonly taken advantage of from a financial standpoint. The inconsistencies with their job responsibilities, the professional relationship between the dancers and club owners, and the industry’s common wage and tip distribution are factors at the center of the inevitable labor disputes that dancers find themselves in when all is not what it seemed.

Here’s the good news. Labeling doesn’t matter under the law. The issue for the Courts is how you are treated.

  When dancers have disputed their designation in court, the Fair Labor Standards Act (“FLSA”), which examines six factors in what’s called the Economic Realities Test, is the lens with which these cases are looked at.

Attorney John Kristensen, Founder of Kristensen LLP, has cited it in past cases that have ended successfully for his clients. In a Miami New Times article published on January 5, 2021, Attorney Kristensen’s comments on an ongoing collective action lawsuit against Solid Gold Gentlemen’s Club in Pompano, FL, highlight the legal precedent in these cases.

“It’s what the law states that matters,” Kristensen says, adding, “under the Test, the clubs lose.” This legal position is overwhelming. See Harrell v. Diamond A Entm’t, Inc., 992 F.Supp. 1343, 1348 (M.D. Fla. 1997) (There is no debate, as a matter of law, that exotic dancers such as the putative class members in this matter are “employees” under the FLSA); Clincy v. Galardi South Enter., Inc., 808 F.Supp.2d 1326, 1346 (N.D. Ga. 2011) (summary judgment); Stevenson v. Great American Dream, Inc., No. 1:12-CV-3359-TWT, 2013 WL 6880921 (N.D. Ga. Dec. 31, 2013) (same); Berry v. Great American Dream, Inc., No. 1:13-CV-3297-TWT, 2014 WL 5822691 (N.D. Ga. Nov. 10, 2014) (club collaterally estopped from re-litigating issue that entertainers are independent contractors rather than employees); Vaughn v. Paradise Entm’t Group, Inc., No. 14-CV-00914-SCJ, Dkt. 190, (N.D. Ga. Mar. 15, 2016)(summary judgment); Dean v. 1715 Northside Drive, Inc., No. 1:14-CV-03775-CAP, Dkt. 102 (N.D. Ga. Jan. 14, 2017) (same); Thompson v. 1715 Northside Drive, No. 1:14-CV-390-RWS, at *11 (N.D. Ga. Mar. 30, 2015) (same); Mason vFantasyLLC, No. 13-CV-02020-RM-KLM, 2015 WL 4512327, at *13 (D. Colo. July 27, 2015); Verma v3001 CastorInc., No. 13-3034, 2014 WL 2957453, at *5 (E.D. Pa. June 30, 2014) (aff’d by the Third Circuit in Verma v. 3001 Castor, Inc., 937 F.3d 221 (3d. Cir. 2019): Levi v. Gulliver’s Tavern, Incorporated, No. 15-cv-216-WES, 2018 WL 10149710 (D.R.I. Apr. 23, 2018) (granting dancer plaintiff’s partial summary judgment that they are employees under the FLSA); McFeeley vJackson StEnt., LLC, 47 F. Supp. 3d 260, 279 (D. Md. 2014); Hart vRick’s Cabaret Int’lInc., 967 F.Supp.2d 901, 912-913 (S.D.N.Y. 2013); Collins vBarney’s BarnInc., et al., No. 4:12CV00685 SWW, 2013 WL 11457080 (E.D. Ark. Nov. 14, 2013); Butler vPP & GInc., No. CIV.A. WMN-13-430, 2013 WL 5964476, at *9 (D. Md. Nov. 7, 2013) reconsideration denied, CIV.A. WMN-13-430, 2014 WL 199001 (D. Md. Jan. 16, 2014); Thornton vCrazy HorseInc., No. 3:06-CV-00251-TMB, 2012 WL 2175753 (D. Alaska June 14, 2012); Thompson vLinda and AInc., 779 F.Supp.2d 139, 151 (D.D.C. 2011); Morse vMer Corp., No. 1:08-cv-1389-WTL-JMS, 2010 WL 2346334, at *6 (S.D. Ind. 2010); Reich vPriba Corp., 890 F.Supp. 586, 594 (N.D. Tex. 1995); Martin vPriba Corp., No. 3:91-CV-2786-G, 1992 WL 486911, at *5 (N.D. Tex. 1992); Reich vCircle CInvestmentsInc., 998 F.2d 324, 330 (5th Cir. 1993). Doe v. Cin–Lan, Inc., No. 08–CV–12719, 2008 WL 4960170 (E.D. Mich. 2008) (in assessing motion for preliminary injunction, finding that dancer was substantially likely to succeed on claim that she is an employee under FLSA); Jeffcoat v. Alaska Dep’t of Labor, 732 P.2d 1073 (Alaska 1987) (finding dancers to be employees under state labor laws modeled on FLSA); Hurst v. Youngelson, 354 F.Supp.3d 1362 (N.D. Ga. 2019); and Vaughan v. M-Entertainment Properties, LLC, No. 1:14-cv-914-SCJ, 2016 WL 7365201 (N.D. Ga. Mar. 15, 2016).

The Solid Gold lawsuit, which was originally filed by a single plaintiff on January 29, 2020, in USDC of the Southern District of Florida, now includes several plaintiffs. The plaintiffs, former dancers at Solid Gold Gentlemen’s Club, claim they are owed hundreds of thousands of dollars in unpaid wages, overtime pay, and the inequitable distribution of tips – a contentious point given what it means should the court make a decision in favor of the plaintiffs.

Kristensen LLP has obtained settlements and judgments exceeded $4 million dollars for dancers since just January 2020. This includes a settlement for eight dancers for $850,000. Judgments for two dancers against Goldfingers  and its owner in San Diego totaling $110,000.

If you have questions, please contact us at (310) 913-1201 or dancer @ Kristensenlaw.com.