The Naked Truth about Misclassification of Workers as Independent Contractors – from Exotic Dancers to Construction Workers
Recently, there have been a number of wage and hour claims brought by exotic dancers across the country against their former employers. These lawsuits are brought by dancers who claim that they have been misclassified as independent contractors. While employees are covered under the Fair Labor Standards Act, true independent contractors usually are not. When employers misclassify workers as independent contractors (a/k/a 1099 employees) when they should be employees, the workers are typically denied their rights to overtime pay, minimum wage and benefits.
While this industry has historically been uninhibited and unchallenged, more recently, workers have stepped up to assert their rights. These workers have been successful, with an increasing number of judges finding that exotic dancers were in fact employees rather than independent contractors and awarding them significant amounts of back overtime pay.
In the News
A Florida woman brought a lawsuit alleging violations of the Fair Labor Standards Act against her employer for the last three years. In the suit, she claims that the lounge where she worked intentionally misclassified her as an independent contractor. She is seeking payment of minimum wage for the hours that she and other exotic dancers worked.
In March 2015, two dancers filed a lawsuit alleging wage and hour violations in which they stated that the nightclub that they worked for misclassified its exotic dancers in order to avoid paying them minimum wage and overtime as required under the Fair Labor Standards Act. They also allege that they were required to give management a portion of their tips.
Earlier this year, the operators of a New York City strip club agreed to settle an unpaid overtime claim for as much as $15 million. In the lawsuit, exotic dancers alleged that the strip club’s policies required the dancers to illegally hand over some of their hard-earned tips to a “house mom” and upper management.
In a pending lawsuit in Philadelphia, a former hostess and waitress says that she was only paid $2.83 per hour along with her tips. However, she alleges that she was not allowed to keep all of her tips. Instead, she had to share her tips with management, and some workers had to compensate the business if patrons broke glasses or walked out on their tab. Additionally, the former waitress claims that the women had to pay for their own outfits.
The former hostess also says that if the dancers forgot to clock out, management would clock them out at midnight, usually several hours before the actual end of their shift. The lawsuit states that the establishment is in violation of the FLSA, as well as several Pennsylvania wage laws.
In cases of this nature, the court considers whether a worker meets the legal definition of an independent contractor or an employee. Courts do not simply look at the employment contract or the way that the parties classify themselves. Instead, they look at the nature of the business relationship. For example, employees tend to be more micro-managed while independent contractors enjoy greater freedom to complete their job according to their own directive. Courts may consider other factors when making this determination, such as the skill level required for the work, the duration of the working relationship and how important the worker’s services were to the business.
Workers who believe that they have been cheated out of overtime pay due to independent contractor misclassification should consider discussing their situation with an experienced overtime pay lawyer who can bring a wage and hour claim on their behalf.