Baltimore Strip Club Wage Dispute Attorney
Ken C. GauveyPersonal Injury Attorney
Strip clubs or Gentleman’s clubs are facing an increasing amount of lawsuits for wage and hour disputes. While the Fair Labor Standards Act is itself a complicated piece of legislation, this is often complicated by the sensitive and often amorphous relationship that exotic dancers have with the Gentleman’s clubs.
Are Exotic Dancers Considered Employees?
There seems to be a great deal of confusion over whether exotic dancers can be considered employees. Whether or not an exotic dancer is considered an “employee” or an independent contractor is a legal question that if answered wrong may result in penalties and fines. In an attempt to clarify exotic dancers and other performers in gentleman’s clubs, courts have established the “economic realities test.” This test is a multi-factor balancing test that is designed to help courts analyze the “economic realities and dependencies” which exist between entertainers and the club. Recently, the Fourth Circuit stated that if a nightclub markets itself as a gentleman’s club, then the dancers are integral to the business and therefore are to be considered employees. However, in reaching their determination they employed parts of the economic realities test, which considers:
- The degree of control exercised by club
- The extent of the relative investments of the worker and club
- The degree to which the worker’s opportunity for profit and loss is determined by the club
- The skill and initiative required in performing the job
- The permanency of the working relationship between the worker and club
Traditionally gentleman’s clubs have treated exotic dancers as independent contractors. This approach has resulted in numerous lawsuits under the Fair Labors Standards Act.
Damages For Misclassifying an Exotic Dancer
The Fair Labor Standards Act is the most general federal labor law and contains the minimum wage provisions, Equal Pay Act, child labor restrictions, and a variety of other federal labor and employment law sections which are directly applicable to exotic dancers and gentleman’s clubs. One of the key provisions of this act provides that most employees must be paid time and one-half for all overtime “hours worked.”
If a strip club owner loses an FLSA suit, the successful plaintiffs are entitled to back pay for all unpaid overtime, usually beginning two years before the complaint is filed. In most cases, they are also entitled to double the amount of back pay. This is called liquidated damages and is essentially in lieu of interest on the unpaid wages. The Act also requires the employer to reimburse out of pocket litigation expenses and pay an additional attorneys’ fee award. Some pre-tax FLSA recoveries by employees have been quite substantial. For employees nearing retirement, back pay awards may increase pension benefits.
Defenses For Strip Club Owners in Baltimore, Maryland
Courts across the country have seen a glut of lawsuits brought by disgruntles employees, dancers, and entertainers. While strip club owners have employed various defenses to varying degrees of success. One of the least effective litigation tactics and defenses is to intimidate workers by requesting tax records under the guise of discovery as to wages paid.
Arbitration clauses, on the other hand, have proven to a certain degree to be effective, although have elements of intimidation and do not provide the level of protection that many strip club owners are looking for. Arbitration clauses can be placed into contracts and if properly drafted and executed are legally binding and enforceable. These clauses have been effective in the past because a judge does not oversee the arbitration, which is conducted by a neutral third party, and fees have to be paid before the arbitration. This has encouraged workers and strip clubs to work together before an issue comes to court and deters attorneys from filing frivolous lawsuits.
Contact a Baltimore Wage Dispute Lawyer for Help With Your Lawsuit Today
However, an effective defense and one that can serve a strip club owner well are to have defined and established processes and procedures for their workers. Even if a strip club loses on the issue of liability on whether or not a dancer is an employee if these procedures are implemented correctly then have owed zero liability to the dancer in terms of wages owed. More importantly in many cases, the courts have determined that under the FLSA even if a plaintiff wins on liability, if the employee receives no damages, then no attorneys’ fees are awarded to plaintiff’s counsel.