Among the employment law questions that most people ask, I can tell you that “Are strippers independent contractors or employees?” isn’t one of them.
And yet, having posed the question, isn’t there something about it that demands an answer? After all, the employment laws we have should apply to everyone, right?
Indeed, as I’ve recounted before, numerous gentlemen’s clubs claim to be leasing out their stages to exotic dancers to classify them as “independent contractors”.
Those arguments have typically failed and a new case in Connecticut has provided the same answer yet again.
Several years ago, the Keepers Gentlemen Club in Milford sought to use this argument again having dancers sign a entertainment lease with such sterling legal details like a rent provision stating “SEE THE ATTACHED SHEET!!!!!!!!!!!!!!!!!” (A separate rent provision actually charges more rent the less a dancer works.)
But a group of dancers decided to take legal action claiming that they have been misclassified as independent contractors and never received proper wages, eventually filing suit in court in 2015.
The club had one more tool to try to use against the dancers; the lease agreements all had arbitration provisions that it sought to enforce.
As I noted back in 2011 and 2017, this is not the first time these types of arbitration provisions have been used by gentlemen’s clubs. But if you have followed along thus far, you should know how this story is going to end.
First, the court did allow the club to enforce the arbitration provision. But last year, a retired judge serving as an arbitrator found for the dancers, notwithstanding that the dancers here did not remove their clothes entirely (yes, the club actually made the argument that there’s somehow a difference).
And what was the basis of the arbitrator’s decision? As it turns out, it’s nothing more than your standard misclassification analysis: The club exercised a substantial degree of control; the dancers had minimal opportunity for profit or loss; there was “limited genuine skill required to be an exotic dancer”; and the dancers were integral to the business of the club.
In other words, the dancers are really functioning as employees supporitng the club.
The cost to the club? An award from the arbtitrator in excess of $200,000.
Still, the club contested the arbitration award in court claiming that if the lease agreement was invalid, the arbitration provision should also be struck down. (It also contested the evidence and the award of attorneys’ fees.)
The Superior Court this week rejected those arguments in a new decision. The Court said that because the arbitration clause had already been declared valid (due to the club seeking to enforce the arbitration provision), it survived any finding that the substantive portions of the agreement were invalid. (The decision in Horrocks v. Keepers, Inc. was first reported by the Connecticut Law Tribune here.)
At the end of the day and strippling away the arguments, the purported agreements by gentlemen’s club simply are as thin as the clothes the dancers wear.
Of course, that probably won’t prevent yet another strip club from attempting to use the lease argument again. And indeed, the dancers may have a tough time trying to collect their damages.
But that’s a far more mundane topic. Suffice to say the easier lesson to learn is this: Employment laws apply to everyone. Even to exotic dancers.