I’m sure you will surprised to hear this: allegedly employers in the adult entertainment industry aren’t vigilant about complying with the law. I previously wrote about the dangers of age discrimination at a “gentlemen’s club” in South Alabama here: Age Discrimination and Dancers. Now, one entertainer at a North Alabama landmark, Jimmy’s Lounge, has apparently decided to claim a violation of her rights to fair pay under the Fair Labor Standards Act (“FLSA”). See Miller v. JAH, LLC, No. 5:16-cv-01543-AKK, 2018 WL 305819 (N.D. Ala. Jan. 5, 2018).
In an attempt to adequately describe Jimmy’s Lounge for non-Huntsvillians, I went to their Facebook page. Their cover photo is a woman who is scantily “clothed” — in pizza. Their “about” description is short: “#1 Gentlemen’s Club.” Hopefully, you get the picture.
Breeana Miller has decided to sue this renowned establishment, claiming that she is an employee who hasn’t been paid correctly under the FLSA. Additionally, Ms. Miller has asked United States District Court Judge Abdul Kallon to certify a class action of all people who danced at Jimmy’s from September 16, 2013 to September 16, 2016. The opinion released by Judge Kallon last week discussed that request for class certification and sheds some light on Ms. Miller’s claims.
Ms. Miller claims that Jimmy’s dancers are employees, covered by the FLSA, but they are not paid minimum wage as required by the FLSA. Instead, their sole pay comes from the tips of patrons. Ms. Miller claims that she is an employee because Jimmy’s maintains control over the terms and conditions of her work, including: paying “tip out” fees to management and other non-tipped employees; requiring them to report to work at specific times with specific shifts; setting the prices of private dances; and, imposing monetary penalties for absences, lateness, leaving early, and their weight.
Jimmy’s denies that the dancers are employees, and instead claims the dancers are independent contractors. Only employees can sue for violations of the FLSA. Judge Kallon’s opinion does not provide much information discussing the details of Jimmy’s independent contractor defense.
Federal judges frequently grant conditional certification of a class in FLSA actions, and allow plaintiffs like Ms. Miller to contact potential class members. Judge Kallon’s opinion discussed an interesting request by Ms. Miller to contact former dancers by e-mail and text message — claiming that dancers tend to move frequently. Judge Kallon denied that request for now, and he seemed particularly reluctant to allow contact by text message. Nevertheless, he seemed open to reconsidering the request if traditional contact by mail was unsuccessful.
I will try to keep tabs on this case and keep my faithful readers updated. In the interim, if you assume that Ms. Miller’s accusations are true, the best lesson to be learned is one that I’ve talked about before. Merely labeling somebody an “independent contractor” does not automatically prevent them from being considered your “employee”: How “Independent” Are Your Independent Contractors. The test for determining whether a worker is an “employee” for purposes of the FLSA can be a complex one, and it will be interesting to see what the evidence reveals as this case goes on.