Human Resources News & Insights

Are strippers ‘creative professionals’ under FLSA?

Wage and hour lawsuits are cropping up by the dozens these days — even in industries you’d least suspect.

Four female workers filed a suit against their company, claiming they were denied overtime pay.

Nothing out of the ordinary here — except that the employees were exotic dancers at clubs that offered “topless” or “totally nude entertainment.”

The nightclub said it didn’t have to pay the strippers overtime or minimum wage because their work fell under the “creative professional” exemption of the Fair Labor Standards Act. In other words, the company claimed the dancers’ primary duty was “the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”

That would be the “artistic endeavor” of dancing with no clothes on.

The dancers, on the other hand, were not so quick to identify their craft as art and sued for back wages.

Where did the court stand on this debate? Unfortunately, we won’t know just yet. Before the case could be heard, the judge dismissed it.

Why? The strippers filed the suit pseudonymously under the name “4 Exotic Dancers” — and the judge wouldn’t let the case proceed until the strippers publicly identified themselves.

The dancers were afraid they’d be retaliated against by the nightclubs they were suing in the form of harassment, termination and blacklisting. They also felt they’d be stigmatized if their identities were revealed publicly.

Courts do occasionally allow plaintiffs to testify under pseudonyms if it’s necessary to protect the person from injury or harassment.

Tough luck for the exotic dancers though — the court said that even though the strippers may “suffer some embarrassment or economic harm,” it’s not enough to warrant pseudonymity here. If they wish to file again, they’ll have to do it under their real names.

Still, what’s the lesson from this titillating case? Double-check who you’re classifying as exempt or non-exempt — problems can crop up where you least expect.

Cite: 4 Exotic Dancers v. Spearmint Rhino, et al., U.S. Dist. Ct. C.D. Cal, No. CV 08-4038 ABC (SSx)

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Comments

  1. They make tips right? So they don’t have to be paid min wage or get overtime, correct? I hope if they win, the IRS will then look into them for unclaimed tips which no doubt is not reported accurately.

    Next, are hookers going to court for not getting higher night and weekend rates? 🙂

  2. Good one Richard!

  3. Makes perfect sense. When you’re a stripper, that’s considered a part time job…when do they actually make over 40 hours a week? Well, on the other hand, California is their own country…but still.

  4. Actually besides casinos, “gentlemen clubs” are very strictly run businesses. Strippers or “exotic dancers” are usually considered independent contractors and are exempt from the FLSA. They sign contracts, provide their own tools and uniforms, generally get paid directly from the clients (which they pay the establishment a percentage as a fee), and are responsible for their own taxes and withholdings. They generally do not serve food or drinks or perform any duties “employees” perform. They are considered “artists” and the form of their art is “expression” which leads to the industry argument for free speech.

    It seems the club in this article missed the boat and referred to them as exempt employees instead of independent contractors. I’m sure their legal team is fixing that right now.

  5. Uniforms?

  6. So the excuse would be ‘Honey, I’m going to see an expressional art show with the boys’? 🙂

  7. Good one Getz 🙂

  8. Tools??! Don’t wanna know….

  9. I am disappointed in the Professionals on this site who could not pass up an opportunity to be snide. A Stripper whatever the definition is a legal profession, for the most part Prostitution is not legal. The assumption they are the same thing is uncalled for. Waitresses make tips too but are still paid overtime. The implication above indicates this class of employee is not worth legal protection and that is a dangerous path. Shame on you.

  10. Prostitues would be really pissed at your snide comment.

  11. @Roberta,

    You need to state to whom you are speaking to…

    The girl at work says that when waitressing, she would get a voided check if she made over x amount above the check amount. She further stated that this was legal as she looked it up. I don’t have time to question her findings. Therefore overtime or not, if she made so much in tips, the check was void.

    No one is saying people don’t deserve legal protection, but that the lawsuit itself is funny. Second, being that my post is the only one using Hooker, i will answer to that. I don’t see how reading my statement makes you think Dancers and Hookers are the same. Unless you are a far left liberal which would by definition, take what is said out of context.

    There was no correlation between the two professions, but to the absurdness of the complaint. Again, I say we allow the claim of overtime if we first allow the probe into claimed tips! Fair?

  12. @Roberta,

    Lastly, although I did not make any direct correlation between dancers and hookers, I would say I can’t see much difference between the two. IF you are going to get naked (or close to it) and dance next to or on guys for the sole purpose of arousing them into tipping you. That is sex(uality) for money.

    Explain different if it is the case.

  13. If the club tells you what to wear, what music to play, what hrs to work, when to take a break, requires you to do promotional activities , like “two for one specials” , or what to charge for shows or dances then you are an EMPLOYEE. You are illegible for hourly wages,overtime, sick days, benefits, required breaks, and all the other things ANY other employee has the right to. And you KEEP your tips.
    If you are a contractor, you set your own hrs, rates for services, etc. You may be required to pay a fee, such as a stylist in a salon rents a chair, but after that everything you make is yours. You get a 1099 from the IRS, and you pay your taxes.
    Many class actions have been brought, and WON, on this very issue.(And they did it anonymously, so you can,too.)
    And we have Unionized, and we will not stop! (I’m a shop steward)
    Go Girls!

  14. Oh great Unions. The same group that helped bankrupt the car industry and has lowered the bar on education.

    The TWO greatest things that could happen to this country is to dissolve union power and stop the federal government funding of ANYTHING!! (States should tax for education and then issue vouchers and let the free capitalist market compete for dollars)

  15. Staceyboy says:

    Seems to me like the ‘Dancers’ want to have their cake and eat it too (which would only result in lower tips from the weight gain…). It would seem to me that as to whether or not they were employees would depend entirely on if they were paid a wage by the establishment, or not. Some may well pay the dancers AND the establishment keeps some of their tips, others may not pay them a wage and the dancers keep their tips. Tip earnings would by far out weigh any hourly rate they could possibly be paid, so, I wonder; how much money are we talking about that would make them want to go after it through legal means? Were they somehow going to factor tips into average hourly compensation and get paid 1/2 time for that as well?

    Littleshoes….even salons can tell their ‘independant contractor’ what hours they can work and what to wear. Building contractors coordinate subs in order to have a house done, why can’t a ‘club’ coordinate the ‘contractors’ to meet peak ‘client’ times?

    I, for one, don’t feel sorry for strippers. There seems to be this mentality that they are somehow victims of all these men, but from what I have seem it is quite the opposite. “Clients’ are preyed on and bilked out of hard earned money while aroused and not thinking clearly. Strippers are sharks and the clubs are chuming the water….they should both be dinged and the funds used to help programs that treat sex addiction.

  16. I think the govt needs to keep their hands off this industry…oops sorry for the implication. I think I like the direction this board is taking on a Friday! Yeahhhh!

  17. Boy I have mixed feelings on this one.

    Though I’m not particularly condoning “strip clubs” I do think the girls that end up having to do that to make their rent should be treated fairly. It may be just stereotype but I think the club owners tend to take advantage of them.

    On the other hand I think the whole subject is mildly amusing and it was a great way to end the week!

    Have a good weekend!

  18. Oh and yeah I agree that the government, congressmen and ex-presidents need to keep their “hands off this one”, lol!

  19. @Julie,

    So we went to not paying overtime to being out of business altogether? LOL LOL

  20. So Richard, if you don’t see much difference between dancers and hookers I wonder if you see much of a difference between the guys who go to gentlemen clubs (for the free lunch) and the guys who use hookers. The point is someone with a legal job wanted protection under the law. Are they contractors, employees or “artists” – that is the question.

  21. Staceyboy says:

    What about just paying them on a ‘Piece Rate’…uh, er, I mean by that, paying them so much per dance and letting them keep their tips.

  22. @Terri Hancock

    If these ‘gentlemen’ go there to watch dancers, then yes, they are no better. Both are getting sexually aroused from girls (i presume) that are selling their bodies for CA$H!

    I don’t go, nor understand strip clubs. If you throw that kind of money at your honey and act like you really want to be with her, she just might just be willing to hit that lap dance every now and again.

  23. Unfortunately, most strippers at clubs are hookers away from the clubs. Most of these women are addicted to some form of drugs, alcohol or both. Frankie C and his daddy are under indictment in Seattle for running strip clubs / brothels here and not paying taxes. The club owners are just as bad as the strippers. Oh, and men who step through the doors of these places deserve to be “sharked”. They know full well going in what they are there for. Pay to play, if you can’t afford it, go home and rent a pay per view.

  24. I agree with Roberta. It seems we have made a distinction about which jobs are worth the protection of the law and which are not. If we start making distinctions about jobs that are protected by law, it isn’t far before we start excluding those we disagree with or have enmity towards. Imagine leaving teachers at a Catholic or an Islamic school out of the legal protections of the FLSA because you disagree that churches should sponsor private schools. Or you don’t think waitresses or bus boys should be considered because they are simple hired “help.”

    In Nevada, prostitution is legal. In most states, exotic dancing is legal.

    As a final note, I personally know some people who own “Gentleman’s clubs.” I don’t go there because it doesn’t do much for me. However, neither does going to a casino. My friends inform me that the ones who frequent their “establishments” are the ones who are the most vocal against them in the news and other media. Imagine that. Maybe if those who are indignant would quit going to these places, there would not be so many around. Its “Demand” and “Supply.”

  25. Richard,

    Tipped employees (waitresses, etc) are subject to minimum wage and overtime requirements under both state and federal law. We employers are required to make sure they make at least minimum wage through a combination of cash wages (minimum wage minus a tip credit which currently nets to $2.13 per hour in NC) and tips. We have to pay the cash wage no matter how much they receive in tips and we have to make up the difference for those who don’t make enough in tips to get up to minimum wage. I can’t see any way that your friend’s employer could legally not pay her if she made over a certain amount in tips UNLESS the related payroll taxes or any other authorized deductions ate up the rest of her check. We are required to withhold income, social security and medicare taxes on the total wage amount including tips, so sometimes a wait person will receive a net zero check.

    We are also required by both state and federal law to pay overtime to tipped employees. While we rarely have wait staff who work over 40 hours per week in that job alone, in our restaurant they sometimes also perform cashier, host or other duties. If their wait hours occur later in the week and are what puts them into overtime, we must pay them time and one-half of the minimum wage rate for those hours, less the tip credit (currently a net cash wage of $5.41)

  26. @JT,

    I agree that it sounded very odd and stated that to her. She says that it was verified. The company is Hooters.

    Thanks for the feedback.

  27. Staceyboy says:

    I think there are a lot of ways to skin a cat and it sounds like there are a lot of ways to run a strip club. The original question was, “Are strippers creative professionals under the FLSA?” and I would answer, “Yes they are”. If they aren’t, who would be? Why wouldn’t they be? What seperates them from other ‘Artists?’

  28. @Staceyboy

    Why would a stripper be a creative professional under the FLSA? How are the dances or entertainment they provide artistic? I.e., how are they different than the way many non-artist women dance at bars, clubs, weddings, etc.? What type of creative artistic experience is required? Or training? Do many exotic dancers train at Julliard?

    Responding to “[i]f they aren’t, who would be?” – a dancer whose dancing is artistic (think Cirque de Soleil, ballet, or any of the backups in a dancing-related reality show that requires sophisticated choreographing).

    @Richard Getz

    As an independent photographer, what type of FLSA/HR background do you have?

  29. Staceyboy says:

    Lawyer,

    You answered a question with a question, but didn’t really give an answer other than to raise few sarcastic questions yourself. Erotica has long been argued as art by it’s many purveyors and the ‘Lawyers’ who purport that cause. As to whether a dancers ability to arouse someone sufficiently to relieve them of their money constitutes art, I don’t know and I suspect, neither do you. I would venture that for every lawyer you could find saying it wasn’t, I could find one that would say it was.

    As far as requiring a planned routine or choreographing, I would argue that many strippers have a very well choreographed routine and even if they didn’t, the idea that all art is planned or choreographed is bunk. Change venues for a moment to music….Jazz is often free flowing and spontaneous. Would you discount it as art? I’m sure Miles Davis would disagree, if you did. How about, gee, I don’t know, painting. Does every painting need rough drafts and revisions before it can be called art? I think the great impressionist painter Claude Monet, were he alive, would disagree if you said yes.

    Finally, I wonder at your choice of username….’Lawyer’. Did you choose it because you are so pompous as to tout your accomplishment, hoping to be the big fish in a little pond? Or, did you select it because of how inadequate you feel and you believed this would give you credibility? Either way, you came short of ‘solving’ this dilema for us and provided no difinitve answers…maybe you could do a little research before you weigh in next time. Might help debunk that stereotype that Lawyers are 10% fact and 90% bull.

    Richard, you strike me as having a pretty good understanding (I.E. Horse sense) for HR issues. How does being an independent photographer discount that?

  30. Staceyboy says:

    I think Mike R. hit the nail on the head in his response from July 10th at 10:54 a.m.

    I didn’t sink in the first time I read it, but you are right.

  31. @lawyer

    Wow, one can point a liberal out of a crowd quickly. Long before Schools there were extremely intelligent people without degrees in a subject. The sad thing is, I am an independent photographer, a programmer, and a operations manager. None of which have much to do with HR in and of themselves, yet I still have a better grasp than the lawyer (cough) in the group.

    Typical trick that if one does not have anything intelligent to say, they attack the person. If, lawyer, you had such wisdom, then that which you have educated us with would have been enough to discredit what I say.

    In a debate, you either have facts that will make people listen to you, or attacks that will attempt people from listening to your opponent. I see you have chosen the latter.

    @Staceyboy: LOL I am not sure why someone must have dedicated education in a subject to be correct. If one does there share of reading and listening, you can learn much.

    @Mike R.

    “he ones who frequent their “establishments” are the ones who are the most vocal against them in the news and other media. ”

    I find this extremely hard to believe. I am adamantly against them and don’t visit them. Yes, you will have hypocrites with anything, but I don’t see people talking against them and visiting them. It would be like screaming against abortions while at a clinic getting one done. Not going to be the norm.

    I do agree that if it is legal (sadly) then it should have the protection as any other job.

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