There are no employees in the champagne room
In the last few years, states have been grappling with the issue of whether dancers, exotic or otherwise, are employees or independent contractors. The distinction can have a significant impact on the rights and responsibilities of both the dancers and club owners.
The South Carolina Supreme Court ruled that an exotic dancer at the Boom Boom Room Studio 54 (which sounds like two clubs rolled into one) was an employee, not an independent contractor, and therefore she was “entitled to workers’ compensation benefits” for injuries she sustained after being shot at the club. In 2013, the Kansas Supreme Court ruled that exotic dancers were employees under state law and therefore were entitled to unemployment insurance. The Nevada Supreme Court found that semi-nude dancers at the @SapphireLV Gentleman’s Club were employees and thus entitled to minimum wage. The opinions turned on state law and how “employee” is defined by statute, but for guidance the Nevada Supreme Court looked at the Fair Labor Standards Act’s “economic realities” test. On a side note, some of the Sapphire dancers “made as much as $100,000 per year in tips.” And I thought it rained a lot in Portland!
In Oregon, “[s]trippers generally work as independent contractors rather than employees,” according to The Oregonian. “They pay a stage fee or a portion of their earnings to the management, bartenders, bouncers, DJs and other support staff.”
The State of Oregon summarizes independent contractor laws here, and also links to a chart that describes different criteria to use to determine if someone is an independent contractor for purposes of the Department of Revenue, Employment Department, Construction Contractors Board, and Landscape Contractors Board (ORS 670.600); the Wage and Hour Division of the Bureau of Labor and Industries (BOLI) (economic reality test); and the Civil Rights Division and Workers’ Compensation Division of BOLI (right-to-control test and/or nature-of-the-work test).
That being said, the chart comes with the caveat that it is “provided as a summary and teaching guide and is not intended as legal advice. If you need legal advice, please consult an attorney.” Yes, please consult an attorney, @saidthelawyer.
Oregon dancers, working with the National Association of Social Workers, have been speaking to legislators in support of two bills that would affect dancers, without making them employees. House Bill 3059 would require operators of “live entertainment” establishments to “conspicuously” display a poster developed by BOLI that includes a “summary of the rights of independent contractors and employees who perform live entertainment” and a reference to a toll-free telephone number for “receiv[ing] inquiries and complaints related to employment in the performance of live entertainment.” House Bill 3060 would require a “live entertainment facility” (which the bill defines as, generally, a private club or place that derives profit from “live entertainment,” being “a presentation given exclusively or in major part by humans to a live audience”) to have “a valid live entertainment facility license issued by the Department of Consumer and Business Services.” The bill would also require periodic inspections to check that the performance area is “free from fire and life safety code violations,” is “free from obvious defects in structural integrity,” is “maintained in a clean and sanitary condition,” and has “reasonable security provisions.”
According to the lobbyists, the bills don’t single out strip clubs and instead focus on “live entertainment” venues because of the Oregon Constitution’s strong free speech guarantees. See, for example, the 2003 opinion in State v. Ciancanelli, in which the Oregon Supreme Court held a statute unconstitutional that made it illegal to “direct, manage, finance, or present a live public show in which the participants engage in sadomasochistic abuse or sexual conduct.” The statute restrained “free expression,” in violation of Article I, section 8, of the Oregon Constitution. Thus, according to the proponents of these new bills, strip clubs have to be treated the same as other establishments.
Oregon’s free speech protections remind me of the adage from the Bret Easton Ellis novel Glamorama: “The better you look, the more you see.” Here, as illustrated by the above case, dance is speech. And, as illustrated by the Citizens United case, money is speech, too. So, the more you say, the more you hear.
Proponents of the bills said they were not trying to change the independent contractor status, which carries with it anonymity and flexibility and no licensing requirement. For the clubs, that also means no payroll taxes, health insurance, or workers’ compensation claims. Instead, the goal is a better workplace. @ElleStanger, who is quoted in several articles, said, “Some of the buildings are literally dilapidated and not maintained. You have entertainers that could injure themselves from broken glass on the stage, poor wiring with the sound system. We just want to get these workplaces up to a minimum safety standard at least.”