Strip Club Studies & Fair Labor Standards Act Factors –Are you an Employee?

This is the third part of real life stripper stories from Ms. Brandi Campbell who has worked tirelessly and became a champion of women’s right in dealing with unfair pay and tactics used at her former club.

She was successful in suing the club, Shakers in Waverly Nebraska, and won her legal case. She has granted us permission to re-blog her original content.  You can visit her stripper rights advocacy website here.

FLSA Factors in determining whether a worker is an employee

FLSA Factor #1:

“The extent to which the services rendered are an integral part of the principal’s business.”

Shakers men’s club exists solely to make money off of dancers and the customers who come to see them.  This factor is the easiest to determine.  Sometimes clubs that serve liquor or food will argue that their focal point is making money off of liquor and food, but even those clubs lose that particular argument. Of course Shakers, which does not serve liquor, would not have this factor in their favor.

FLSA Factor #2:

“The permanency of the relationship.”

When I signed my first contract at Shakers when I first walked into the building, I was informed that I would have to sign another one in a month or so. In addition to the normal contract, Shakers also had dancers sign a specific contract for nights they weren’t normally open. Shakers were willing to distribute contracts to dancers whenever one was requested.

The Shakers contract was very specific about how it would expire in a few months time. Dancers at Shakers informed me, several times, that they had to fill out new contracts every so often. Clubs create contracts that expire, to preserve their right to argue that their relationship with the dancers was not permanent. While Shakers preserved this right by including an expiration date on each of their contracts, it could be argued that Shakers kept dancers aboard who did not argue or protest their working conditions, while they banned dancers who gave them problems.

At the end of my time at Shakers, I asked my manager, Dillon Maynard, if I was going to be the only one not getting a job on January first. He wouldn’t give me a yes or no answer about any of it or explain much of anything.

If you have worked at Shakers and feel as though you were not allowed back after your contract expired, but other dancers were allowed back, it is entirely possible that you were being misclassified, but that Shakers is hiding behind the ambiguity by using expiring contracts.

Shakers did not want me to be working there, but didn’t want to risk firing me. One day after discussing the contracts with my manager Dillon Maynard, the DJ Steven Loe played a bunch of songs about New Year’s Day being wonderful. He also played ticking time bomb noises, which he had done before, while staring me down.

It is these kinds of ambiguities and subtleties that Shakers utilized to dance around labor laws conflicting with the way they wanted to run things.

FLSA Factor #3:

“The amount of the alleged contractor’s investment in facilities and equipment.”

Facilities and equipment at Shakers included things like stage, lighting, furniture, bar, DJ equipment and the building itself. All of these things were bought by the club. The dancers, who the club alleges were not employees, invested little if any money in objects or supplies used solely for their jobs.

While strip clubs sometimes attempt to argue that objects like makeup and lingerie are proof that dancers are contractors investing in their own businesses, these objects are basic hygiene and living expenses that any other employee would use. Strip clubs like to ask plaintiff dancers if they deducted any of their personal hygiene and grooming objects on their taxes. However, these kinds of objects cannot be deducted if used outside of the workplace.

The investment that the club makes in maintaining the business running is overwhelmingly in favor of employee status.

FLSA Factor #4:

We covered this factor here

FLSA Factor #5:

“The alleged contractor’s opportunities for profit and loss.”

This factor and subsequent factors are kind of similar, but I’ll try to interpret what this means. Several things that Shakers did might apply to this factor.

Most strip clubs spend significant amounts of money advertising their business to the public, in order to attract patrons. This has usually been in my favor during lawsuits, because the club is the one spending time and money to attract the patrons.  Clubs have tried to argue that strippers advertise with social media, but since social media is usually free and not always dependable, it hasn’t always worked out for the club to say this. Shakers was a lot different though, because as far as I was able to see, they didn’t spend money on advertising AT ALL.

While I worked at Shakers, there wasn’t always a lot of opportunity for profit. Shakers was often dead and dancers would complain that the club needed to be advertising more. Secretly, I was thinking about how interesting it all was that Shakers didn’t make overt efforts to attract clients. Some of the dancers had regulars who had been coming there for a long time, and came in to visit them. Shakers does have a Facebook presence, but that was all that I think they do.  I don’t have enough information about their past advertising attempts to compare. Shakers had a friend-spy to come in and talk to me about advertising, so I think maybe they stopped after the lawsuit. The slowness of the club had everyone at an economic disadvantage, and I legitimately worried how much of a struggle it must have been for the Robinson family to survive like they were off of their club.

Having to go on stage when called and having a piece of paper with dance prices on them were two things that other dancers experienced which affected their opportunities for profit and loss. Since I was treated special and heard special monologues all the time, this factor didn’t apply to me according to most lawyers.

Factors six and seven are kind of similar to factor five, so I will describe other things at Shakers in those posts while acknowledging that they can also be applied to this one.

FLSA Factor #6:

“The amount of initiative, judgement, or foresight in open market competition with others required for the success of the claimed independent contractor.”

This factor is referring my hustle— my hustle that Shakers manager Dillon Maynard attempted to audio record me talking about near the end when he began asking me about my thoughts on hustling. In legal proceedings, I am often battered by the defendant, who usually attempts to make me seem poor, dumb and unattractive. Many people in society who have not been to a strip club, and who have a Hollywood idea of what a stripper is, do not understand my hustle. Most people who have never been in my direct strip club working environment do not know or understand my magic. That’s ok with me.

Folks, I am a woman who does my taxes and who is currently embroiled in pending legal proceedings.  There is nothing to gain by explaining it, so let’s just move on, to factor seven.

FLSA Factor #7:

“The degree of independent business organization and operation.”

I was able to organize and operate my business in any way that I wanted to at Shakers, without owners or management telling me otherwise. While they eventually encouraged other dancers to harass me, and could have possibly caused a constructive discharge case, this factor is arguably still in Shakers favor. I didn’t feel like putting forth the effort to argue otherwise.

As you can see, factors 5, 6 and 7 are vague and can overlap. For other clubs I have sued or am suing, the argument can be made that the constant badgering from staff and owners, about what to do and when, indicates that a dancer is unable to operate and organize her own business.

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