Thursday, June 9, 2016

Fourth Circuit: Exotic Dancers are Employees

Wage and hour claims from "exotic dancers" (or "strippers" as some people might call them) are surprisingly common. Yesterday, the Fourth Circuit Court of Appeals issued an opinion on this topic in McFeeley v. Jackson Street Entertainment.

The issue was whether the dancers were employees or independent contractors. The Court applied the "economic realities test":
Not official use.
The touchstone of the “economic realities” test is whether the worker is “economically dependent on the business to which he renders service or is, as a matter of economic [reality], in business for himself.” Application of the test turns on six factors: 
(1) [T]he degree of control that the putative employer has over the manner in which the work is performed; 
(2) the worker’s opportunities for profit or loss dependent on his managerial skill; 
(3) the worker’s investment in equipment or material, or his employment of other workers; 
(4) the degree of skill required for the work; 
(5) the permanence of the working relationship; and 
(6) the degree to which the services rendered are an integral part of the putative employer's business.
Ultimately, the Court concluded that the dancers in this case were employees, affirming the decision of the district court.

Employee vs. Independent Contractor cases are notoriously fact-dependent, utilize numerous factors, and rarely have easy answers. Last year, I ran a series of entries on the various tests used in Pennsylvania. Enjoy!