Sunday, September 6, 2009
Nightclub Barred from Firing Dancers
On July 31, Karenza Clincy and seven other dancers filed a law suit against The Onyx, an adult entertainment nightclub in Atlanta which allegedly violated the FLSA by misclassifying the dancers as independent contractors instead of employees, failing to pay them the minimum wage and overtime compensation and by either suspending or firing them in retaliation for filing the lawsuit. The lawsuit claims that in addition to being denied overtime compensation, the "entertainers" at the nightclub were paid only gratuities from customers and this resulted in their receiving less than the federal minimum wage per hour worked. The nightclub fired six of the plaintiffs on August 11, as a direct result of an in retaliation for filling the FLSA lawsuit and warned other dancers not to participate in the lawsuit.
On September 2, a federal district court ordered the nightclub to reinstate the eight exotic dancers who had filed a lawsuit. The district court granted a preliminary injunction, that in addition to ordering the plaintiffs' reinstatement, also barred the nightclub from firing or suspending other dancers participating in the lawsuit. The court said that while the plaintiffs' minimum wage and overtime claims "may" succeed, there was no such ambiguity about their retaliation claims because the dancers were fired soon after filing the lawsuit.
The Court said that the plaintiffs' had shown evidence of flagrant retaliation in violation of the FLSA, in part by producing a tape recording of a meeting between club management and a plaintiff in which a manager stated "the only way that it's going to go away and you are all going to be able to work in this club is if...whoever is on the class action lawsuit that you all decided to file, get together and decide to drop it."
This case is interesting not only for the fact that it involves classification of workers as either independent contractors or employees which is generally one of the early subjects of employment law courses but also for the fact that it is another example that one does not need a great underlying case in order to have a strong retaliation claim.
The retaliation part is obvious, but I'm not entirely clearly on why the dancers couldn't be considered independent contractors unless they were told to work certain hours and thus came under a hourly presumption. Sounds like they didn't run the business too well or intelligently.
Posted by: Gary | Sep 8, 2009 1:22:28 PM