Ellzey & Associates, PLLC Scores Another Offensive Summary Judgment in FLSA Case

Here we go again. Less than twenty days has passed since Judge Andrew Hanen of the Southern District of Texas granted summary judgment in favor of exotic performers in a wage and hour case. In that time, Magistrate Judge Dustin Howell found in favor of our clients on the same grounds Judge Hanen used to ring up a win for the good guys on the labor side. In the case of Natalie Heath, et. al v. TFA Dining LLC; Case No. A-20-CV-00890; United States District Court for the Western District of Texas (Austin Division), Judge Howell found the economic realities test weighed in favor of the Plaintiffs. The short, plain-English meaning of all this is – the dancers are not independent contractors because the club owners (and their management) control just about everything the dancers do. You are not an independent contractor when someone else is looking over your shoulder and telling you where to be, when to be there, and how to do your job.

The dance clubs love to pretend they just built some cinderblock building on a street in your town and opened the doors hoping these independent dancers will fill their stages every night. But anyone with a marble bouncing around in their head knows this is not how business is done anywhere. We aren’t building a house and hiring plumbers and carpenters with their own skill sets and methods. No, we are offering sexually oriented entertainment to men (yes, surprise, mostly men populate the empty booths and tables at these places). This means these business must rigorously recruit the highest talent. Regardless of what the owners say, this means attractive young women with fit physiques. The owners must also make sure these fit physiques are on stage when the crowds come in. Therefore, while the owners may act as if they have a come-at-your-leisure policy with the dancers, the evidence in almost every case shows the floor managers text the dancers and call them to make sure they are coming in to work (or else!). There are also sign-in sheets and pay incentives for the dancers when they work certain nights and hours. Nothing about this arrangement is “independent” in a vast majority of the cases we see.

What does this mean? If the club owners want to charge these hard-working performers (who almost have other jobs, children, and classes to attend) and/or force them to share their tips, they must pay them minimum wage to start with.

We won. Here is the opinion in full: