Ellzey & Associates wins Summary Judgment for FLSA Plaintiffs
Ellzey & Associates, PLLC and its co-counsel John Kristensen of Carpenter Zuckerman in Los Angeles prevailed on an offensive motion for summary judgment against Polekatz in Houston. It nearly every case, the defendant clubs argue that the dancers are not employees and are instead independent contractors.
The clubs would like the dancers to be classified as independent contractors because it would allow them to do all the exploitive things they like to do to the dancers, including making them pay house fees to work, pool their tips, and force them to tip out staff, all while not paying the dancers any minimum wage. But the law has found repeatedly that exotic dancers are employees when the economic reality of their relationship with the club shows they are not actually independent.
The economic realities test the court apply to determine whether a worker is an independent contractor or an employee of a business is as follows:
- The degree of control exercised by the employer.
- The extent of relative investments of the employer and employee
- The degree to which the worker’s opportunity for profit and loss is controlled by the employer.
- The skill and initiative required in performing the job.
- The permanency of the relationship.
If the balance of these factors weigh in favor of the employer, the worker should be classified as an independent contractor. The classic example involves a skilled worker, such as an electrician, on a construction project. The general contractor may recruit the electrician for the job, give him some direction, and pay him from the funds received by the client. But the electrician uses his own judgment in installing electrical materials, invests in his own tools, sets his own price for the work, uses his own skillset for the work, and moves onto another construction job once he has completed his work on this particular site. This is an independent contractor.
But nearly every jurisdiction in the country has held that exotic dancers are employees. Here is what Judge Andrew Hanen had to say about the issue in Johnson v. Polekatz: