Tuesday, February 11, 2014

Employee Misclassification and Exotic Dancers

Employers are responsible for ensuring that individuals who work for them are correctly classified as either “employees” or “independent contractors” in accordance with state and federal laws and regulations. Although at first it may seem as though these terms are simply “labels,” many employees often learn that their classification significantly impacts their rights and benefits. People classified as “employees” are eligible to receive family and medical leave, overtime pay, minimum wage, unemployment insurance, healthcare coverage, and employer contributions to Social Security and Medicare tax payments, among other benefits and protections. Accordingly, if an employer misclassifies an “employee” as an “independent contractor,” that individual will be unable to receive those benefits.

There are a number of different tests that courts utilize to determine whether an individual should be classified as an employee or as an independent contractor. For example, the Second Circuit employs the “economic realities test” and considers a number of factors in reaching its decisions, including the degree of control that the employer exercises over its workers; the degree of skill and initiative required for workers to perform their tasks; and the extent to which the individual’s work is an integral part of the employer’s business. In Connecticut, courts employ the “ABC test” codified in Conn. Gen. Stat. §31-222(a)(1)(B), and the individual must satisfy all components of the test in order to deemed an independent contractor.

Recently, there have been a number of lawsuits filed in various jurisdictions in which exotic dancers have asserted state and federal claims against strip club owners who have misclassified them as independent contractors rather than as employees. Exotic dancers in New York, Colorado, California, Maryland, West Virginia, and Georgia have filed wage and hour cases in attempts to recover unpaid wages, as many of them were not paid minimum wage, or overtime pay, as required by state labor laws. Some of these cases are still pending, but so far, dancers in California have negotiated a $13-million settlement and in the case of In re Penthouse Executive Club in New York, exotic dancers were able to negotiate an $8 million settlement for unpaid hourly fees and wages.

If you believe that you may be misclassified as an independent contractor and are entitled to the benefits that employees receive, contact Attorney David Jaffe at 860-266-4278 or 877-783-5367, who has represented employees with similar claims in Connecticut.