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Exotic Dancers’ Worker Status Decided Too Early in Wage Suit (1)

Aug. 16, 2019, 5:42 PMUpdated: Aug. 16, 2019, 8:50 PM

A wage and hour suit brought by a group of Arizona exotic dancers against their club’s owners got reinstated by the Ninth Circuit Aug. 16 after the appeals court said it was dismissed too soon.

The trial court erred when it analyzed the dancers’ employment status while deciding Lé Girls Cabaret’s motion to dismiss, Judge A. Wallace Tashima said for the court. That inquiry goes to the central merits of the dispute and should be resolved by a fact finder at the summary judgment stage or at trial, he said.

Motions to dismiss are usually the first response to a complaint. They typically deal with threshold issues like a court’s authority to hear a case, or the plausibility of a suit’s claims, and generally don’t resolve factual disagreements.

The dancers say they are employees of Lé Girls Cabaret and are therefore entitled to such benefits of the Fair Labor Standards Act as at least minimum wage for all hours worked and overtime wages for hours worked beyond 40 per week. The cabaret counters they are independent contractors and so not covered by the law.

The trial court dismissed the case for lack of subject matter jurisdiction after determining the dancers were independent contractors, reasoning that employee status under the FLSA is an “antecedent jurisdictional issue.” But that conclusion is wrong, as a matter of law, Tashima said for the U.S. Court of Appeals for the Ninth Circuit.

No mention is made of employment status in the jurisdiction-granting provisions of the law, or of jurisdiction in the part of the FLSA that allows “employees” to sue for proper wages, he said. “There is no indication whatsoever that employee status is a jurisdictional limitation.”

The case returns to the trial court with instructions that it should reserve its analysis on the dancers’ employment status for when it addresses the merits of their FLSA claims.

No Ninth Circuit Precedent

The case could have “huge” repercussions if it ends up back before the Ninth Circuit, which has yet to rule on worker classification issues in FLSA cases involving exotic dancers, plaintiffs’ attorney Andrew Sterling said.

That’s because most cases exploring the employment status of exotic dancers are quickly settled, according to the lawyer. “My assumption is the clubs don’t want a Ninth Circuit opinion on this case,” Sterling said.

Other federal appeals courts have ruled on dancer FLSA claims, finding in favor of the dancers both times, according to Sterling. In April 2018, the Eleventh Circuit granted exotic dancers in Louisiana expanded rights to pursue wage claims. The Fourth Circuit in 2016 also sided with dancers alleging they were misclassified as contractors.

If the U.S. District Court in Arizona issues summary judgment against the workers and a settlement isn’t reached, Sterling said he would appeal the result to the Ninth Circuit.

A lawyer representing the defendant couldn’t be immediately reached for comment.

Prior Cases

Courts have decided a number of cases involving FLSA claims by exotic dancers in recent years. Such cases go back to at least the 1990s, Sterling said.

Most recently, a group of California dancers sued their club management in January alleging discrimination from an earlier wage lawsuit. The dancers had previously won a $6.6 million settlement from the owner of a chain of adult entertainment clubs.

The cases can be costly and often fail to address larger systemic issues of power in the adult entertainment industry, Sterling said.

“I’m kind of jaded at this point,” Sterling said of his work seeking change in the exotic dance industry.

Judges Ferdinand F. Fernandez and John B. Owens joined the opinion.

Rusing Lopez & Lizardi PLLC and the Bendau Law Firm PLLC represent the dancers. Buchalter APC represents Stetson Desert Project, which does business as Lé Girls Cabaret.

The case is Tijerino v. Stetson Desert Project LLC, 9th Cir., No. 18-16013, 8/16/19.

(Updated with additional reporting.)

To contact the reporters on this story: Porter Wells in Washington at pwells@bloomberglaw.com; Andrew Wallender in Washington at awallender@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com; Simon Nadel at snadel@bloomberglaw.com

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