The exotic dancer’s long legs wrap upside down around the shiny chrome pole as she gazes down at the floor six feet below her face. The bass beat emitting from the strip club’s speakers is pumping out dance music. She loosens her legs from the pole for a head-first descent—but then a rapid freefall causes her to land on her face. She later finds out that she has a broken jaw and fractured cheekbone—but no health insurance or worker’s compensation insurance to pay her medical bills.
Brad: Brad Nakase, Attorney
People don’t realize that dancers are acrobats and athletes in their rights. The acrobat entertainers on poles at Cirque du Soleil are pole dancers. It takes a tremendous upper and lowers body strength to be a pole dancer.
An injured dancer will have considerably more recourse against an employer in today’s legal landscape. Lawyers who represent clients who work in the field of adult entertainment are utilizing AB 5, a law enacted by California in 2019. AB 5 clarifies the status of exotic dancers—namely, whether they can be classified as employees or independent contractors.
Under the new law, the three-pronged “ABC” test imposes additional, specific guidelines for determining whether workers, including strippers, are to be classified as independent contractors or employees. If a strip club wants to assert that its exotic dancers are, in fact, independent contractors, then the business shall have to demonstrate that:
- the exotic dancers or strippers are indeed outside the control and direction of the employer;
- the work of the exotic dancer or stripper is not central to the employer’s business;
- the exotic dancer or stripper does possess an independent business related to the work being performed for the employer.
To continue being classified as an independent contractor, an adult entertainer must meet all requirements set forth above. Under this test, adult entertainers will generally no longer be classified as independent contractors, and employers need to be aware of that. Because a strip club’s primary business consists of adult entertainment presented by strippers who perform dance routines, a stripper is considered central to the owner’s business. Strippers and adult entertainers will want to determine whether they have a valid claim. Employers, to avoid liability, ought to do the same thing. Thus, it is wise to schedule a consultation with a lawyer who specializes in the adult entertainment field.
What are the rights of strippers and exotic dancers under California’s AB5 law?
Classifying strippers as employees rather than merely as independent contractors affords the adult entertainer many more legal rights. In addition to protecting employee strippers from racism, sexual misconduct or harassment, and discrimination, the law forbids employer retaliation. Strippers who believe that such is the case might decide to file lawsuits on their behalf, or even a class-action lawsuit, in which attorneys represent a large group of people in a single case.
If you are an employer confronted with legal issues surrounding your exotic dancers, you should consult a lawyer about your legal position and best options. We have many years of experience with claims regarding allegedly unfair business practices.
Can Strippers Form Union
Under AB 5, an exotic dancer may have the right to unionize—to have a collective voice when dealing with management. Unions will make demands regarding wages and working conditions for their members. In a union, before action is taken, the majority of the members have to vote to agree on it.
AB 5 was enacted in order to right the perceived wrongs caused by classifying jobs as independent contractors—in this case, the characterization by strip clubs of the work of the adult entertainers. The law will furnish exotic dancers with rights and protections afforded by law to employees generally. Strip clubs will now have to pay more taxes and implement new policies. Employee status means that the employees will have more rights, including possibly the right to bargain collectively regarding wages and working conditions. A California lawyer specializing in representing strippers and exotic dancers can help you learn more about your rights and duties as an employer under California’s AB 5 law.
What does AB 5 mean for California strippers and strip clubs?
Lawyers representing strippers and others in the adult entertainment field assert that AB-6 expands legal protection. When the bill was proposed, its proponents argued that it would improve adult entertainment workers’ lives, benefits, and working conditions by reclassifying them as employees. The bill was introduced in the California Legislature by Assemblywoman Lorena Gonzalez (D-San Diego).
On the other hand, owners of strip clubs countered by arguing that AB 5 has resulted in immediate financial losses because clubs now have to pay strippers and dancers benefits and taxes, social security, and insurance. A few strip clubs have been attempting to find ways around the law by passing these costs to the strippers by:
- imposing higher house fees;
- requiring the dancer to provide the first few dancers at no charge;
- taking a higher percentage of tips, and
- cutting back the hours of those strippers who are classified as employees.
Strip clubs are engaging in such tactics to make the employee status of strippers, adult entertainers, and exotic dancers appear much less favorable than the status of an independent contractor. The underlying idea is to encourage exotic dancers to remain independent contractors and refrain from asserting their rights to be classified as employees. Such practices, however, are illegal because they can be regarded as retaliatory. If dancers and strippers have employee status, they have a legal right to unionize.
If the owner or operator is confronted by a lawsuit claiming retaliation or any other legal violation, the employer needs to seek legal counsel. The attorneys at Nakase Law Firm can discuss your rights and options under AB 5 and other laws regulating exotic dancers to determine the best response to any claims being asserted.
Do strippers think California AB 5 is a positive change?
Yes. Soldiers of Pole, a group of exotic dancers in Los Angeles, has been trying to unionize strippers in California. Lawyers who represent strippers and exotic dancers favor AB 5 and the additional tools it will furnish strippers for collective bargaining.
Several strip club owners have responded to the new law by having their dancers and strippers enter into new contractual agreements. In some cases, owners have increased the number of house fees charged to their strippers. Many strippers view AB5 as reducing their earning capacity rather than increasing benefits and stability.
AB 5 has prompted adverse reactions from businesses in other industries as well. As freelance writers and editors are being laid off in the media, business owners have blamed the law for the cuts. While some voices have been strongly advocating for the law, quite a few—including sex workers—have also opposed it. Many strippers are protesting the law, citing their right to choose their employment status and the conditions of when and how they will perform. While AB 5 assigns much more responsibility to the club owners for the strippers, it also provides owners greater control over them and how they work.
Will topless dancers, strippers, and exotic dancers be classified as independent contractors or employees?
Strip clubs or gentlemen’s clubs must follow the same laws applicable to any other business. Many gentlemen’s clubs seek to categorize their strippers as independent contractors who are not protected under the federal Fair Labor Standards Act guidelines, which govern minimum wages, employee benefits, working conditions, and paid leave.
AB 5 classifies workers as employees rather than independent contractors if the worker fails to satisfy all three of the following requirements:
- The worker is outside the control and direction of the company.
- Their work is not central to the business of the company.
- They possess an independent business related to the work being performed for the company.
Since exotic dancers are the primary focus of a strip club’s business, strippers and dancers are classified as employees under AB 5. Regardless of the flexibility of the terms and conditions of a contract, it is a fact that strip clubs nevertheless do exercise considerable control over their adult entertainers as employees. The gentleman’s club typically has a lot of input regarding the stripper’s appearance, costumes, performance themes, stage rotation, showtimes, and shift duration. Therefore, under AB 5, all strippers, nude dancers, topless dancers, and exotic dancers must be classified as employees. Any gentlemen’s club that does not correctly classify its strippers, dancers, and similar entertainers expose itself to potential legal action.
Why will strippers benefit from being classified as employees?
Granted, strippers who are categorized as independent contractors will enjoy greater flexibility and control over their hours and the specific details of their work. Reclassification as an employee means greater protection under AB 5. Following are just some of the reasons that employee status favors an adult entertainer:
Job security for exotic dancers
Adult entertainers having employee status possess greater job security than do independent contractors. An employment contract, when terminated, is subject to far more laws and regulatory control than is an independent contractor’s agreement. An employee cannot be replaced as easily or as readily as an independent contractor. Employees who believe they have been now having enhanced opportunities to file a discrimination or retaliation claim.
Sexual harassment and equal opportunity policies for exotic dancers
As employees, strippers have legal recourse if they suffer discrimination or retaliation. Thus, employees who believe that they are receiving fewer shifts or less pay than a colleague due to race, physical appearance, gender, sexual orientation, or disability might decide to file a claim. If there is a union in place, the union will be able to establish a sexual harassment policy for the industry. Employees might decide to band together to file a class-action suit against the club. Please contact a California lawyer who specializes in representing strippers and other adult entertainers for more information.
An exotic dancer will receive paid leave as required by law by being classified as an employee.
Workers’ compensation for adult entertainers
Exotic dancers who are injured on the job and have employee status must have their workers’ compensation insurance paid by the strip club. Workers’ compensation includes payments for temporary or permanent disability and disability payments if the employee can no longer work. The workers’ compensation system gives adult entertainers a degree of income while recovering from injuries.
Regulated hours and breaks for strippers
California has regulations limiting the number of hours worked without a break. If adult entertainers cannot take a break or are asked to work straight through a break period, then the strip club must pay them for the missed break. Hourly earnings for work performed cannot fall below the minimum wage set by law. In California, the minimum wage is currently $12.00 per hour.
How has AB 5 been received in California?
AB 5 has been a topic of heated debate. The law aims to reclassify gig economy workers—including strippers and adult entertainers—as employees and provide them with legal rights equal to those employees enjoy. In all industries involved, we have seen a backlash against the law from both workers and employers. The media’s focus has been directed toward ride-sharing drivers for companies such as Lyft and Uber. However, AB 5 is causing issues in many industries, such as tech sectors and adult entertainment—including strippers and other adult entertainment areas.
California’s AB 5 statute was crafted to protect the rights of gig economy workers—by expanding existing laws on wage and workplace safety that already pertain to exotic dancers. The 2019 law requires employers to provide at least the minimum wage, any overtime pay, access to health care, and the opportunity to join a union. AB 5 may also protect strippers and adult entertainers. In the past, strip clubs and adult entertainment venues classified their strippers as independent contractors.
Whenever a stripper or adult entertainer is classified as an employee, the strip club, as a consequence, is required to pay Social Security/FICA, payroll tax, workers’ compensation insurance, and Medicare. In addition, the strip club must also provide paid leave, set meal breaks, and health care. An attorney representing strippers will sometimes file a class-action lawsuit on behalf of a large group.
How have exotic dancer laws changed since AB 5 was implemented in California?
Now that strippers should be classified as employees, awareness of their rights under California’s AB 5 law grows. A group called Soldiers of Pole has spearheaded protests, reaching out to dancers at many clubs. Many patrons and security staff have become curious and requested more information about these protests.
The shift from independent contractor to employee status means that exotic dancers are now protected under laws prohibiting discrimination and sexual misconduct and regulations covering workers’ compensation and minimum wage. Unfortunately, sexual misconduct does sometimes occur in strip clubs, and at times, club owners do not take it seriously enough. Some exotic dancers who have reported incidents have suffered reprisals, including firing because the owners consider them a risk. Doing so, however, is unlawful and thus subjects the owner to liability.
Some strip clubs have responded by inserting so-called “Release of Claims” clauses in their new contracts with dancers. By signing a contract containing such a clause, strippers supposedly waive their right to sue the club for any claims of past wage theft. Cash incentives are sometimes offered for signing these contracts, which, however, are legally suspect. Many exotic dancers have spoken to the media about clubs’ unfair practices regarding AB 5. Usually, they decline to give their names or go on the record for fear of job loss or other retaliation. If you want to consult a lawyer at no charge about such a contract, please search for attorneys near me who specialize in representing adult entertainment businesses. The attorney can help you understand the contract and its effect on you and your business.
Many strippers also report that clubs are implementing various new policies, requiring the stripper to perform the first few dances for free or tripling house fees. These tactics are used to pass the dancer or stripper the burden of payroll taxes and any other taxes applicable under state and federal law. Some lawyers in this area predict more class-action lawsuits that will seek to protect strippers from unlawful treatment. Other clubs have reduced wages for strippers classified as employees in retaliation for previous lawsuits and make the independent contractor status appear to be a better option. In some cases, a court order may be issued to compel the strip club to remove the possibility of independent contractor status.
The strip club where I work is still classifying us as independent contractors. What should I do?
Under California’s AB 5 law, the strippers and exotic dancers should have received a notice from the club about AB 5 and what the changes would involve. If the strip club is forcing dancers to continue as independent contractors, then the club is probably acting unlawfully. A number of groups in California are protesting against strip clubs that have not yet implemented the required changes. You can also seek legal advice from a lawyer specializing in representing adult entertainment venues. The Nakase Law Firm will discuss your rights under AB 5, the laws affecting exotic dancers in California, and the best course of action for your particular case.
Have strippers filed lawsuits against clubs for misclassification as independent contractors?
Lawyers active in this area have filed many class-action lawsuits against strip clubs for misclassifying their exotic dancers and strippers as independent contractors:
- In 2016, Déjà Vu settled for $6.5 million after a class-action lawsuit accused them of intentionally misclassifying over 28,000 strippers as independent contractors.
- Two years later, in the fall of 2018, Déjà Vu also became the focus of another misclassification lawsuit. The class involved 5,800 employees and 25 strip clubs in California. The case settled for $1.5 million, and Déjà Vu was required to reclassify all the plaintiffs as employees.
These are just two of the most publicized lawsuits due to the large size of the Déjà Vu strip club chain. Due to strip clubs’ general reluctance to grant their workers the required employee status, strippers will likely bring more class-action lawsuits shortly.