- A Florida judge has denied an employer's request to bill its former worker for fees and costs of a motion after she filed an Fair Labor Standards Act (FLSA) lawsuit (Montgomery v. 3300 Corp. d/b/a Pink Champagne and Showgirls, No. 18-cv-62683 (S.D. Fla. Feb. 14, 2019)). The judge also denied the employer's request for Rule 11 sanctions against the worker, an exotic dancer, and her counsel.
- In her lawsuit, Kia Montgomery, alleged the adult entertainment club misclassified her as an independent contractor and, therefore, did not pay her the minimum wage and overtime required by the FLSA; her only compensation was tips from the club's patrons, she said. In turn, the employer asked the court to impose sanctions, citing the Federal Rules of Civil Procedure's Rule 11. It argued that she brought a baseless "cookie-cutter lawsuit" and she failed to support her claims. The business claimed it did not know Montgomery and that she was not a dancer at the club. Montgomery, however, argued that because she received no payments, she did not have documentation such as time sheets or pay checks. She provided, however, a police report describing her as a dancer at the club after an altercation with a manager which indicated, the judge said, that her attorney had reason to believe she was a dancer at the club.
- The judge said Montgomery demonstrated a reasonable basis for filing the lawsuit and found no reason to award sanctions.
Members of the gig economy across a multitude of industries are pushing back against their classification, arguing they're actually employees. Employers have triumphed in some of these cases; a district federal court judge found in a closely-watched case that Grubhub properly classified a driver as an independent contractor under California law because it "exercised little control over the details" of the plaintiff's work, for example.
Many employers can stave off misclassification issues by limiting the control they exercise over their contracted workforce to ensure the workers remain truly independent. This requires an understanding of all relevant laws and judicial tests.
But some say the answer lies in worker satisfaction; SurveyMonkey last year decided to offer benefits to contractors — a move suggested by the company's employees, SurveyMonkey CPO Becky Cantieri previously told HR Dive. The benefits package contractors receive includes health, dental and vision, with the vendor providing 85% of the employee premium and 50% of the dependent premium.
As for dancers in particular, employee status may bring desirable perks — a reliable wage, as opposed to tips, as Montgomery pointed out — but it might not be for everyone, high-profile exotic dancer Stormy Daniels wrote in the Los Angeles Times. Exotic dancers often expect anonymity, flexibility and decision making privileges, she said. Should clubs be legally required to employ dancers as employees, these perks may disappear. Daniels noted, however, that she is a spokesperson for a company that owns a number of such clubs.