LEGAL GUIDE
Written by attorney Douglas M Larsen | Nov 3, 2012

Strippers Misclassified as Independent Contractors Win $12.9 Million

The Los Angeles Daily Journal (a legal periodical) today reported on a $12.9 million settlement among "exotic" dancers (strippers) and the "gentlemens' clubs" (strip joints) where they plied their trade. (Did you get the pun?) Trauth v. Spearmint Rhino Companies Worldwide, Inc., Case No.EDCV-09-01316, (C.D. Cal., Order filed October 5, 2012). Several of the dancers filed a class action lawsuit contending that they were misclassified as independent contractors instead of employees. On top of that, they claimed their compensation was below the federal minimum wage, and that the businesses wrongfully charged the dancers for certain expenses. (I bet you didn't know it was so expensive to remove your clothing in public.)

Dancers in six states will share about $10 million. The lawyers representing them will receive over $2 million. That is a lot of money. Of course, there are many plaintiffs who must share the $10 million. And there are far fewer lawyers who will split the $2 million.

So why do I tell you about a stripper case in federal district court in Los Angeles? Because it illustrates a very important point. Many businesses attempt to save money on payroll tax obligations, workers' compensation premiums, fringe benefits and other costs by classifying employees as independent contractors.

A business is an employer as opposed to a contracting party if it has the right to control the means and methods of the services provided. I realize this is easier to say than to understand. Many people like to consider some of the IRS questions to help them understand this concept. For example, who provides the tools of the trade? Who determines when the workers perform services? Is the work of the kind that is typically performed by an outside business? Does the worker maintain a business license and workers' compensation insurance?

Except in obvious cases, I would suggest that an employer think very hard before classifying a worker as an independent contractor. The costs associated with a challenge are not worth the risk. $12.9 million in this case.

The issue ofmisclassificationcan arise in many ways. For example, a worker may be audited for non-payment of taxes. The worker claims (s)he was an employee and the employer should have withheld the taxes. Perhaps a worker injures him/herself and makes a claim on the workers' compensation policy. Or a worker might claim unemployment insurance.

Business owners -- don't be foolish and attempt to save a few bucks. It won't be worth it in the long run.

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