Different Stripper, Same Claim: New Case Continues to Strip Away the Notion of Independent Contractor Status

A new independent contractor case serves as a painful reminder to Massachusetts businesses that our state and its legislators do not understand business.  Many businesses, by their very nature or set up, rely upon contractors or consultants to meet their business needs.  Indeed, such statuses have been commonplace for tattoo parlors, hair salons, real estate companies, courier services, and strip clubs.  Significantly, many of the workers in these businesses want to be classified as independent contractors for a variety of reasons, such as the ability to earn more money for their services.

Most businesses know the naked truth about Massachusetts: it is entirely rigid in its approach to independent contractor status.  By statute, there is a presumption of employment, which means businesses must prove that someone is not an employee of their company.  To do that, businesses must establish every single prong of the following three-prong test: 1) the worker has freedom from control and direction in performing the services, (2) the worker’s services were outside the usual course of business, and (3) the worker is customarily engaged in a trade that is of the same nature of the services performed.

As one of our clients says, “it’s all good until it’s not,” which could be the tag line for the latest independent contractor case brought by two strippers at the King’s Inn Gentlemen’s Club in Dartmouth.  While many strippers, including perhaps these two at one time, appear to have enjoyed the freedom independent contractor status brings, in this lawsuit, the workers claim that such status denied them minimum wage and other wage and hour law protections.

A recurring issue taking the stage in this industry is whether strippers are ‘taking it off’ as employees or independent contractors.  Given the nature of the work and the test employed in Massachusetts, the answer to this question is unfortunately not what businesses want it to be: strippers are employees; the work they perform is what the strip club is all about.  As a Massachusetts trial court, in 2009, in Chaves v. King Arthur’s Lounge, so aptly stated: “A court would need to be blind to human instinct to decide that live nude entertainment was equivalent to the wallpaper of routinely-televised matches, games, tournaments and sports talk in such a place.  Dancing is an integral part of King Arthur’s business.”

Misclassifying workers is costly and, therefore, worth the investment in preventive consultation costs.  Please contact any of the attorneys at Royal LLP at (413) 586-2288 to arrange for such or if you have questions regarding the classification of workers, wage and hour issues generally, or any other employment-related matters.

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