Are strippers ‘creative professionals’ under FLSA?

Los Angeles: Spearmint Rhino

(July 9, 2009; Los Angeles, CA)

Wage and hour lawsuits are cropping up by the dozens these days — even in industries you’d least suspect.

Four female workers filed a suit against their company, claiming they were denied overtime pay.

Nothing out of the ordinary here — except that the employees were exotic dancers at clubs that offered “topless” or “totally nude entertainment.”

The nightclub said it didn’t have to pay the strippers overtime or minimum wage because their work fell under the “creative professional” exemption of the Fair Labor Standards Act. In other words, the company claimed the dancers’ primary duty was “the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”

That would be the “artistic endeavor” of dancing with no clothes on.

The dancers, on the other hand, were not so quick to identify their craft as art and sued for back wages.

Where did the court stand on this debate? Unfortunately, we won’t know just yet. Before the case could be heard, the judge dismissed it.

Why? The strippers filed the suit pseudonymously under the name “4 Exotic Dancers” — and the judge wouldn’t let the case proceed until the strippers publicly identified themselves.

The dancers were afraid they’d be retaliated against by the nightclubs they were suing in the form of harassment, termination and blacklisting. They also felt they’d be stigmatized if their identities were revealed publicly.

Courts do occasionally allow plaintiffs to testify under pseudonyms if it’s necessary to protect the person from injury or harassment.

Tough luck for the exotic dancers though — the court said that even though the strippers may “suffer some embarrassment or economic harm,” it’s not enough to warrant pseudonymity here. If they wish to file again, they’ll have to do it under their real names.

Still, what’s the lesson from this titillating case? Double-check who you’re classifying as exempt or non-exempt — problems can crop up where you least expect.

Cite: 4 Exotic Dancers v. Spearmint Rhino, et al., U.S. Dist. Ct. C.D. Cal, No. CV 08-4038 ABC (SSx)

author: Dan Wisniewski

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