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Stripping away rights? 

Missy Wilkinson on New Orleans dancers suing a gentlemen's club

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Attorney Alexandra Mora and her client Kelly Moncheski want to change the way strip clubs operate in New Orleans. They want exotic dancers to have access to benefits such as workers' compensation, a minimum wage and overtime pay, and they want club managers to stop skimming off portions of dancers' tips. The two also want to end the practice of classifying dancers as unpaid independent contractors. To that end, Moncheski is suing Rick's Cabaret, where she worked as a dancer from February to August 2013, according to her lawsuit. The suit alleges club management willfully misclassified dancers as independent contractors instead of employees to avoid paying them minimum wage — and to maximize the club's profits.

  "Employers try to get around all sorts of labor laws, tax laws, workers' compensation laws, by misclassifying their employees as independent contractors," says Mora, who

advised Moncheski not to grant Gambit an interview. "Hopefully, because of this lawsuit, [Rick's Cabaret] would have to change their practices and dancers would be subject to greater protections under the law, which would have other beneficial effects."

  Many dancers don't want things to change, however. Among that rank is "Daisy," who has danced at Rick's Cabaret since 1996. She is one of a group of five dancers who has hired a lawyer to intervene in the case and represent their right to remain independent contractors.

  "We started this with the lawyer because we weren't comfortable being named in Kelly's suit," says Daisy, who declined to identify her lawyer. "We don't want to change the status quo. I have not spoken to a single person who is willing to become an employee."

  Daisy says the job's flexibility is one of its major attractions. "Cinnamin," a dancer who has worked at more than 30 clubs nationwide, including Rick's Sporting Saloon, agrees.

  "A big part of why I'm in this job is because I can schedule when I want," Cinnamin says. "Some dancers have kids, so being able to show up whenever they feel like it works a lot better. I agree a lot of dancers are misclassified in other parts of the country. I just don't see it here [in New Orleans]."

  At Rick's Cabaret, dancers aren't paid an hourly wage. Instead, the entertainers pay the club a fee for the privilege of selling lap dances there. The club also takes a cut of dancers' earnings. It's similar to the model followed by most strip clubs in New Orleans and elsewhere.

  Daisy says the fee dancers pay to work in the clubs is used "as a rental fee of the facility. What the fee pays for is club advertising, the space, security, the locker room facility and all kinds of stuff. If we do a VIP dance, we give management $25 from the VIP room. The management checks up on you the whole time you are in the VIP. Yeah, you're tipping out, but you are paying security for being there."

  Attorney Walter Wolf, who works at Mora's law office, dismisses the rental fee analogy, which has been used in similar lawsuits. "That argument has been made in a number of courts and has been rejected by every court," he says. "It comes down to how much control management has. Does the employer have the right to tell the employee or independent contractor how to do their job? If it is similar to other cases, we believe the court will say [dancers] are not independent contractors."

  "From what we have seen, these clubs exercise a great deal of actual control over what the dancers wear, the hours, how they charge, etc. It changes [dancers'] status."

  Ironically, if dancers became employees of a club, management would have even more control. Cinnamin and Daisy say the minuses of that arrangement would outweigh the pluses. In addition to flexibility of schedules, being an independent contractor allows dancers to say "no" to customers — which is essential to maintaining safety and personal boundaries in a uniquely intimate setting.

  "We don't have to dance for a customer if we don't want to," Cinnamin says. "If we were employees, they could technically tell us, 'You have to dance for that guy.'"

  Cinnamin's argument tracks closely the arrangement at Deja Vu Showgirls, where she danced previously. That club gives dancers the option to be hired as independent contractors or as employees. The contract lists 18 points side by side, comparing independent contractor status with employee status. Along with benefits such as paid vacation, minimum wage, overtime pay and workers' compensation, there are the following requirements for employees: "As an Employee you will be required to perform for all customers. You may, at the direction of management, be required to give 'free' dances to certain customers. Management will tell you how to wear your hair, and how your makeup should look."

  Cinnamin says she has never seen a dancer opt to be an employee. "Nobody is that stupid," she says.

  How a Rick's Cabaret employee contract would look — or whether there will come a time when such a contract exists at all — is anyone's guess. Robert Watters and Chloe Watters, owners of Rick's Cabaret, did not return phone calls or reply to emails seeking comment. But Mora and Wolf are confident the courts will side with them.

  "There have been similar successful lawsuits like this around the country," Mora says. "There is a big collective action lawsuit similar to this one against Rick's Cabaret in New York. They share the same parent company, and there was a summary judgment recently in that case where the court ruled in favor of the dancers."

  Dancers at Rick's Cabaret in New York are now entitled to minimum wage. In other jurisdictions, King Arthur's Lounge in Chelsea, Mass., Centerfolds in Boston and Onyx in Atlanta have been sued successfully. Mora does not mention a lawsuit her client filed in 2012 against M.A.G. Enterprises in Philadelphia, Pa., which owns the club Cheerleaders. That case resulted in an out-of-court settlement.

  If Moncheski's lawsuit is successful, RCI Entertainment, which runs Rick's, will be required to pay her and other plaintiffs, which the lawsuit estimates to be more than 300 women, back wages at the minimum wage rate ($2.13 an hour for hospitality industry workers who make tips), overtime wages, liquidated damages, prejudgment interest, attorneys' fees, costs and penalties, as well as refunding tips, along with interest. At some point, Mora says, she will ask for permission to contact all the dancers who have worked at Rick's Cabaret over the last three years and invite them to join the lawsuit.

  "I would strongly urge anyone who is concerned about their rights to talk to an attorney soon, because the statute of limitations runs until they opt in to a lawsuit," Mora says.

  Daisy began a similar fight last month with her move to intervene in Moncheski's lawsuit.

  "We are going to start asking people ... if they want to join and become part of the collective," Daisy says. "We will accept anyone who works out here. It doesn't have to be [a dancer from] Rick's, because it will affect everyone."

  Although Daisy and Moncheski are approaching the issue of dancers' workplace rights from opposite directions, there is one statement in the lawsuit upon which they might agree: "Exotic dancers ... are essential to the success of the Club."

  The primary reason clubs exist is to showcase dancers, the lawsuit says. How these women might best be served from a legal perspective remains to be seen.

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