Erotic dancers at the Mitchell Brothers O’Farrell Theater in San Francisco have won a landmark $2.85 million settlement of their long-pending suit against the club. The bitterly fought class-action suit, representing over 500 current and former employees of San Francisco’s oldest and most renowned lap dancing emporium, has been in litigation since March 1991. Dancers Ellen Vickery and Jennifer Bryce, later joined by nine other dancers as named plaintiffs in the case, claimed that dancers at the theater were in fact employees rather than independent contractors. They also claimed that as such they were entitled to wages and overtime, workers’ compensation, social security, unemployment insurance, and return of stage fees paid by dancers to theater management for the right to work there.
Under the terms of the settlement, negotiated with the active assistance of presiding Superior Court Judge Alfred A. Chiantelli and subject to a fairness hearing September 18th, dancers who worked at the theater between March 1991 and April 1998 will receive payments in proportion to the number of shifts they worked during that time. After attorney fees, a total of $1.65 million will be distributed to dancers over the next three years. According to attorneys for the dancers, payments to individual dancers will range from small change to large sums. An estimated 170 dancers who requested exclusion from the class action — preferring independent contractor status, or succumbing to alleged pressure from theater management — will not receive payments.
Beth Ross, one of the lawyers who represented the dancers, says that the settlement commits the theater to treating all dancers as employees, paying workers’ compensation, unemployment, social security, and payroll taxes, and refraining from charging the stage and booking fees that inspired the legal action in the first place.
She believes the Mitchell Brothers settlement will be “instrumental in shedding light on an issue of importance to workers everywhere, particularly computer programmers and other workers in this information age who are working in a stratified marketplace.
Misclassification of workers as independent contractors,” she emphasizes, “is not unique to sex workers. Employers generally do not want to have employees because employees are expensive.”
Nanci Clarence, who represented the Mitchell Brothers, also says she is pleased with the settlement. “We’re all happy that it’s over,” she said. “The doors stay open, we got this over with, and now we can go on with what we do best — putting on quality erotic performances.” She notes that the potential $12 million judgment if the case had gone to trial could have bankrupted the theater entirely.
At most lap dancing and strip clubs, dancers are still designated as independent contractors, and are often required to pay substantial “stage fees” to the clubs as well. Recent court and labor commission settlements in four states, however, have declared dancers to be employees.
“There is definitely a trend favoring employee status and disfavoring contractor status,” says Clarence. “Any club without awareness of the legal landscape is wearing blinders.”
Phil Yoder, publisher of an industry newsletter called The T&A Times, agrees. “To the best of my knowledge, there has not been a court decision anywhere in recent years where the dancers were considered independent contractors. The IRS has said they are employees and will fine you if you misclassify them.”
Other changes have also been brewing for some time in an industry whose questionable working conditions have long been the rule. As the demographics of women working as erotic dancers has shifted to include many college students and single mothers, collective action to challenge allegedly abusive conditions have become more common.
Dancers at the Lusty Lady Theater, a San Francisco peep show, successfully organized to be represented by the Service Employees International Union (AFL-CIO), and negotiated a groundbreaking union work contract in 1997 that included guaranteed work shifts, protection against arbitrary discipline and termination, automatic hourly wage increases, sick days, and a contracted procedure for pursuing grievances with management. A second contract, expanding these benefits, was negotiated earlier this year.
Erotic dancers in Anchorage, Philadelphia, Pittsburgh, and North Hollywood have taken steps toward organizing unions of their own, some with the active support of organizers from the Lusty Lady.
The size and scope of the settlement in the Vickery suit, and the prominence of the luxurious and long-standing O’Farrell Theater in the erotic entertainment industry, make it likely that the latest settlement will have a major impact on employer-employee relations at strip clubs and lap dancing theaters nationwide.
“Everyone,” says Yoder, “has been waiting to see what the other guy is going to do. They’re like ostriches. Humpty Dumpty is the wage and hour thing sitting on the wall. They’re waiting to see if someone’s going to come along and knock him off.”
Salon, July 14, 1998
Copyright © 1998 David Steinberg
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