O’Farrell Dancers Win Huge Settlement from Mitchell Brothers
After seven years of difficult and often brutal legal confrontation, erotic dancers at the Mitchell Brothers O’Farrell Theater in San Francisco have reached a settlement in their suit against the club. Under the terms of the settlement, over 500 current and former employees of San Francisco’s oldest and most renowned lap dancing emporium will receive $2.85 million from the club over the next three years.
Dancers Ellen Vickery and Jennifer Bryce filed suit against the Mitchell Brothers in March 1991, claiming that dancers at the theater should legally be classified as employees, rather than as independent contractors as was the practice at the theater. They sought compensation for back wages and overtime, workers’ compensation, social security, unemployment insurance, and also for the return of stage and other fees paid by dancers to theater management for the right to work there. Rather than seeking compensation only for themselves, Vickery and Bryce initiated a class action suit on behalf of all dancers working at the theater. They were later joined by nine other dancers as “named plaintiffs” in the case.
The settlement, negotiated with the active assistance of presiding Superior Court Judge Alfred A. Chiantelli and subject to a fairness hearing September 18, stipulates that 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 in three installments: January 1999, May 2000, and August 2001. Payments will be made on the basis of seniority, with dancers who worked at the theater earliest paid from the first installment, and dancers who began work more recently reimbursed from subsequent installments. While the exact amounts cannot be determined until all plaintiffs file for settlement, payments to individual dancers are expected to range from small sums for to hefty lump sums for dancers who worked as many as 900 shifts.
Dancers who specifically requested exclusion from the class action — because they preferred retaining independent contractor status, or because they succumbed to management pressure to disassociate from the suit as they testified in court — will also be classified as employees, but will not receive settlement payments.
Beth Ross, who represented the dancers along with Lynn Rossman Farris, says she is “very, very pleased” with the settlement. Although it includes no admission of wrongdoing by the theater, the settlement does commit the theater to treat all dancers as employees, to pay workers’ compensation, unemployment, social security, and payroll taxes, and to refrain from charging the stage and booking fees that angered the dancers and inspired the legal action in the first place. Although the settlement gives the Mitchell Brothers until October to comply, dancers have been considered employees by the theater since July 1.
Ross 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.” She notes that the potential $12 million judgment if the case had gone to trial could have bankrupted the theater entirely.
Whether erotic dancers should be legally classified as employees or independent contractors has been a contested issue in the erotic entertainment industry for several years. At most lap dancing and strip clubs, dancers are still designated independent contractors, paid no wages, and often required to pay substantial “stage fees” to the clubs as well. As employees, dancers are entitled to minimum wage pay and benefits, cannot be required to pay stage fees or kick back tips to management, and can petition for union representation with the protection of the National Labor Relations Board.
Recent court and labor commission rulings in California, Oregon, Alaska, and Texas have all declared dancers to be employees. In a 1995 decision, nine dancers in Portland, Oregon were certified as employees by the Oregon Bureau of Labor and Industries, and awarded $45,441 in back wages, plus attorney fees and court costs. In a second 1995 decision, a dancer at San Francisco’s Market Street Cinema was declared an employee in San Francisco Superior Court and awarded $52,600 for back wages, stage fees, and penalties.
“There is definitely a trend favoring employee status over contractor status,” says Clarence. “Any club without awareness of the legal landscape is wearing blinders.” Phil Yoder, publisher of The T&A Times, an industry newsletter, 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 gone unchallenged. As the demographics of women working as erotic dancers has shifted to include many college students and single mothers, collective action to challenge often abusive conditions has 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). They 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.
Ironically, the most successful legal and union efforts have come against two theaters known for their relatively positive attitudes toward dancers. The Lusty Lady, long known as a “woman-run” business (a majority of its directors are women), granted employee status to dancers long before other clubs were forced by legal action to follow suit. When June Cade took over as manager of the Lusty Lady theater in Seattle, the first thing she did was to make the dancers’ dressing room off limits to male staff who were used to coming and going at will. She saw this as a matter of basic privacy and respect for the dancers. She also instituted a policy of hiring only women as day managers at the club. When dancers in San Francisco began their union organizing efforts, Cade was shocked and anguished. She has since resigned.
Working conditions at the O’Farrell Theater, while far from ideal, have also been noticeably better than those at most strip and lap dancing clubs, especially after the death of allegedly abusive Artie Mitchell. “Jim [Mitchell, the surviving owner] is a thoughtful person,” says Clarence, who describes herself as a feminist. “He cares about the kind of place that he runs. There isn’t anybody in the country who’s treated dancers better than he has.”
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 agreement 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.” It looks like Vickery, Bryce, Ross and Farris have done just that.
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Union Election Ordered in Anchorage
Dancer action against club owners is also heating up in Anchorage, Alaska, where strippers at the Showboat Show Club are in the midst of an election to determine if they will be represented by the Hotel and Restaurant Employees Union, AFL-CIO.
Dancers at the club have been organizing for union representation for over a year, led by Tora Brawley, a former dancer at the club now working full-time for the union. Early in July, the Alaska Labor Relations Board certified that Brawley and other organizers had collected sufficient requests for union representation for an election to be ordered. In light of a long series of unfair labor practices by club owners, the Board ordered that election ballots be mailed to dancers at their homes so that they could vote free from intimidation by club owners and managers. (Brawley and two other dancers were awarded $40,000 in back wages and damages after they were illegally fired. A petition for a Gissell bargaining order that would have certified the union without an election — a procedure used when workplace intimidation makes a fair election impossible — was initially granted by the Board, then overruled on appeal.) Dancers have until August 12 to return their ballots.
Brawley, a single mother, student at the University of Alaska and apprentice midwife, expects dancers at Showboat to opt for union representation despite continuing intimidation, firings, and other hostilities from club management. Locked out of organizing at the club, Brawley and other organizers have been going house to house, talking to dancers about the benefits of going union. “Our message is short and powerful,” says Brawley. “We say, ‘You can do this, ladies. You don’t have to subject yourself to being treated like this any more.'”
The major task, says Brawley, is convincing dancers that it’s possible to challenge men in positions of power over them, and prevail. She notes that dancers are used to being disrespected because of the nature of the work they do, and are often people who are “used to good news going bad.” Brawley herself had to battle dismissive stereotypes of strippers within the local labor movement before she persuaded the Hotel and Restaurant Employees union to take the dancers on. “I kept on saying the same thing, over and over again,” she says, “that we are legitimate human being and we need your help.”
Brawley is happy to have the enthusiastic backing of state AFL-CIO director Richard Seward. Seward was the keynote speaker at a union rally at the Showboat Club July 17, offering the legitimacy and public support of organized labor to the dancers. It was Seward who initiated contact between Brawley and the Hotel and Restaurant Employees union, arranging a meeting to show union representatives that Brawley was a person with serious labor concerns, rather than someone conforming to the stereotype of a thoughtless stripper.
“As time goes on,” Brawley says, “the shock value of who I am goes away and my legitimacy increases.” She notes, however, that even after seven months of working for the union, her acceptance by other organizers is still strained. “They feel they’ve done their duty by employing me,” she says. “I burn out and want to quit almost every day, but I get tremendous moral support and coaching from the Lusty Lady organizers in San Francisco.” Brawley also hopes to tap $20,000 in unclaimed funds from a $300,000 settlement against Showboat in the early 1990’s, and use the funds to support future organizing efforts.
“It’s difficult organizing people who have never been organized before,” says Brawley, “but our message is right. If we don’t win this election, we’ll just refile and try again.”
July 31, 1998
Copyright © 1998 David Steinberg
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