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Exotic Dancer is Shot
After a stripper got shot while working at a gentlemen's club, she sought workers' comp. But is she really an employee?
An exotic dancer worked in various clubs throughout North and South Carolina. It was typical for her to arrive at a club uninvited and unannounced. She arrived at a club, showed her identification to prove that she was at least 18 years old, and paid the required tip-out fee to the club before starting work. She did not fill out an employment application or sign an employment agreement. In this particular instance, she had previously danced at the club but did not remember when. The club gave her a rules sheet, she went to the dressing room to put on her outfit, and she danced. The club did not tell her how to dance. The club contained a stage for dancing, poles to assist the dancers, private rooms for dances, tables, chairs, couches and glasses for drinks. The club provided the dancers with a cleaning solution, towels, a basket for collecting money, and lockers for their belongings. The club did not pay the dancer but took a cut of her tips. She also tipped the DJ and bartender. The club had a right to fine her or refuse her readmission if she violated club rules.
She sought workers' compensation benefits. The club had no insurance so the uninsured employers' fund was forced to defend. The Workers' Compensation Commission denied the claim, finding that she was not an employee of the club. The dancer appealed. Was the commission correct in denying benefits to the dancer? A. No. The club had a right to fine or fire the dancer if she did not follow its rules, indicating an employment relationship. B. No. The club provided virtually all of the tools needed to perform the job, including towels, lockers, music, alcohol, tables, chairs, a stage, poles and customers -- showing an employment relationship. C. Yes. The club's lack of control over the manner the dancer performed her dances weighed against finding an employment relationship. How the court ruled: C. The South Carolina Court of Appeals held that the dancer was not entitled to benefits because she was not an employee of the club. Lewis v. L.B. Dynasty Inc., d/b/a Boom Boom Room Studio 54, No. 5032 (S.C. Ct. App. 09/05/12). The court explained that an analysis of the work relationship showed that the club did not have the right or exercise of control. There was no evidence showing that the club told the dancer how to dance. A is incorrect. The court said that the club's rules did not indicate an employment relationship. The clubs' right to terminate the relationship for violating its conditions did not make the dancer an employee. The dancer did not cite a significant restriction on her conduct that was not simply a requirement that she obey the law. B is incorrect. The court said that the equipment the club furnished was insignificant to determining the right to control. The club did nothing more than allow her onto its premises. From the standpoint of the club and its customers, the dancer brought her own equipment for her work. Editor's note: This feature is not intended as instructional material or to replace legal advice. Read more at the WorkersComp Forum homepage. November 2, 2012 Copyright 2012© LRP Publications |
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