Sitting down on a leather chair in front of a cluttered desk in downtown Philadelphia, a suited man handed me a stack of papers that detailed how much I could charge for a lap dance, what time I had to show up to the club, and how I needed to be shaved, primped and dressed. I tried to appear nonchalant as I flipped through the lengthy packet, but he could see that I was a little overwhelmed, so he casually outlined the rules of the strip club where I was about to start working as I read them over.
When I got to the last page, about employment classification, his demeanour changed. He leaned over the desk and pointed at two columns: “Here’s where you decide if you want to be an independent contractor or employee.”
“What’s the difference?” I asked.
“When you’re an independent contractor, you pay a fee to rent the space and get to keep your profits. When you’re an employee, we’ll take the profits from your dances and pay you a minimum wage, just like we would if you were a bartender selling drinks,” he explained.
When he put it like that, the choice seemed obvious. But, as I later learned, this “choice” was deceptive. Most authorities on the matter tend to agree that strippers in the United States should be considered employees, but clubs, for a variety of reasons, often mislead dancers into thinking the decision is up to them. On the one hand, it seems that strippers would significantly benefit from proper classification; however, a closer examination reveals that the question of whether or not they should fight for their labour rights is more complex than it seems.
Although there is still some debate around the classification of strippers in the United States, evidence points to employee status. According to the IRS, independent contractors control how they perform their jobs. In exchange, they have no job security nor benefits, but can work for various companies and set their own hours. Employees, on the other hand, have less control over their labour, yet are guaranteed a minimum wage, worker’s compensation, unemployment benefits and the right to unionise. Moreover, based on how the IRS website details the difference between these two categories, the choice of whether a worker is classified as an employee or a contractor is determined by the employer—not the other way around. A board member for The Adult Entertainment Union, Bob Maschi, confirmed this distinction: “It’s not the dancer’s choice to be an independent contractor or employee. If you’re treated like an employee, then you are an employee.”
Although the degree of control exerted by clubs varies, managers generally dictate a great deal about strippers’ working conditions, such as their hours, clothing, stage sets, how much money they can charge for dances and sometimes even whether they can work in other clubs. All these factors signify an employee relationship. Law professor Michael H. LeRoy confirms this in a 2017 study, where he found that in nearly every federal and state ruling on misclassification of dancers, judges have determined that strippers do indeed qualify as employees.
The practice of labelling dancers as contractors but still treating them like employees began back in the 1980s when the Mitchell Brothers O’Farrell Street Theatre in San Francisco stopped paying dancers a wage and charged them fees to work instead. Since then, American strip clubs have habitually misclassified dancers as independent contractors to avoid paying unemployment benefits, workers compensation and related taxes. In the past, to correct this misclassification, plenty of strippers have sued clubs, and in many cases, have won. However, most clubs have not changed how they treat their dancers. Instead, they present their workers with a “choice” much like the one that was given to me, in order to avoid lawsuits.
There are good reasons why strippers would want to fight for their employee classification. One of the biggest issues with misclassification is a dancer’s lost wages. As noted above, most American clubs don’t pay dancers a wage, yet they still require these workers to show up for eight hour shifts a few days a week. On top of that, they generally also require dancers to pay a fee to work in the club, which can range anywhere from $20 to $200. They also have to tip out a chunk of their wages to various members of the club’s staff, who, in many cases, are paid a wage. For a dancer well into her career, the amount of money owed in unpaid labor and fees is significant.
Another problem with strippers being misclassified as independent contractors is that independent contractors are generally not protected by health and safety laws, which means that most clubs operate without such oversight, and are thus less invested in making the work environment safe. According to OSHA, contractors are self-employed, and are therefore personally responsible for whatever injuries they sustain on the job. In strip clubs, this means that managers are not accountable for strippers’ injuries. In a job that often combines drinking, acrobatics and heels, the lack of repercussions for safety violations is dangerous and potentially deadly. Indeed, in January 2013, Lauren Block performed a lap dance near a railing in an Ohio strip club and fell to her death. The Cleveland-area OSHA told EHS Today that they were trying to determine if they had jurisdiction in the case because, according to director Howard Eberts, “Independent contractors are not normally covered by OSHA.”
However, fighting for proper classification is not without its drawbacks. For starters, lawsuits are not always entirely effective. As noted above, over the years plenty of strippers have successfully sued their clubs for back wages and worker’s comp. Although these victories have resulted in millions of dollars in class-action settlements from chain clubs like Déjà Vu and Rick’s Cabaret, not much has changed overall. As Susan Elizabeth Shepard explains in a Vox article, even with the threat of a lawsuit, “Clubs learned that if they impose strict work requirements—mandatory scheduling, dress codes, requiring dancers to hawk club merchandise from stage cattle calls—it’s less costly to pay the occasional court settlement for worker misclassification than to maintain a payroll.”
Additionally, there is the very real fear of retaliation. Generally, strippers who sue clubs for their rights tend to be at the end of their careers, because the action poses a high risk of being fired and blacklisted from nearby clubs. For those already at the end of their careers, this is a risk they might be willing to take. However, for everyone else who is still in the midst of their careers, this risk is simply too high.
Fear of losing one’s job is not the only thing that holds dancers back from organising for their labour rights. Many also fear that fighting against misclassification will actually make their working conditions worse, particularly in terms of a reduction in their freedom. This is because, while most strippers do not have enough freedom to be considered independent contractors, they do generally have more freedom than, say, Walmart employees. Managers may demand that dancers work until four in the morning, for example, but once they’re in the club, if they want to sit at the bar or chat in the dressing room all night, they’re usually free to do so. Dancers in the United States also tend to pick their own customers and aren’t criticised for having a bad night. This freedom of movement is a luxury in comparison to retail or supermarket employees, whose every move is watched, calculated and scrutinised.
California strippers are learning this lesson the hard way in the wake of a new California Supreme Court Ruling, Dynamex Operations West, Inc. v. Superior Court of Los Angeles, which introduced stringent qualifications about who can be considered an independent contractor. Because this decision dictated that strippers must be treated as employees, chain clubs around the state have since been forced to stop misclassifying them. One dancer to whom I spoke works for an upscale gentlemen’s club in San Francisco that’s part of the Déjà Vu Corporation. When she discovered that she would be classified as an employee, she was afraid it would cut into her income. She’s happy to now make $15 an hour, but her fears have proved warranted. Before the switch, the club was taking 25% of the money she earned from dances; now, it takes up to 60%, plus the first $150 she earns in a night. She decided to stay at the Déjà Vu club because she says it’s still the best financial move for her; however, there is a looming fear that if she doesn’t make enough, she’ll get fired.
On top of these concerns are the pressures of the work. Stripping is a relatively accessible job in the United States when compared to other professions, which is part of the reason why many people choose to do it. True, the model of misclassification treats dancers as a commodity; the club is guaranteed a fee from every dancer, and they don’t have to pay out social security or unemployment benefits. This means that many clubs flood their floors with dancers, which can make it difficult to make money as there’s more competition for customers. But it also means that the door is open to a lot of people who cannot get hired elsewhere. Poor, mature, fat, disabled and undocumented dancers, for example, may not make the cut if clubs put everyone on payroll.
Ultimately, these realities lead strippers back to the question I faced in the Philadelphia strip club office that day: do we want to be (mis)classified as independent contractors or should we fight in the courts for our rights as employees? The answer is, at least for me right now: no. When I got hired at my current club in South Florida, two managers required that I sign a lengthy packet. This time, I wasn’t even presented with a so-called choice. The packet just stated flatly that I am self-employed, despite the fact that I’m required to work until four in the morning, be on stage at a certain time and strip down completely on said stage. Even though I knew this meant I had the right to be considered an employee, I signed the contract without much hesitation because I believed it was the right thing to do.
There is too much at stake and not enough reward to take on this legal battle as it is currently laid out. Instead, I have chosen to focus my energy on building a strong community of dancers who are attentive to each other’s safety, support each other on bad nights and work together to negotiate better conditions for everyone from the ground up.
This post was first published in Queer Majority. and is republished here as part of our weekly partnership with QM. You can read the original here.