Dancer employment law creates niche practice for civil rights firm
When Mari Newman first began taking on cases on behalf of exotic dancers, she thought the primary fight in the cases would be for fair labor practices in pay and conditions of their employment. She hadn’t imagined she would end up fighting for their most basic ability to challenge the conditions of their employment in court. As niche and salacious as litigating on behalf of exotic dancers might seem, she came to realize that at their most fundamental, the cases are about employees fighting for pay for the work they do.
“The salacious part of it is that it’s dancers,” Newman said. “The basic part is that it’s about exploitive employers that use the same tools as other oppressive work environments.”
Newman sees the cases she has taken on as aligning with her whole practice’s goal of representing the underdog against corporate or government abuses of power. She has two current cases pending in U.S. District Court against adult entertainment establishments in which she has filed for class action certification — one against Shotgun Willie’s and the other against national companies that own clubs across the country including PT’s Showclub, La Boheme, Diamond Cabaret and Penthouse in Denver. Failure by the establishments to pay wages under the Fair Labor Standards Act and the Colorado Wage Claim Act comprises an essential claim in the cases.
Newman said the structure under which the dancers work as independent contractors rather than employees, which has included not paying dancers wages, charging them house fees to dance and requiring them to share tips, has been challenged in courts across the U.S. The cases date back to at least 1987, with Jeffcoat v. State, Department of Labor in Alaska. Dozens of state and federal district courts, as well as the 4th and 5th Circuits, have found that dancers at adult entertainment clubs are employees according to wage laws.
Newman herself won a 2015 summary judgment in Mason v. Fantasy, LLC., against Fantasy Gentlemen's Club in Fort Collins for violations of the FLSA and the Colorado Minimum Wage Act.
The suits Newman has been working on have brought attention to a key issue increasingly scrutinized across a host of industries -- that of binding arbitration clauses. Their use recently received attention in October when the U.S. Senate voted against a rule banning financial companies from using forced arbitration clauses to block class actions.
Newman said exotic dancers she has represented are required to sign contracts that include mandatory arbitration provisions and class action waivers and said this keeps the dancers from challenging their employment classification in court.
"What it means is that primarily low-income women are required to pay the same amount as these massive corporations (for arbitration) in order to try to get the law enforced on an individualized basis," she said. "And they can't do it collectively." Newman emphasized the establishments' efforts to keep challenges to employment classification out of court show they know their treatment of dancers is illegal.
Critics of arbitration clauses have pointed to the right to sue "enshrined" in the Constitution. From a bird's-eye perspective, Newman says she believes arbitration agreements do not belong in employment disputes because the employer always has significantly more power than the worker.
"It's a pretty fundamental issue in terms of the three-pillar system of government we have that's being encroached upon when parties lose their right to have legal claims heard by the judiciary," she said. She explained arbitration might have more of a place when there is not a significant power disparity between sides.
"Where you're dealing with a conflict between two parties of equal strength, where there's similar bargaining power, then it might be an appropriate and efficient way to get conflicts resolved," Newman said. "That could not be further from the truth here, where the conflict is between large corporations with teams of lawyers and the low-income women they are exploiting."
She said she believes the agreements are not enforceable, in part because they contain punitive measures to stop the dancers from challenging their employment terms. Newman explained the dancers also often receive them after drinking or while still undressed.
For a contract to be enforceable, the parties must have the appropriate legal capacity to enter into it.
"It is fundamentally an illegal contract to begin with because they're treating them as employees under the law, but then calling them 'lessees' or 'licensees,' in order to avoid paying them the wages they are entitled to as employees," she said. "And then they present the contract in a way that's coercive and in a way that's designed so that the dancers in that moment don't have the requisite legal capacity to contract."
In addition to perpetuating the opportunity for exploitation of the dancers, Newman said she believes keeping the cases out of court perpetuates the stigma surrounding sex work in general. But she reiterated the cases she has taken on are truly about basic employment principals.
"My perspective is these are women doing legal work and they deserve to get paid for it," she said. "The goal of the cases is to allow their legitimate legal claims to be heard in a public court in order to get them paid and in order to change the conduct of clubs locally and nationally."