North Carolina Law Review

University of North Carolina School of Law

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The Unexpected Consequences of Classifying Exotic Dancers as Employees or Independent Contractors Under the FLSA

May 3, 2017

95 N.C. L. Rev. Addendum 83 (2017)

 

While reminiscing about family holiday gatherings, most people probably think of great food and taking countless pictures. I, however, fondly remember trying to avoid everyone and going into a bedroom to play video games so that I did not have to answer incessant questions like “How is school going?” or “How many points did you score in the last game, honey?” While ducking my family in a side room, my nephew would come in begging to play, but naturally I would not want to actually play video games with a toddler. Instead, I would hand him a controller, unplugged from the console. This way, I could play my game, and he thought he had received what he wanted.

 

In McFeeley v. Jackson Street Entertainment, LLC, the Fourth Circuit might have handed exotic dancers an unplugged controller. The plaintiffs believed they were gaining additional employment rights, but the ruling could have done as much good for the dancers as the unplugged controller did for my nephew. The McFeeley court was tasked with determining whether the U.S. District Court for the District of Maryland properly held that the plaintiff exotic dancers were employees under the Fair Labor Standards Act (the “FLSA”) and not independent contractors. After considering the “totality of the circumstances” of the relationship between exotic dancers and their clubs, the Fourth Circuit upheld the district court’s holding that the exotic dancers were employees under the FLSA, and as such, were entitled to back pay for the unpaid minimum wage. The court reached this conclusion, just as other courts have, by looking to the economic realities factors previously articulated by the court in Schultz v. Capital International Security, Inc. Nonetheless, the McFeeley opinion is reflective of the shortcomings of the FLSA and the case law that derives from it, as it applies to protecting exotic dancers. This Recent Development examines the Fourth Circuit’s decision and questions whether it actually protects dancers in a manner consistent with the underlying humanitarian purposes of the FLSA. This Recent Development argues that McFeeley and other decisions holding that exotic dancers are employees are superficial in that they do not address significant underlying problems caused by unique characteristics of the exotic dancing industry. Being classified as an employee under the FLSA could actually harm the dancers’ interests in privacy, flexibility, and profits. To address these problems and the potential for negative unintended consequences, this Recent Development recommends the creation of a simpler framework for determining whether a worker is an employee and the creation of a third employee category that addresses the unique industry of exotic dancing and is capable of providing the type of employee protections consistent with the overarching goals of the FLSA.

 

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