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Strippers Fight Back on Harassment, Wage and Hour, Issues

| Nov 13, 2015 | Uncategorized


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Strippers Fight Back on Harassment, Wage and Hour, Issues

Strip Clubs Get Away With Exploiting Dancers Every Day, But These Strippers Are Fighting Back

BY BRYCE COVERT NOV 4, 2015 ThinkProgress.Org




Brandi Campbell

After a decade of working as a stripper, Brandi Campbell had finally had enough of being groped by customers and management alike.

In that time, she’d worked at 57 different clubs across six different states and says she experienced sexual harassment in most of them. But earlier this year, while working for Larry Flint’s Hustler Club in Las Vegas, she got fed up. Many people — including clients — may think that touching exotic dancers comes with the territory, but the job doesn’t entail or permit unwanted sexual contact, just as in any other occupation.

Yet she alleges that customers at Hustler frequently grabbed her and slapped her butt. Her supervisors didn’t just ignore it; she says they also engaged in the harassment, touching her, hugging her, and kissing her. The manager even hounded her to go on dates with him even though she never picked up his calls. She decided to take action and sue the club.

That’s when she found out that she can’t sue for sexual harassment. She’s also not entitled to be paid at least minimum wage, to get overtime when she works more than 40 hours a week, or to draw unemployment insurance if she’s fired. If she hurts herself on the job, she won’t see a dime of workers’ compensation. The club gets away with all of it by labeling its dancers independent contractors rather than regular employees.

“All the clubs had varying levels of exploitation, but one thing they all have in common is they don’t classify us as employees,” she said.

She’s pushed forward with her lawsuit anyway, seeking now not just to prove her claims of sexual harassment but also of being improperly treated like a contractor. Hustler Club didn’t respond to a request for comment.

Campbell’s lawsuit isn’t an isolated incident of one exotic dancer deciding to take action against her boss. Dancers across the country are fighting back against abusive working conditions. The last several years have seen a proliferation of class action lawsuits similar to hers, all claiming that clubs are illegally misclassifying their dancers as independent contractors and therefore ducking a range of labor laws. Other dancers have banded together with lawmakers to pass legislation to improve conditions. There has even been some talk of unionizing like the successful efforts at one club in the 1990s.

But it’s far from clear whether any of this will transform the industry or merely make a few small dents while the overall behavior continues.

The Rules

Campbell can rattle off a long list of the experiences she’s had in various clubs that she believes proves she’s a traditional employee instead of an independent contractor simply using the club’s space as a vehicle for her performances.

One of the things that frustrates her most are the pricing rules. Most clubs Campbell has worked at put caps on lap dances at just $20. Another club only allowed her to collect $10 for each song. “That really bothers me because I know I’m capable of charging more and know people would pay it,” she explained. “It’s hard to be financially stable sometimes when we’re not allowed to charge what we want to charge for services.”

Some dancers flock to the industry in part because of perceived scheduling flexibility, but they often end up just as binding as many other jobs. Most clubs require a dancer to come in a minimum number of days a week and assign them to either a day or night shift. Some also tell dancers what time to show up — even charging them a fine if they’re late — and many charge a penalty for leaving before a certain time or pay a supposed “bonus” for sticking around. “You’re getting punished for leaving early and setting your own hours,” Campbell noted.

Time within the club is also structured. Dancers usually have to get on stage whenever called by the DJ and stay for a set number of songs. “It cuts into my time when I have to go onto the stage…and not be spending that time making money…with clients,” she explained. Others will play a certain song that indicates that the dancers have to drop what they’re doing and try to sell club-branded merchandise for a set period of time.

Then there’s the question of what to wear. Some clubs have strict rules about costumes. Campbell worked in one that went so far as to mandate that the dancers wear a one-piece, ankle-length, opaque gown without any animal print plus one necklace and one bracelet every night. They had to check in with the manager every night to prove that they were abiding by all of the dress code rules.

“Every time I talk to a lawyer, they go through 20 questions of things that make someone an employee,” she said. “Most of the questions I answer are things that make me an employee.”

Antonia Crane, who works as a dancer as well as a professor and writer, has had similar experiences. For nearly a quarter century she’s been classified as an independent contractor. “We are like a transient, ever-rotating temporary workforce, and they don’t want to take any responsibility for us,” she noted.

Who’s The Boss

Labor law stipulates that independent contractors are meant to operate relatively free from any given employer. The Department of Labor released a report recently clarifying its guidelines and emphasizing that an employee is “a worker who is economically dependent on an employer.” The independent contractor designation, on the other hand, is really meant to apply to those who have their own businesses.

“The overall question we should be asking, especially in regards to dancers, is are they really running their own independent stripping operation and just every now and then using the premises of these various clubs?” explained Sarah Leberstein, senior staff attorney with the National Employment Law Project (NELP).

In most cases, that’s not the way the relationship works. “They’re really beholden to the strip club for so much about the way that their work takes place.” Clubs decide which customers come in, how much they can be charged, when dancers come to the club, and when they get up on stage — even details down to what songs they dance to or what accessories they have to wear.

But by designating their workers independent contractors, employers, including clubs, make out with a pretty good deal. They don’t have to carry a workers’ compensation policy to cover their employees, nor do they have to pay into unemployment insurance funds. Dancers don’t have to be paid an hourly minimum wage or overtime for putting in more than 40 hours a week — most clubs don’t pay them at all, instead charging the dancers to come in and leaving them to rely on tips. And clubs don’t have to sweat sexual harassment or discrimination claims, because to be covered dancers would have to be classified as employees.

There are some rare examples of actual independent contractors in strip clubs. Hima B., who worked as a dancer for about seven years in the 1990s and is currently making a documentary about conditions in strip clubs, recalled working at clubs that would bring in “featured” dancers for a week or so at a time, who were not bound to the club rules or to pay the club’s stage fees. “But the strippers who work every day, coming in week after week, month after month, year after year — those are employees, not independent contractors,” she argued.

There are other practices that are questionable whether or not dancers are independent contractors. Most clubs charge dancers a fee just to get in the doors, which can range anywhere from $10 in small towns to as much as hundreds of dollars at the big city clubs. Hima recalled being made to pay as much a $500 a night. “Clubs basically charge women to work,” she said. If a dancer can’t make enough to cover the night’s fee, she may end up going into debt, owing even more the following shift.

Clubs also often dip into the dancers’ tips, a violation of laws governing tipped workers. Other employees try to horn in on their tips too, from DJs to bouncers to designated “house moms” who sit in the dressing rooms. Campbell often protested paying them out but ran into the fossilized power structures within clubs. “One DJ played me Nickelback every time I went on stage because he knew I hated Nickelback,” an effort to coerce her into paying him out, she explained. “It’s like getting bullied for your lunch money.”

Certainly these experiences vary from club to club, and some may be following labor laws to a tee. In other cases, dancers say they enjoy and prefer the flexibility of being classified as an independent contractor.

As part of her research as a professor of anthropology and sociology at the University of Maryland, Judith Hanna has interviewed dancers and found their opinions to be mixed. “The dancers have opposing views,” she said. “Sometimes the dancers were unaware of the implications of their positions. Some of the cases had to do with being an employee or independent contractor… [But] most of them feel empowered.”

Angelina Spencer, a spokeswoman for the strip club industry group ACE National and a former dancer herself, says many dancers want to be contractors. In an email, she described how she was also classified that way when she was in the industry and that she preferred it, although had some owners force her to clean the club after hours, pressure her to share her tips with the manager, or have to sell a certain number of drinks per shift or be forced to pay for the missed drinks out of her tips. But, she said, “I always had the option to quit and often would under this type of treatment, working in those establishments where I felt valued.”

“If given the choice, most dancers prefer the independent contractor model,” she said. She warned that she thinks dancers don’t realize that by becoming full employees, “the club can now consider your private dance ‘work product’ and it no longer belongs to you,” which could mean clubs exerting more control or firing dancers if they don’t find the work satisfactory. “A lot of ladies do not like the employee model — and many ladies do,” she said.

She does think, though, that the industry will eventually phase out the use of independent contractors. “As time progresses, I see the independent contractor model becoming an ever growing uphill battle on many levels,” she said. “It’s not a matter of ‘if’ as much as it is a matter of ‘when.'”

Fighting Back

In the meantime, conditions at strip clubs have sparked a veritable wave of litigation. The sea change began with a lawsuit against the Mitchell Brothers O’Farrell Theatre in San Francisco in 1994, one of the first class action suits. The owners had changed the dancers’ status from employees paid the minimum wage to independent contractors who had to pay stage fees. The club eventually settled with the class of more than 500 dancers by agreeing to pay them $2.85 million and switch them back to employees.

“News about that lawsuit spread like wildfire to all the other clubs,” said Hima, who worked in San Francisco’s exotic dancing industry at the time. “Other women in other clubs found out about it and then I think they started realizing, maybe I was unfairly fired or I dealt with exploitative situations.”

One of the highest-profile cases was more recent, brought against Las Vegas’s Sapphire Gentleman’s Club in 2009. The Nevada Supreme Court unanimously ruled that the club’s dancers are employees and entitled to minimum wage. “Given that Sapphire bills itself as the ‘World’s Largest Strip Club,’ and not, say, a sports bar or nightclub, we are confident that the women strip-dancing there are useful and indeed necessary to its operation,” the decision read. And it applied to clubs throughout the entire state.

Ryan Anderson, a lawyer with Bighorn Law who was involved in the Sapphire suit and is now representing dancers in lawsuits against Hustler Club, Club Paradise, Crazy Horse III, Olympic Gardens, Treasures, and Spearmint, thinks the outcome of that case has the potential for a ripple effect in Sin City. “Sapphire’s the biggest club in Las Vegas by far,” he said. “What they do sets the standard for other clubs.”

The quest for rights, he says, is the impetus for the suits. “Every single one [of the dancers] that I’ve talked to is motivated by the fact that they want to see things change,” he said. “They see how they get treated, see how their fellow dancers get treated, that’s their motivation.”

Spencer, on the other hand, argued that many of the cases are being brought for the wrong reasons. “Most of these dancers filing these cases are the same ladies over and over again and many don’t even work in the industry anymore and they don’t bother to ask the current dancers in a club what they might want,” she said, adding, “If these cases had limits and the lawyers could not reap attorney fees from the owners, they’d never file such cases to begin with.”

Even so, the hunger for change was strong enough for some dancers in the 90s to form the first, and thus far only, dancers’ union. The Lusty Lady, a club made up of peep show booths in San Francisco, unionized in 1997 with the Service Employees International Union. The campaign started after the dancers complained to management about customers secretly videotaping them, invading their privacy and potentially exposing them on the internet. Nothing changed, so the dancers organized.

The union push ended up wildly successful and the scope of reforms went far beyond the original complaints. “Everything was changed,” said Crane, who was a dancer with the club at the time and was part of the campaign. “We got a lot of the things we fought for.” After a multi-year labor fight, they secured a pay raise, greater job security, paid vacation and sick leave, and the abolition of the one-way glass that had allowed the clandestine videotaping. Discrimination against women of color and other forms of favoritism were addressed and job shifts and descriptions were made clearer.

But that’s not easy to achieve. For one thing, the Lusty Lady dancers were legally defined employees, a requirement before any worker can form a union. Collective action is also difficult in an industry where each dancer is isolated from her colleagues. “Many dancers are kind of competing with each other,” said Stephanie Wahab, associate professor at Portland State University. “I don’t know that managers of clubs do a whole lot to foster solidarity and a collective spirit.”

What Happened In Oregon

A newfound spirit of solidarity helped fuel a different first of its kind in the industry just last year. In a model that could easily be adopted elsewhere, dancers got directly involved in the policymaking process.

Every year, the Oregon chapter of the National Association of Social Workers takes on an issue facing a marginalized or vulnerable group and pushes for legislative change. In the 2014-2015 legislative session, it decided to address the working conditions of exotic dancers in the state, home to Portland, a city that claims to have the highest number of strip clubs per capita in the country.

“For us this is a social justice issue, something that’s really crying out for legislation,” explained Delmar de la Torre Stone, executive director of the National Association of Social Workers. “There are too many bad actors in the industry and we wanted more accountability, we wanted dancers to be treated with dignity and fairly.”

At first, the group considered forcing clubs to classify workers as employees or to set up licensing requirements for dancers that would get the government more involved and better clarify their rights. But that spooked the dancers themselves.

“We kind of heard about it in a roundabout way, which really freaked everyone out,” said Viva Las Vegas, who has been a dancer for more than 18 years and currently works in Portland. “Most of us are of the opinion that government intervention does more harm than good.”

Without dancers’ involvement in the effort, they were suspicious that the social workers were more interested in “saving” them or pushing reforms they weren’t interested in than in working together to find improvements that the dancers themselves would appreciate.

Eventually a number of meetings were convened between the social workers and the dancers. The dancers made it clear that licensing would turn many of them off because it could disrupt the privacy some need to be able to work in strip clubs. “Privacy is key in this industry,” Viva said. Stripping is legal, but thanks to the stigma that surrounds it, dancers risk getting evicted if their landlords find out what they do for a living. It can make getting a different job more difficult, particularly in sensitive occupations like teaching. Some mothers might even risk social services taking their children away. “Nobody wants their real name associated with what they do, the majority,” she added.

But the dancers and social workers came to a consensus over one issue: safety. While clubs are under the purview of the Occupational Safety and Health Administration (OSHA), violations – and dangers – run rampant.

“Things happen all the time,” said Rochelle MacDonald, another Oregon dancer who collaborated with the social workers and has been in the industry for more than 15 years. Stages might not be properly cleaned, leading to infections for dancers. “I’ve known many dancers over the years who got MRSA or staph infections from improper cleaning,” she said. Broken drink glasses aren’t swept up and dancers get cut. Broken equipment — including the poles — gets duct taped back together and debris is left on stage, which can cause serious falls. MacDonald described a fellow dancer who had to get 12 stitches because she slipped and landed on a broken ashtray. Another was out of work for months to care for a torn ACL after falling in a hole in the stage.

She herself once had to skip work for a few weeks to recover from an ankle injury thanks to unsafe conditions. “It’s a pretty athletic career,” she noted. “You’re exposing your body to a lot during the course of a workday.” And because dancers are treated as independent contractors, they can’t avail themselves of workers’ comp or even paid sick days when they have to miss work.

Spencer, the industry spokeswoman, agreed that there are some bad actors. “I do believe there is a need to change such conditions in SOME clubs in Oregon,” she said. But she argued that it’s rare for unsafe conditions to exist in clubs in the rest of the country and pointed out that they are subject to health department codes and enforcement.

Eventually the group of social workers and dancers drafted a bill that mandates that all live entertainment clubs — including strip clubs as well as comedy and music clubs — put up posters in dressing rooms and common areas detailing the differences between an independent contractor and employee and the rights of each, as well as the creation of a hotline that dancers can call anonymously to report violations of their safety or rights. Enough calls to the hotline can trigger an investigation from regulators at OSHA or the state’s Bureau of Labor and Industries.

The bill got a surprisingly warm reception from state lawmakers. “To get better working conditions no matter what the job…comes second-nature to me,” said state Rep. Margaret Doherty (D) in explaining her support. “It’s not really a party line thing. It’s just a safety issue. Some people build houses, some people teach schools, some people dance without their clothes on.”

It wasn’t just Doherty who was interested in the bill. It passed the legislature in July — with unanimous support in the House of Representatives — and was signed by the governor. The state is currently in the process of designing the poster and hiring the person to run the hotline; it will all go into effect at the beginning of next year.

The experience of working with lobbyists, and then with legislators, was new and different for many of the dancers. “It’s been a lot more positive than I had expected,” MacDonald said. “My initial expectation was that I was going to be hitting up against a wall, people who didn’t want to talk to us. Sex work is one of those things that lawmakers don’t want to touch unless they’re trying to shut it down.”

It also brought the dancers together in a unique way. Given their classification and the competitive nature of the job, they don’t always work together or even talk to each other about their working conditions. But the effort to craft the bill put many of them into the same room. “It was really interesting to hear the problems people were having,” Viva said. “It was cool to network with them and hear what’s going on in the clubs.”

She’s pleased with the results. “If it helps one girl get out of a bad situation, that’s great,” she said. “Just to have awareness that services exist and a way to access them — that’s worth fighting for.”

As the first of its kind, the effort could also act as a model for other states interested in improving working conditions for dancers without upending the fundamentals of the industry. “It usually takes one state to do something, and then it starts to spread,” noted Stone.

Some dancers, however, do want to see sweeping change throughout the entire industry. Yet getting there could be difficult.

Power Plays

The issues facing exotic dancers are the result, in many ways, of an industry that ducks scrutiny thanks to a number of systemic problems. “There are some general feelings and beliefs out there that sex work is not a form of legitimate labor,” Wahab said, “that sex workers generally are not deserving of protection of human rights and even just the status as laborers and workers.”

Crane agrees. “There’s no forgiveness for sex workers. People will get behind Uber but won’t affiliate themselves with strippers as a workforce,” she said. The stigma runs deep and flows from many sources: American prudishness around sex, moralistic beliefs that dancers need to be saved, and old-fashioned discrimination against women. “This is absolutely about sexism any way you cut it,” Crane said. “This is not valuing women for the work that we do.”

Stigma is a huge hurdle that any dancers interested in making change will have to leap over first. “It has been a tremendous barrier for a long time,” Wahab said. “Not just when it comes to changing policy and achieving rights; it takes a lot for somebody to even just out themselves as working in the industry in order to organize.”

It may be that existing law could achieve many of the improvements dancers are seeking, if only there were enough firepower behind them. “There are probably a very few instances where there’s been enough litigation…to change behavior,” NELP’s Leberstein said. Enforcement, on the other hand, can have a real impact.

That takes resources, however — resources that the country isn’t expending to cover any industry. OSHA, which should be checking workplaces for safety concerns, has just 1,955 inspectors to cover the country’s 8 million workplaces, meaning that employers only get a visit once every 79 years on average. There are even fewer Department of Labor investigators — about 1,000 — to make sure employers are following wage and hour rules, including misclassification.

“If we really had a system of labor enforcement in this country that was sufficient to both take in all the claims that are coming in from workers and was strong enough to send a message to employers that they could get caught, we might see a change,” Leberstein said. “But our enforcement resources…are so inadequate.”

Even the flood of lawsuits may be limited in its ability to actually change clubs’ behavior. The Nevada court ruling against Sapphire came out in 2009, yet Anderson, the lawyer on the case, said not much was different when he followed up with those clients earlier this year. “So far the behavior hasn’t changed,” he said. “We have a supreme court ruling saying you have to treat dancers as employees, and clubs have done absolutely nothing about it.”


Antonia Crane

That’s exactly what Crane has seen on the job as well. “It’s not making a lasting impression,” she said. Clubs get slapped with fines but the underlying problems won’t actually budge; instead, rules may simply go unspoken. Clubs even wiggle out of a lot of the penalties by settling before any judgment is handed down that would force them to change their policies or create a legal precedent that could be replicated elsewhere. “Maybe if every single girl brought a class action lawsuit they would [change]. But it’s not enough as it is right now,” she added.

Even once a dancer proves she’s an employee, in many cases she still has more work to do to prove her underlying claim. In Campbell’s case, if she prevails in her assertion that Hustler misclassified her, she still faces the daunting challenge of convincing the judge that she was sexually harassed by clients and supervisors. That could be a tough battle if the harassment is dismissed as simply part of the territory.

Clubs also exert a lot of influence over the dancers to persuade them not to take action or to join lawsuits. Hima, who brought her own wage and hour lawsuit alleging she was misclassified as an independent contractor, said that her club convinced her fellow dancers to testify against her at a hearing. They tell dancers that those who bring lawsuits are simply disgruntled employees seeking money – money that will come out of the remaining dancers’ pay by increasing stage fees. “They basically pit workers against workers,” she said. “The club very deliberately told the dancers, hey here’s this dancer who worked right alongside you guys, and now she’s taking your money.” Clubs even threaten dancers with termination if they join class action lawsuits.

And even if there were to be widespread change spurred by legal action to ensure that all workers are classified as employees, some of the dancers themselves could revolt. Clubs tell the dancers that by becoming full employees, they’ll only be paid minimum wage and the club will pocket all of their tips. Others worry about losing flexibility and control by giving up their current status.

Crane doesn’t think the wage and hour suits are enough. “I’m not convinced that it’s going to fix everything to pay us minimum wage and treat us like employees,” she said. “That’s just the tip of the iceberg.” On her agenda is more security in the clubs and protection from customers, less theft of their tips and pay, and some sort of trade association that could bring more collective, systemic action.

In the meantime, power is almost always tilted toward club owners. Campbell is finding out just what that means. When she and her lawyer went to the first settlement conference with the Nevada Equal Rights Commission over her case against Hustler, they were surprised to be informed that a newly passed law might halt them in their tracks. In June, Nevada Gov. Brian Sandoval (R) signed SB 224, a bill that appears aimed at undoing the Sapphire court decision by making it easier to legally classify dancers as independent contractors. “I didn’t know anything about this bill, nor did my lawyer,” she said.

It’s new enough that it’s not clear exactly what it means for her case or any others brought by dancers who say they’ve been misclassified. No trials have put it to the test yet. Campbell might be the first. “As of now I am willing to be the test case,” she said. It’s yet to be seen who prevails, her or the biggest strip club in Las Vegas.



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