I just got back from running in a 200-mile relay, Muskegon to Traverse City, with a group of college friends. I ran three legs of 4, 4, and 5 miles. I had the easiest set of three legs among the 12 runners, but I’m happy just to have finished. It was great to see everyone, and I was able to disconnect from work life for a few days.

So, what I’m saying here is, I had a better weekend than the guys I’m about to write about. And for them, there’s no running away from their problems.

In yet another exotic dancer case to hit the news, the performers at King’s Inn Premier Gentlemen’s Club in Massachusetts are about to score a $292,000 settlement in a claim that they were misclassified as independent contractors. A hearing to approve the settlement is scheduled for this week.

There seem to be a lot of exotic dancer cases in the annals of independent contractor misclassification, and the clubs seem to lose their fair share of these cases. This case, like most of the dancer cases, is a wage and hour case. The dancers claimed they were denied a minimum wage and overtime pay, in violation of the Fair Labor Standards Act (FLSA). The club claimed the dancers were independent contractors and therefore were not covered under the FLSA.

But why do you care about a strip club exotic dancers case? Two reasons:

• First, the Economic Realities Test is alive and well, and it applies to all industries.
• Second, any settlement of an FLSA lawsuit must be approved, and it becomes public record.

You can read more about the first point here, in a collection of posts about this test and how it is used to determine whether someone is an employee.

The second point deserves a bit more attention, though. Most types of litigation can be settled in a private settlement agreement. An FLSA case cannot be. The law requires the settlement of an FLSA case to be approved by a judge, and there is a public hearing at which the settlement terms are considered.

Once you get sued for an FLSA violation, it’s very hard to get out of it with anything resembling confidentiality. This is the kind of claim you want to avoid in the first place.

How do you avoid an FLSA claim when you have independent contractors?

• Be proactive. Evaluate your relationships using the Economic Realities Test and see if they hold up.
• Review your contracts and see if they can be adjusted to better memorialize the facts that support independent contractor status.
• Consider obtaining representations from the contractors up front to determine whether they really do operate independently.

Don’t wait until its too late to take action. You can’t just run away from an FLSA case.

© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.