713 F.Supp.3d 1246
M.D. Fla.2024Background
- Jamie Burgos, an exotic dancer, sued two strip clubs (Emperor’s Tampa, Inc. and Entertainment 2851 LLC) and their owner, Michael Tomkovich, alleging violations of the Fair Labor Standards Act (FLSA) for failure to pay minimum wage, among other claims.
- Burgos worked at the clubs for nearly 20 years, where the establishments controlled key aspects of her work including schedules, base dance prices, and customer access.
- The procedural posture is a motion for partial summary judgment filed by Burgos, seeking rulings on five specific issues related to her FLSA claims.
- Defendants argued that the FLSA doesn't apply due to insufficient gross revenue (< $500,000), and disputed the employee status and wage calculations.
- The court found material factual disputes on several points, such as FLSA applicability and the nature of Burgos’s earnings, precluding summary judgment except on two issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Employee Status under FLSA | Burgos is an employee, not an independent contractor, under FLSA's economic realities test | Burgos is an independent contractor with control over work | Burgos is an employee as a matter of law |
| Tomkovich as Employer | Tomkovich had operational control and qualifies as an employer under the FLSA | No substantive rebuttal | Tomkovich is an employer as a matter of law |
| FLSA Applicability | Clubs meet FLSA coverage based on sales volume | FLSA does not apply; gross sales under $500k | Genuine factual dispute; not resolved on summary judgment |
| Offsets for Customer Payments | Defendants cannot offset wages with customer payments, as they are tips | Payments are service charges, can offset minimum wage | Factual ambiguity precludes summary judgment |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (burdens on summary judgment)
- Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (corporate officer liability as employer under the FLSA)
- Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (economic realities test for employment under FLSA)
- Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150 (liquidated damages and willfulness under FLSA)