Burgos v. Entertainment 2851, LLCBurgos v. Entertainment 2851, LLC
Case Information
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
JAMIE BURGOS,
Plaintiff, v. Case No: 8:22-cv-1171-KKM-TGW EMPEROR’S TAMPA, INC.,
ENTERTAINMENT 2851 LLC, and
MICHAEL TOMKOVICH,
Defendants.
___________________________________
ORDER
Jamie Burgos works as an exotic dancer. She sues two strip clubs and the clubs’ owner for, among other things, failing to pay minimum wage pursuant to the Fair Labor Standards Act (FLSA). See 29 U.S.C. § 206(a). She asks me to resolve five legal issues on summary judgment. MSJ (Doc. 119). In her view, she was an ‘employee’ under the FLSA’s definition, the clubs’ owner was an ‘employer’ under the FLSA’s definition, all Defendants acted in bad faith and willfully violated the FLSA, and Defendants may not use the money she earned from customers to offset her wages. Id. at 2, 10–24. I agree with Burgos on the first two issues but find summary judgment inappropriate as to the rest.
I. UNDISPUTED FACTS
Michael Tomkovich owns many strip clubs in Florida. Turner Decl. (Doc. 119-1) at 32. Three are relevant here. The first is Dеfendant Entertainment 2851, LLC. That club is also known as ‘Emperor’s,’ ‘Emperor’s Pasco,’ or ‘Emperor’s Gentlemen’s Club.’ Id. at 27, 99. It is located in Holiday, Florida. Id. The second is Defendant Emperor’s Tampa, Inc., also known as ‘’Emperor’s,’ ‘Emperor’s Nude’ or ‘Emperor’s fully nude.’ Id. at 27–28; 36–37; 39–40; Sales Breakdowns (Doc. 120-2). Emperor’s Nude is a club where full nudity is allowed but alcohol is not served. Turner Decl. at 47. There is a third club at the same location as Emperor’s Nude called EMTB, which serves alcohol but does not host fully nude dancers. Id. at 33, 46–47. It is also known as ‘Emperor’s.’ Id. The nature of the corporate relationship between Emperor’s Nude and EMTB is unclear from the evidence presented. See id. at 46–51. EMTB is not a Defendant to this action. Am. Compl. (Doc. 95) ¶ 1. For clarity’s sake, I refer to the first club as Entertainment 2851, the second as Emperor’s Nude, and the third as EMTB.
Setting aside the differences as to whether the clubs offer full nudity or alcohol, the clubs otherwise all run in the same manner. They share the same colloquial name, ‘Emperor’s,’ and the same owner, Tomkovich, who directs the managers of all three clubs as to “how they are supposed to handle business.” Turner Decl. at 83. All three have similar policies on drug use, harassment, and certain kinds of record-keeping. Id. at 68–72. And although an employment contract for Emperor’s Nude is not in the record, it appears that all the clubs require their dancers tо sign essentially the same contract. Id. at 5–20, 99–113 (EMTB and Entertainment 2851 contracts). The similarities are apparently so strong that the parties themselves often do not specify which ‘Emperor’s’ they mean. See, e.g., MSJ at 10; Resp. (Doc. 120) at 2. Thus, I assume that the policies for all three establishments are the same unless there is a reason to suspect otherwise.
Defendants have “no major requirements for dancers to work except that they are of legal age and are willing to dance nude or semi-nude.” Burgos Decl. (Doc. 119-2) at 2. Defendants hired dancers “based on their attractiveness, not their skill,” and “if a dancer is attractive, she would usually be hired promptly.” Id.
Defendants set opening and closing hours, decide the length of dancer shifts, and do not allow dancers to work outside of club hours. Id. at 3, 4; see also Turner Decl. at 8 (providing in Burgos’s contract that “a set schedule will be made available to [Burgos] which will be honored to prevent crowding or complications caused by an overabundance of [dancers]”). Defendants set the “base prices” that dancers charge for various dances. Burgos Decl. at 3. Defendants “sometimes” require dancers to sign in when they arrive. [1] Id at 4; Turner Decl. at 80. And Defendants set rules for dancers and discipline them for violating those rules. Burgos Decl. at 4. For example, dancers are normally charged “stage fees,” but if they arrive late to work, the fees are increased “to incentivize dancers to show up on time.” Id. Moreover, Defendants, not dancers, control “which customers could enter and which customers were asked to leave” the clubs. Id. at 3.
Burgos worked as an exotic dancer for Emperor’s Nude, Entertainment 2851, EMTB, or their corporate predecessors “for almost twenty years from 2001 to 2021.” Burgos Decl. at 2; Turner Decl. at 5–20, 99–113. Although Burgos could earn money from customers through her dances, “customers would give the money for [her] VIP and floor dances to Emperor’s first.” Burgos Decl. at 3. Defendants would “keep track of the money [Burgos] earned based on the number of customers [Burgos] danced for, and then . . . take a percentage of the money [Burgos] earned and give [her] the rest.” Id.
Burgos brings four causes of action in this suit against Defendants. Am. Compl. ¶¶ 75–103. Most relevant here is that all three Defendants failed to pay her a minimum wage. Id. ¶ 75–80. She also brings claims for illegal kickbacks, unlawful taking of tips, and forced tipping. Id. ¶ 81–103.
IF YOU ARE PRESSURED TO TIP BY ANY STAFF MEMBER (DJ’S BARENDER’S SERVER’S, [sic] ETC.), PLEASE ADDRESS THIS WITH THE MANAGER ON DUTY. IF THESE CONCERNS DO NOT GET RESOLVED IN A TIMELY MANNER, CALL THE CORPORATE OFFICE AT 813-215-2161.
(Doc. 120-3). This disputed material fact prevents resolution at summary judgment.
II. LEGAL STANDARD
Summary judgment is appropriate if no genuine dispute of material fact exists, and
the moving party is entitled to judgment as a matter of law. F ED . R. C IV . P. 56(a). A fact
is material if it might affect the outcome of the suit under governing law. See Anderson v.
Liberty Lobby, Inc.,
The movant always bears the initial burden of informing thе district court of the
basis for its motion and identifying those parts of the record that demonstrate an absence
of a genuine issue of material fact. See Clark v. Coats & Clark, Inc.,
I review the record evidence as identified by the parties and draw all legitimate
inferences in the nonmoving party’s favor. See Sconiers v. Lockhart,
III. ANALYSIS
Burgos moves for partial summary judgment on five issues. MSJ at 2. First, she argues that she should be considered an employee under the FLSA, not an independent contractor. Id. at 10–17. Second, she argues that “Tomkovich was an employer and is therefore personally liable” to Burgos under the FLSA. Id. at 2, 17–19. Third, she argues that Defendants cannot prevail on their affirmative defense of good faith as a matter of law. Id. at 19–20. Fourth, she argues that Defendants’ failure to comply with the FLSA was willful as a matter of law. Id. at 23–24. Fifth, she argues that Defendants cannot receive offsets for renumeration Burgos received from customers. Id. at 20–23.
But first, a pair of preliminary matters needs attention. In rebuttal to the motion for partial summary judgment, Defendants raise an argument that the FLSA does not apply to their business at all. Resp. at 3. And in her reply, Burgos argues that I should not consider certain evidence presented by Defendants—namely, a letter from and a declaration by Adam Evans, a manager at EMTB and Emperor’s Nude—because he was not identified as a witness with information during discovery. Reply (Doc. 123) at 2–4; Evans Letter (Doc. 120-6).
I resolve these preliminary issues as follows. For the most part, Burgos’s motion does not rеquire resolving whether the FLSA applies to some or all of Defendants. But to the extent that Burgos seeks summary judgment on the threshold question of whether the FLSA governs, I deny the motion because she has not shown the absence of a genuine dispute of material fact on that issue. And I cannot consider the evidence that was not made available during discovery, so I disregard Evans’s statements.
As to the merits of the motion, I conclude that Burgos was Defendants’ employee and that Tomkovich was an employer. Yet I cannot decide whether Defendants’ alleged FLSA violations were in good faith or willful because I cannot decide at this juncture that the FLSA applies to them at all. Likewise, I cannot decide whether Burgos’s earnings offset her wages because important information about the nature of her renumeration is missing from the record.
A. The FLSA’s Applicability Is a Genuine Issue of Material Fact Defendants contend that the FLSA does not apply to their businesses because their gross annual sales do not exceed $500,000.00. Resp. at 3. Because Defendants do not move for summary judgment on this issue, I can consider the argument only insofar as it creates a genuine issue of material fact on one of Burgos’s grounds for summary judgment. Most of the issues Burgos raises are logically distinct from the question of whether the FLSA applies. For example, I can decide thаt Burgos would be considered an employee under the FLSA without deciding that the FLSA, in fact, applies. The same is true for deciding whether Tomkovich was an employer and whether Defendants can receive offsets for renumeration that Burgos received from customers. Yet there are two grounds for summary judgment that are bound up with the FLSA’s applicability: whether Defendants’ failure to comply with the FLSA was willful as a matter of law and whether an affirmative defense of good faith is available to Defendants as a matter of law. I discuss the law and facts related to the FLSA threshold in this section and explain how the question of its applicability bears upon Burgos’s related grounds for summary judgment in later sections.
Defendants attach charts with gross sales data that they claim prove that they make less than $500,000.00 in annual gross sales. Sales Breakdowns at 1–3. Yet the evidence does not paint a clear picture, and the parties’ briefing is less than helpful. (Indeed, rather than clarify her position on this affirmative defense, Burgos ignores the issue entirely. See generally Reply.) Nevertheless, I conclude that Defendants have raised a genuine issue of material fact as to whether the FLSA applies because of this factual uncertainty.
The charts give sales data only for Emperor’s Nude, not for Entertainment 2851. Sales Breakdowns at 1–3. The chart for 2021 states that Emperоr’s Nude took in $502,894.42 in total sales. Id. at 1. Although Defendants do not mention this fact in their response, Tomkovich indicated in his deposition that he believed this number overestimated December beverage sales and that the true total sales number was likely under $500,000.00. Turner Decl. at 87–88. In any case, total sales apparently fell to $305,630.03 in 2022. Sales Breakdowns at 2. The 2023 chart provides numbers only through July, at which point total sales were $157,161.71. Id. at 3.
Nothing is said about the sales data for Entertainment 2851 in the briefing. That information seems to have been shown to Tomkovich during his deposition; the dialogue between him and counsel suggests that Entertainment 2851 made less than $295,000.00 in 2021 and less than $460,000.00 in 2022. Turner Decl. at 85–87. But because the parties have not provided that information directly or briefed the issue, I cannot draw any more definite conclusions.
The FLSA covers business enterprises with “at least $500,000 of ‘annual gross
volume of sales made or business done.’ ” Polycarpe v. E&S Landscaping Serv., Inc., 616
F.3d 1217, 1220 (11th Cir. 2010) (per curiam) (quoting 29 U.S.C. § 203(s)(1)(A)(ii)).
That $500,000.00 threshold takes into account gross sales and any other business activity
in which the enterprise engages, such as loans or leases. See 29 C.F.R. § 779.258.
Whether the FLSA applies to a business during a given year depends on how much
that business makes during that year. See 29 U.S.C. § 206 (requiring an employer to pay
minimum wages “to each of his employees who in any workweek is . . . employed in an
enterprise engaged in commerce”); sеe also Collar v. Abalux, Inc., No. 16-20872-CIV,
At minimum, Burgos has failed to identify those parts of the record that
demonstrate an absence of a genuine issue of material fact on this affirmative defense.
Clark,
To be clear, this order addresses only the grounds on which Burgos moves for summary judgment. Neither party moves for summary judgment on the FLSA threshold, so both parties are free to argue the point at trial. At this juncture, my conclusion is purely negative: insofar as Burgos’s motion relies on the applicability of FLSA, she has not shown the absence of a genuine issue of material fact.
B. Evans’s Declaration Cannot Be Considered Defendants submit a letter and a declarаtion from Adam Evans, the general manager at EMTB and Emperor’s Nude. He states that “Burgos never worked for EMTB after I took over in November of 2018.” Evans Letter. But EMTB is not a Defendant. Moreover, Evans’s story is not entirely consistent. See Evans Decl. (Doc. 120-5) at 1 (“I was told recently she worked a few dayshift [sic], so I would assume that [Burgos] hid from me knowing I would not renew any dancer’s contract who looks as bad as she does.”)
In her reply, Burgos protests that Defendants never told her that Evans was likely to have discoverable information or how to contact him. Reply at 2–4. She attaches a screenshot of Defendants’ response to her interrogatory, which asked for the names and contact information of any individual likely to have discoverable information. Id. at 3. Defendants did not list Evans. Id. To date, Defendants have not disputed that Evans’s information was not provided during discovery.
Therefore, Defendants may not rely on Evans’s declaration or letter. Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires parties to give “the name and, if known, the address and telephone number of each individual likely to have discoverable information— along with the subjects of that information—that the disclosing party may use to support its claims or defenses.” And Rule 37(c)(1) names the appropriate penalty: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, . . . unless the failure was substantially justified or is harmless.” F ED . R. C IV . P. 37(c)(1). Defendants have made no argument that the failure was substantially justified or is harmless.
C. Burgos Was an Employee Next, I conclude that Burgos was an employee—not an independent contractor. The FLSA applies only to employees. 29 U.S.C. § 206. “To determine whether an individual falls into the category of covered ‘employee’ or exempted ‘independent contractor,’ courts look to the ‘economic reality’ of the relationship between the alleged employee and alleged employer and whether that relationship demonstrates dependence.” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013). “Ultimately, in considering economic dependence, the court focuses on whether an individual is in business for [herself] or is dependent upon finding employment in the business of others.” Id. at 1312 (quotations omitted). [2]
Courts use six factors to evaluate the economic realities of an alleged employment relationship. Id. These are: (1) “the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed;” (2) “the alleged employee’s opportunity for profit or loss depending upon his managerial skill;” (3) “the alleged employee’s investment in equipmеnt or materials required for his task, or his employment of workers;” (4) “whether the service rendered requires a special skill;” (5) “the degree of permanency and duration of the working relationship;” and (6) “the extent to which the service rendered is an integral part of the alleged employer’s business.” Id.
Exotic dancers are almost always considered employees under this test. See Gardner v. Country Club, Inc., No. 4:13-CV-03399-BHH, 2015 WL 7783556, at *12 (D.S.C. Dec. 3, 2015) (collecting cases); Manasco v. Best in Town, Inc., No. 2:21-CV-00381, 2023 WL 5963434, at *7 (N.D. Ala. Sept. 13, 2023) (“The Eleventh Circuit has directly not resolved this question as it pertains to exotic dancers, but district courts in the Eleventh Circuit have uniformly found exotic dancers to be employees of the clubs in which they perform.” (quotations and brackets omitted)). Defendants barely contest the issue. Burgos spent a substantial portion of her motion arguing that she should be considered an employee. MSJ at 10–17. Yet Defendants merely recite a modified version of the ‘economic realities’ factors and perfunctorily assert that those factors weigh in their favor. See Resp. at 5–6. Even so, I will consider each factor independently as it pertains to Burgos.
1. Control Burgos avers that Defendants exercised significant control over her. She points out that Defendants’ policies set limits on when and how long she could work. Burgos Decl. at 3–4. Likewise, Defendants set the “base prices” for thе dances that Burgos offered customers. Id. at 3. Defendants also required dancers to sign in when they arrived and disciplined them for arriving late by charging them increased “stage fees.” Id. at 4; Turner Decl. at 80.
Defendants respond in a single sentence: “The Plaintiff was able to come and go as she pleased, make her own hours and schedule, have alternate modes of employment, and determine how and when she offered her labor to the Defendants.” Resp. at 6. Defendants then assert without explanation that the declarations from Evans and Tomkovich “show a significant factual rebuttal of the Plaintiff’s statements.” Id.
I agree with Burgos. As explained, I cannot consider Evans’s declаration.
Tomkovich’s declaration merely represents that his businesses enforce a “no tipping policy”
and pay dancers minimum wage. Tomkovich Decl. (Doc. 120-4) at 1. And I agree with
numerous other courts from this circuit that (a) setting dancers’ work hours, (b) establishing
minimum rates for dances, and (c) using a fee system that varies based on the time of a
dancer’s arrival indicates control. See, e.g., Manasco,
2. Opportunity for Profit or Loss
Burgos had little “opportunity for profit or loss depending upon [her] managerial
skill.” Scantland,
3. Investment in Equipment or Materials
Burgos’s “investment in equipment or materials” was minor compared to the
Defendants’ investment. Scantland,
4. Special Skill
Burgos’s work did not require a special skill. Again, Defendants have “no major
requirements for dancers to work except that they are of legal age and are willing to dance
nude or semi-nude.” Burgos Decl. at 2. Burgos testifies that Defendants hired dancers
“based on their attractiveness, not their skill” and that “if a dancer is attractive, she would
usually be hired promptly.” Id. Defendants offer no admissible evidence in response. I agree
with Burgos and every other district court from my circuit: “there is no special skill required
to be an exotic dancer.” Schofield,
5. Permanence and Duration of Employment
Burgos enjoyed an unusually permanent and lengthy working relationship with
Defendants. Courts have minimized this factor when considering the employment status
of exotic dancers due to the transitory nature of their work. Shaw,
To be sure, other aspects of her employment might not suggest permanency. Burgos
was free to work for employers besides the Defendants. Turner Decl. at 10, 104; see also
Shaw, 241 F. Supp. 3d at 1327 (weighing this factor against exotic dancers where they
“were not restricted from working at other clubs or in other lines of work”); but see
Manasco
Drawing all legitimate inferences in the Defendants’ favor, this factor slightly weighs against finding an employment relationship. Nevertheless, one factor does not mean that a reasonable jury could find Burgos to be a contractor. See Manasco, 2023 WL 5963434, at *13 (concluding as a mаtter of law “that the economic reality is that [exotic dancers] are employees of [a strip club]” despite the permanency and duration factor). That is especially true regarding this factor, which courts often assign less weight in the exotic- dancer context. Id. at *12–13.
6. Integral Part of the Business
Burgos’s services were “an integral part of the alleged employer’s business.”
Scantland,
7. Weighing the Factors Based on the foregoing, Burgos is entitled to summary judgment on the issue of whether she is an employee. Five of the six factors weigh in favor of employee status. Defendants offer no evidence and essentially no argument to the contrary. The lone factor weighing in favor of contractor status is at best a mixed bag for Defendants; it is also regarded as the least important factor in this context. Moreover, courts are in near- unanimous agreement that exotic dancers are generally employees, not independent contractors. Taking all this into consideration, I conclude that no reasonable jury would find that Burgos was an independent contractor.
D. Tomkovich Is an Employer
Tomkovich is an employer under the FLSA. See 29 U.S.C. § 216(b) (creating a
private right of action under the FLSA against employers). The FLSA defines ‘employer’
to include “any person acting directly or indirectly in the interest of an employer in relation
to an employee.” 29 U.S.C. § 203(d). “Based on this broad definition . . . [the Eleventh
Circuit has] held that a corporate officer with operational control of a corporation’s covered
enterprise is an employer along with the corporation.” Lamonica v. Safe Hurricane
Shutters, Inc.,
E. Defendants’ Good Faith Defense Survives Summary Judgment
I cannot grant summary judgment on whether the FLSA’s good faith defense
applies. See 29 U.S.C. § 260. Where a jury finds that the FLSA’s overtime or minimum
wage provisions have been violated, “the district court generally must add an award of
liquidated damages[,] . . . which doubles the total damages awarded.” Alvarez Perez v.
Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1163 (11th Cir. 2008) (citing 29
U.S.C. § 216(b)). But the judge may in her discretion reduce or eliminate liquidated
damages “if the employer shows . . . [that he acted] in good faith and that he had reasonable
grounds for believing that his act or omission was not a violation of the [FLSA].” 29 U.S.C.
§ 260. Courts interpret this language as establishing a requirement of both “subjective and
objective good faith.” Alvarez Perez,
Burgos has nоt shown the absence of a genuine issue of material fact as to this
defense. As explained earlier, it is not clear whether Emperor’s Nude or Entertainment
2851 generated enough revenue for the FLSA to apply. And if the Defendants had a
subjectively sincere and objectively reasonable belief that their businesses did not surpass
the FLSA threshold, then they could avail themselves of the good faith defense. Burgos
avers that Defendants were put on notice that their policies violated the FLSA because of
previous actions against Tomkovich’s other businesses. See MSJ at 20 (citing Schofield,
F. There Is a Genuine Dispute Regarding the Alleged ‘Willful Violation’
The FLSA’s statute of limitations increases from two years to three if a plaintiff’s
claim “aris[es] out of a willful violation.” 29 U.S.C. § 255(a). A ‘willful violation’ is
established by a preponderance of the evidence that the “employer either knew that its
conduct was prohibited by the statute or showed reckless disregard about whether it was.”
Alvarez Perez,
G. Burgos’s Earnings Might Offset Minimum Wage Requirements
Finally, Burgos argues that Defendants cannot count the money she earned from
customers to offset her minimum wages. The FLSA does not generally allow employers to
use tip money to satisfy their minimum wage obligations. 29 U.S.C. § 207(h)(1); see also
Compere v. Nusret Miami, LLC,
Department of Labor regulations define a tip as “a sum presented by a customer as
a gift or gratuity in recognition of some service performed for the customer.” 29 C.F.R.
§ 531.52(a). Those regulations аlso specify that service charges are “imposed on a customer
by an employer’s establishment” and sometimes are “distributed by the employer to its
employees.” Id. § 531.55(a); see also Compere, 28 F.4th at 1186–89 (relying on these
regulations to determine that a service charge could count towards minimum wage
requirements). As other courts have noted, this regulatory language implies that the
revenue generated by a service charge is part of a company’s gross receipts. Henderson v.
1400 Northside Drive, Inc.,
Burgos has failed to “demonstrate the absence оf a genuine issue of material fact.”
Clark,
Those facts are far too ambiguous to merit summary judgment. First, it is unclear what amount of Burgos’s earnings was derived from the base prices set by Defendants and how much was given over and above those prices. To the extent Burgos’s earnings came from the former category, they could not be considered tips. Second, even if the money Burgos earned did not come from the base prices set by Defendants, that could be because Burgos charged her customers an amount above the base price. If so, the money would likely not count as a “a gift or gratuity.” 29 C.F.R. § 531.52(a). Third, the fact that Burgos’s customers gave the money first to Defendants and that Defendants later paid a percentage to Burgos is consistent with the notion that the money was a service charge “distributed by the employer to its employees.” Id. § 531.55(a). Fourth, neither party presents any evidence as to whether Defendants included this money in their gross receipts. It is not listed as a break-out item on the sales charts for Emperor’s Nude. Sales Breakdowns at 1–3. Fifth, Burgos does not explain whether she received any compensation for services for which the Defendants did not set base prices. She only specifies that Defendants set base prices for lap dances and VIP dances. Burgos Decl. at 3. Sixth, Burgos does not explain whether she received any compensation for services that was not first given to Defendants and later partially paid out to her. She only specifies that customers gave Defendants money earned from floor and VIP dances. Id. Without this or similar еvidence, I cannot ascertain whether (or by how much) Burgos’s earnings could offset the wages she may be owed.
II. CONCLUSION
For the above reasons, Burgos is entitled to partial summary judgment as to her status as an employee and Tomkovich’s status as an employer. Accordingly, the following is ORDERED:
1. Burgos’s Motion for Summary Judgment (Doc. 119) is GRANTED IN PART and DENIED IN PART.
2. The Court finds that, as a matter of law, Burgos was an employee of Defendants within the meaning of the FLSA.
3. The Court finds that, as a matter of law, Tomkovich was an employer of Burgos within the meaning of the FLSA.
4. But the Court does not determine whether the FLSA applies to Defendants because of the genuine disputes of material fact on the issue.
5. The Court does not determine whether the FLSA’s good faith defense applies.
6. The Court does not determine whether Defendants willfully violated the FLSA.
7. The Court also does not determine whether the money Burgos earned from customers can offset her minimum wages.
ORDERED in Tampa, Florida, on January 22, 2024.
Notes
[1] Burgos also contends that dancers were sometimes required to “tip certain people at the club before [they] left.” Burgos Decl. at 4. But Defendants dispute that allegation with an affidavit from Tomkovich denying the policy. (Doc. 120-4) at 1. They also produce a purported copy of their “no tip policy,” which is a one- page document stating, ATTENTION ENTERTAINERS AND DANCERS THERE IS NO MANDATORY TIP POLICY
[2] Although Burgos’s contracts are not central to this analysis, it is perhaps worth noting that the contracts сontradict themselves as to whether Burgos is an employee. Some sections explicitly disavow the notion of an employment relationship. See, e.g., Turner Decl. at 10–11; 104–105. But others assume that Burgos is an employee. For example, her contracts established a grievance process for “disputes, claims, or controversies.” Id. at 12, 106. Those claims are said to arise “out of [Burgos’s] employment [or] the separation of employment.” Id. The grievance process also assumes that Burgos would have a supervisor or manager to whom she could bring grievances. Id. at 13, 18, 107, 112.
[3] As I explained earlier, Evans (inconsistently) disputes that Burgos worked at the clubs for this length of time. See Evans Letter; Evans Decl. at 1. Yet I cannot consider that evidence.