Plaintiff Brezzy Hurst ("Plaintiff") was a dancer and entertainer at The Follies club. She filed suit against Defendants claiming they violated the Fair Labor Standards Act ("FLSA"),
I. Legal Standard
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "No genuine issue of material fact exists if a party has failed to 'make a showing sufficient to establish the existence of an element ... on which thаt party will bear the burden of proof at trial.' " Am. Fed'n of Labor & Cong. Of Indus. Orgs. v. City of Miami ,
The moving party bears the initial responsibility of asserting the basis for her motion. Catrett ,
II. Factual Background
The Follies is a restaurant and bar in Chamblee, Georgia, where women dance in the nude to entertain men. (Dkt. 87-1.) The Follies has between 60 and 100 female entertainers with varying numbers working at any one time. (Dkt. 98 at ¶¶ 23, 60.) Plaintiff worked as an adult entertainer at The Follies from around November 2010 through April 2014.
III. Discussion
A. Employee or Independent Contractor
The FLSA distinguishes between employees and independent contractors. Employees are entitled to be paid a minimum wage and overtime wages; independent contractors are not. Scantland v. Jeffry Knight, Inc. ,
The Court may consider several factors to evaluate the economic reality, including "(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 equipment 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
In conducting this analysis, a court should not assume that a worker is an independent contractor because he or she has some characteristics of an independent contractor. Mednick ,
Recently, other courts have considered the relationship between adult entertainers and the clubs where they perform, nearly universally finding adult entertainers to be employees. See Hanson v. Trop, Inc. ,
1. The Nature and Degree of Control
The first factor is the nature and degree of the alleged employer's control over how the alleged employee performs her work. Other courts have found that clubs with adult entertainment have control over the work environment of their entertainers. Hanson ,
Regardless of that comparison, the undisputed facts show that The Follies exercised significant control over Plaintiff's work. When Plaintiff arrived at the club, she was required to park her car with the
Defendants also controlled the conditions under which Plaintiff worked. Defendants required Plaintiff to purchase two drink tickets (called "Follies Dollars") every shift she worked. (Dkts. 84 at 30:9-14; 77-1.) She could use the tickets for her own drinks or could sell them to customers. (Dkt. 100 at 10.) But, she had to buy them.
Most of Plaintiff's income came from table dances that she performеd for club patrons. (Dkt. 84 at 206:23-24.)
And, once she arrived at work, Plaintiff was not free to leave. As explained above, upon arrival at work, she had to leave her car key with the club's valet attendant. At the end of the night, she was required to take a breathalyzer test in the presence of a house mom or manager. If she рassed the test, they gave her a "See Ya" pass. (Dkts. 84 at 336:8-20; 79-1.) She had to present her See Ya pass to the valet attendant to get her keys back so she could leave. (Dkts. 84 at 87:9-12; 79 at 50:6-13.) Defendants instructed the valet attendants not to give dancers (including Plaintiff) the keys to their cars unless they presented a See Ya pass. At closing time, The Follies also required Plaintiff and the other dancers to remain inside until all the customers had left the parking lot. (Dkt. 84 at 85:4-86:2.)
Plaintiff claims she also had to tip out the bar tenders, DJ, and house mom, and get them to sign her See Ya pass to confirm she paid them before she could leave. (Dkt. 84 at 335-337.) The See Ya pass - created by Defendants - has spaces for their signatures, thus supporting her claim. (Dkt. 79-7.) In addition, the DJs kept "sign-in sheets" that listed each dancer and included a space for each dancer labeled "tipped out." (Dkts. 79-11; 79-12; 79-13; 79-14.) It also had a note stating "[t]here will be no arguing or getting angry with [the e]ntertainers. If they do not tip correctly, have the Manager talk with them." (Id. ) This document supports Plaintiff's claim that she was required to tip the DJ and that The Follies manager had
Defendants dispute that they required Plaintiff and other dancers to pay these other workers. (Dkt. 100 at 11.) In support of this, Defendants cite Plaintiff's admission that the house moms sometimes allowed her to leave without paying them. She explained, however, that in these situations the house mom expected Plaintiff to pay the amount owed on her next shift. (Dkt. 84 at 286:16-23.) Defendants also presented an affidavit from a former dancer and current house mom, Abigail Dunahoo, who averred that tipping was voluntary and customary but not mandatory. (Dkt. 87-7 at ¶ 9.) A genuine issue of fact exists as to whether tipping was mandatory or simply customary.
It is undisputed, however, that, before she could get her keys and leave, Plaintiff had to pass a breathalyzer test in the presеnce of a house mom, pay her house fee, and present a See Ya pass to confirm she had done both. (Dkt. 79-16 at ¶ 55.) If Plaintiff did not pass the breathalyzer test, the club would keep her car keys and send her home in a cab or with a friend. (Dkt. 84 at 333:19-21.) On occasion, when The Follies closed at 4 a.m. and 100 entertainers needed to check out simultaneously, Plaintiff had to wait to leave for an hour and a half. (Id. at 83:22-25.)
All of these rules - requiring Plaintiff to pay a house fee, requiring her to purchase and resell drink tickets, controlling which customers she could entertain, setting minimum prices she could charge for services, controlling the hours of operation, requiring her to jump through hoops to leave, and charging her higher fees if she left early - allowed Defendants to control the circumstances under which Plaintiff was allowed to work. They are relevant to the control analysis and weigh in favor of a finding that Plaintiff was an employee of Defendants rather than an independent contractor working for herself.
These same factors also have been cited by other courts in finding exotic dancers tо be employees. Reich v. Circle C. Investments, Inc. ,
Defendants argue that the control they exerted over Plaintiff was insufficient to qualify her as an employee. Defendants point to the disputes about whether she was required to tip DJs and bartenders and whether she was required to perform on stage. They also point to the fact that Plaintiff had no set hours and requirements as to the number of shifts she had to work each week. (Dkt. 88 at 16.) Regardless of these details, the inquiry remains "whether a ... dancer's freedom to work when she wants and for whomever she wants reflects economic independence, or whether these freedoms merely mask the economic reality of dependence." Harrell v. Diamond A Entm't, Inc. ,
Defendants also argue that the house fee did not operate as a "carrot or a stick" that pressured dancers to remain at the club. Instead, they claim that it was "essentially a charge for renting floor space." (Dkt. 98 at ¶ 139.) They claim that the fees "increase at certain times because the demand per square foot increases with the number of entertainers willing to compete for that space and [they] charge more during times that entertainers are willing to pay more." (Id. ) The notion that Plaintiff rented floor space is absurd - Defendants' silly attempt to redefine reality to avoid the consequences of their conduct. Neither Plaintiff nor any dancer controlled any section, portion, or square footage of the club. They walked throughout it, performing wherever customers wanted them to dance. Defendants introduced no document or evidence to suggest there was any assessment of supply and demand, square footage, or space used in setting the house fees.
The house fees depended on two things - when dancers got to the club and when entertainers left the club. (Dkt. 79 at 74:11-14, 81:15-20, 82:23-83:1.)
Defendants next argue that the breathalyzer requirement did not establish control because the only consequence of failing the test was having to take a cab home. (Dkt. 97 at 13.) The Court rejects this argument. The breathalyzer requirement placed a constraint on Plaintiff's ability to leave upon her own initiative. It might also have increased public safety (making it a good policy) but it exerted control over Plaintiff's working conditions.
Defendants claim the club's managers did not routinely enforce minimum price requirements for dances. As a result, they claim the minimum prices requirement did not actually exert any control over Plaintiff. (Dkt. 97 at 12.) Defendants set this rule, and absent evidence that Plaintiff knew Defendants did not enforce it (and no such evidence has been presented), the rule controlled her behavior. The requirement of minimum prices, enforced or not, controlled Plaintiff's work at the club. See Vaughan,
Defendants next contend that that their control of the hours, employees, and clientele had no impact on Plaintiff's earning potential and thus did not constitute a form of control. (Dkt. 97 at 9.) The Court rejects this argument. "Defendants created and control the atmosphere and surroundings at [the club], the existence оf which dictates the flow of customers into the club. An entertainer can be considered an independent contractor only if she exerts such a control over a meaningful part of the business that she stands as a separate economic entity." Reich ,
It is true that Defendants did not control some elements of Plaintiff's work. (Dkt. 97 at 6.) Plaintiff, for example, was not required to dance for customers while at the club, but rather could spend her time drinking, playing games, talking to customers, or even taking a nap. (Id. ) She also decided how to dress, whether to wear a wig, and how to interact with customers. (Id. ) "The mere fact that [the club] has delegated a measure of discretion to its dancers about how best to entertain its customers does not necessarily mean that its dancers are elevated to the status of independent contractors. Indeed, one could say that the nature of [an entertainer's] job requires some measure of discretion and flexibility." Harrell ,
Defendants repeatedly argue that they exerted less control over Plaintiff than other strip clubs exert over their dancers. They argue, for example, that they did not fine Plaintiff if she was late or wore something they did not like, impose shift requirements,
2. Opportunity to Make a Profit/Make a Loss
The second factor is the putative employee's opportunity for profit or loss depending on her managerial skill. Working as an entertainer at The Follies, Plaintiff could profit by selling dances to customers or having them pay her for conversation. That is how she made her money. (Dkts. 97 at 12; 98 at ¶ 44.) Defendants argue that Plaintiff's profits depended on her initiative - that is, they claim she earned more if she hustled more and less if she hustled less. She controlled how she looked, how she danced, and how she interacted with her customers. The more pleasing she was, the more she made. They also note that Plaintiff admitted that, even when the club provided a steady stream of customers, there was no guarantee the customers would pay her to dance. (Id. ) Some nights she did better than others. Some nights she changed costumes or a wig to make herself more appealing to customers. Sometimes it worked and sometimes it did not. Defendants characterize this as her "managerial skills" under the economic reality test. (Dkt. 97 at 14.)
Certainly, Plaintiff had the ability to earn more tips if she was more appealing to customers. That fact does not distinguish her from a waiter, a bartender, or many other service industry workers typically considered employees. Moreover, Defendants controlled the club's customers, drawing customers to the club or not. They controlled the location, hours of operation, facilities, music, beverages and food, and number of entertainers. (Dkt. 77 at 21:14-22, 38:9-11; Dkt. 79 at 20:4, 26:10-13, 27:5-10, 73:5-8, 74:1-5; Dkt. 84 at 44:14-22; Dkt. 86-6 at ¶¶ 23-26, 31-33, 58-59.) No matter what she did, she could not earn money in the club unless Defendants provided customers. And as explained above, Defendants set a minimum price at which Plaintiff could sell her services. Defendants' decision to control a key metric - price - further lessened Plaintiff's control over profits and loss. Defendants exerted even more control by deciding not to allow womеn in the club unless accompanied by a man.
The undisputed facts show that Defendants controlled all aspects of the club's operation and thus were primarily in control of Plaintiff's opportunity to make a profit. See Vaughn,
It is also worth noting that Plaintiff risked far less than Defendants. Her risks consisted of the house fees and the expenses related to make-up, hair, and outfits. (Dkt. 98 at ¶¶ 34, 47.) In contrast, Defendants risked losing the investment of the club's overhead expenses including rent, maintenance, security, insurance premiums, and employee salaries, which totaled
The second factor points towards an employee-employer relationship.
3. Relative Investment
The third factor is the alleged employee's investment in equipment or materials required for his task, or his employment of workers. Plaintiff invested in the outfits that she wore for entertaining, the upkeep of her hair, and makeup. (Dkt. 98 at ¶¶ 34, 149-152.) This may have cost her "a couple of thousand dollars" a year. (Id. ) Defendants claim her expenses were higher - maybe $ 10,000 a year. (Id. ) They get that calculation by always using the high-end of rough estimates Plaintiff provided about the items she bought and the amount she paid for them. (Id. ) But, even accepting that exaggeration, the difference is immaterial.
Defendants paid more than $ 10,000 a month in rent. (Dkt. 86-7 at 8.) They also invested in materials for the building, which included televisions, a music system, a stage, VIP rooms, and the adult entertainment permit. (Dkt. 86-6 at ¶ 19.) They paid liability insurance, building reports, and maintenance, utilities, security, and payroll for managers, bar, and kitchen staff, floor men, and others. (Dkt. 98 at ¶¶ 28-33; Dkt. 86-7 at 8-9.) It is undisputed that these expenses totaled more than $ 840,000 in 2016. (Id. ) Defendants concede they would have been the same each year. (Id. )
Defendants argue that the correct analysis is not whether they spent more on the business than Plaintiff, but whether "Defendants' investment into Plaintiff's business was 'material.' " (Dkt. 97 at 18.) Defendants cite Harrell for this proposition. That opinion does not support Defendants' argument. To the contrary, the court in Harrell used the term "material" to describe the club's investment in advertising, facilities, and maintenance - the same investments Defendants concede they made in this case but try to exclude from the analysis. Harrell ,
Defendants seek to minimize the $ 10,000 investment they made each month in rent by arguing that the Court should only consider rent applicable to "entertainer-specific areas" - that is, the stage, the dressing room, and the area where the house mom works. Defendants claim this area amounts to only 491 square feet of the entire building, or $ 734.00 of the $ 10,000 in monthly rent. Of course, these areas are part of the overall premises and Defendants cite no authority to suggest the Court should artificially apportion the venue for assessment of each parties' investment in equipment and materials. In addition, dancers are not limited to these areas as it is undisputed that they have free run of the entire space. Private table dances and VIP room dances do not occur in these areas. Indeed, dancers are not even required to dance on the stage. And, as explained above, Defendants argue that Plaintiff and other dancers were not required to entertain customers by dancing but could talk with them, play games with them, or have a drink with them. The point is that the entire building (except perhaps
Similarly, Defendants argue that other expenses related to the operation of the club - like liability insurance, building repair and maintenance, utilities, and payroll - should not be considered because they were only material for the operation as a bar. (Dkt. 97 at 20.) Not true. The dancers had access to nearly the entire building and were integral to the business's operation. All expenses related to the operation of the building were part of Defendants' investment.
Comparing the club's expenses to Plaintiff's expenses, the Court finds - again as nearly every other court has found - that the third factor points towards an employee-employer relationship. See e.g., Reich,
4. Special Skill
The fourth factor is whether the service rendered requires a special skill. Other courts have found that adult entertainers' dancing requires no special skill. Clincy v. Galardi South Enterprises, Inc. ,
5. Permanency and Duration of the Relationship
The fifth factor is the degree of permanency and duration of the working relationship. Permanence or a longer duration suggest an employment relationship. Courts have considered the consistency of the work, whether the job was the primary source of employmеnt, and the duration of the relationship. (
Plaintiff argues that the permanence factor weighs in her favor. She worked at The Follies from around November 2010 until April 2014. (Dkt. 86-6 at ¶ 5.) While records were not available throughout the entire time, records from her last six and a half months at the club show that she worked ninety-eight shifts during that time, averaging nearly 3.5 shifts per week. (Id. at ¶ 7.) Defendants respond that this is not an impressive amount and that Plaintiff also worked at other clubs during this time. They claim her concurrent performance at other clubs shows a lack of economic dependence on them. (Dkt. 97 at 22.) Defendants' argument fails on both accounts. Working at other clubs does not diminish Plaintiff's relationship with The Follies. Many people are employed at two jobs. McFeeley,
Courts have noted that "nude entertainers tend to be transient or itinerant." Clincy ,
6. Integral Part of Alleged Employer's Business
The sixth factor is the extent to which the service rendered is an integral part of the alleged employer's business. Defendants argue that entertainers are not integral to the business of The Follies because the club "is not a traditional strip club with a traditional strip club business model." (Dkt. 97 at 23.) Instead, The Follies provides "a variety of entertainment options packaged in a friendly, neighborhood dive bar environment." (Id. ) Defendants acknowledge that other defendants have made similar arguments in similar cases, and that courts have consistently rejected those arguments. (Id. at 23.)
Defendants argue that the test about whether the presence of entertainers are integral to the business is "whether [The] Follies needs entertainers." (Id. at 24.) Defendants offer no citation for this conception of "integral," and, notably, the recent cases that have addressed this issue have looked at whether the business would not exist without the presence of nude entertainment. Other clubs with adult entertainment have made similar arguments, but courts have rejected these arguments as absurd. See Clincy ,
Whether The Follies would or would not exist without nude dancers is a purely theoretical question. That it has had nude dancing for twenty-five consecutive years - its entire existence - is an empirical fact. (Dkt. 98 at ¶ 60.) The sign outside the club includes its logo, the word "Follies" below a pair of legs wearing underwear and high heels:
7. Weighing the Factors
The Court finds that every factor points towards an employee-employer relationship, and thus that Defendants misclassified Plaintiff as an independent contractor. Perhaps Defendants are correct and they had less control over Plaintiff than other strip clubs had over their dancers, but Defendants still maintained significant control over Plaintiff and her ability to make money. Furthermore, when considered together, the conditions under which Plaintiff performed show that Plaintiff depended economically on Defendants. This economic dependence - as well as the other facts discussed above - leads the Court to conclude that Plaintiff was an employee entitled to protections of the FLSA.
B. Defendants White and Youngelson as "Employers"
In addition to suing WBY, Inc., Plaintiff sued Defendants White and Youngelson individually. The individual Defendants moved for summary judgment arguing that they did not employ Plaintiff.
Defendants White and Youngelson cannot be held liable for violating the FLSA's unless they are "employers" within the
To determine whether an individual is an employer under the FLSA, the court must consider the facts of the case "in light of the 'economic reality' of the relationship between the parties." Villarreal v. Woodham,
The Eleventh Circuit has also recognized that "the overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages." Patel,
An analysis of the guidance set forth by the Eleventh Circuit demonstrates that Defendants White and Youngelson were employers along with WBY, Inc. First, and most importantly, Defendants White and Youngelson decided not to classify Plaintiff as an employee and pay her a wage. Instead, they decided WBY, Inc. would treat her (and presumably all other dancers) as an independent contractor - the decision that violated the FLSA. (Dkt. 86-5 at ¶¶ 9-10.) That the individual defendants controlled the club's decision to misclassify Plaintiff provides significant reason to consider them employers. See Stuart v. Resurgens Risk Mgmt., Inc., No. 1:11-cv-04251,
The individual defendants also admit that they set up The Follies when it opened twenty-five years ago and operated it before stepping away in more recent years. The undisputed evidence shows that they were sufficiently involved in the business and its day-to-day operations to be considered Plaintiff's employer. Defendants White and Youngelson selected the manager of the club. (Dkt. 78 at 9:10-12.) By their own admissions, they also maintained "active oversight." (Id. at 31:5-9; 78-3 at 4; 79 at 68:20-25; 79-9 at 4.)
This statement is supported by their behavior. Defendant Youngelson receives nightly text messages from the manager regarding club revenue. (Dkt. 77 at 37:21-38:8.)
Defendants' ownership interests also support this conclusion. See Shultz v. Mack Farland & Sons Roofing Co. ,
White and Youngelson each have two children on The Follies payroll. All four have squishy responsibilities. Defendant Youngelson, for example, explained that his son and daughter work there. When asked what their roles were, he responded "Whatever I want it to be." (Dkt. 79 at 39:12-14.) He then explained:
They do whatever I ask them to. They're my - They're my eyes and ears and [Defendant White's] kids are his - are our eyes and ears. They check what - the boys will come in like different times and report to us who's working, who's not. Brett does a little work in the valet, they do maintenance, they - they explain - the girls explain music to me. Whatever they want, I mean, go do this, okay, that's it.
(Dkt. 79 at 39:16-23.) When asked who gave them the jobs, he stated "[Defendant White] and I. It's our business. I'll pay anybody I want." (Id. at 40:1-3.) Defendant White also testified that he hired his children, saying that they are salaried employees involved in maintenance. (Dkt. 77 at 8:6-16.) Defendant White and Youngelson argue that their children's involvement is irrelevant. The Court disagrees. The fact that they can place four children on the company's payroll to be their "eyes
The Court notes that some factors found relevant in similar cases are not firmly established here. Youngelson and White were not involved in the recruitment of entertainers. De Leon-Granados v. Eller & Sons Trees , Inc.,
Defendants make several more arguments. Defendants argue that, because the club has an operations manager, they were not involved in day-to-day operations. (Dkt. 95 at 4.) "While this evidence may indicate that [the manager] exercise[d] some authority over the Club, it fails to create an issue of fact with regard to whether [the club owners] also exercise[d] authority over the day-to-day operations of the Club and supervise[d] the entertainers." Henderson v. 1400 Northside Drive, Inc. , No. 1:13-cv-3767,
Defendants White and Youngelson argue that, although they had the authority to exercise more operational control, they did not do so, thus preventing them from being considered employers. Patel ,
Defendants White and Youngelson argue that, although they set the cover charge, decided not to admit female customers who were not accompanied by a man, determined the hours of operation, and set the minimum charges for dances, they did all of this when the club first opened. They claim, therefore, that these facts cannot be considered when assessing their supervisory role during Plaintiff's employment. (Dkt. 100 at 2.) They cite Alvarez Perez in support of their contention. But, in that case, the evidence showed that - while the defendant established policies when the company began - he later had a heart attack, stopped coming to the facility more than once a year, and turned operations over to his son. Alvarez Perez ,
C. Unopposed Motions for Summary Judgment
Plaintiff's motion for summary judgment raises three issues that Defendants do not oppose. These issues are whether WBY qualifies for enterprise coverage, whether
In unopposed motions for summary judgment, "the district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion." United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla. ,
1. Enterprise Coverage
If an employer qualifies for either individual or enterprise coverage, then the employer assumes minimum wage requirements under the FLSA.
Under the FLSA, employers must pay the statutorily required minimum wage to "each of [its] employees who in any workweek is (1) engaged in commerce or in the production of goods for commerce ['individual coverage'], or ... (2) employed in an enterprise engaged in commerce or in the production of goods for commerce ['enterprise coverage']." Henderson v. 1400 Northside Drive, Inc. ,
Plaintiff alleges that "Defendant WBY, Inc. was an enterprise engaged in commerce or the production of goods for commerce within the meaning of the FLSA in calendar years 2012, 2013[,] and 2014." (Dkt. 86-6 at ¶ 1.) Defendants do not dispute this assertion. (Dkt. 98 at ¶ 1.) The record also establishes that WBY has employees engaged in commerce and has at least $ 500,000 of annual gross volume of sale made or business done. (Id. at ¶ 1; Dkt. 87-1 at ¶ 20.) Accordingly, the Court rules that WBY is an enterprise under the FLSA.
2. Creative Professional Exception
The Creative Professional Exception provides that employers do not have to pay the minimum wage to professionals that fall within the definition of a "creative professional."
To qualify for the "сreative professional" exception, the employer must compensate on a fee basis at a rate of at least $ 455 per week and the employee's primary duty is the performance of work "requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor." Henderson v. 1400 Northside Drive, Inc.,
This Court agrees. Managers at The Follies do not select entertainers based on their dancing skill. (Dkt. 98 at ¶ 39.) Instead, managers select entertainers based on whether the manager believes the entertainer will spark customers' interest. (Id. at ¶ 37.) The manager makes this determination based on a combination of the entertainer's attractiveness and personality. (Id. at ¶ 39.) Dancers need not dance for the manager before they may dance at Thе Follies. (Id. at ¶ 40.) Customers often pay for time in conversation. (Id. at ¶ 43.) The Court finds that Plaintiff's job at The Follies does not require the applicable invention, imagination, or originality, and, as a result, Plaintiff does not qualify for the "creative professional" exception.
3. Offsetting Minimum Wage Obligations
Plaintiff moves for summary judgment on whether Defendants have an offset defense. (Dkt. 86-6.) Defendants do not challenge this issue. The FLSA allows employers to use service charges to offset the employer's obligations to pay employees.
The fees that Plaintiff received from customers of The Follies were tips, not service charges. First, WBY does not record any of the payments that it makes to entertainers by customers. (Dkt. 98 at ¶¶ 92-93, 95-96, 98-100.) Second, the fees that customers pay dancers go directly from customers to dancеrs. (Id. at ¶ 97.) The company does not distribute these fees to the employee. (Id. ) As a result, under the FLSA, the fees that go from the company to the entertainers are tips and not service charges. The Court finds Defendants are not entitled to offset their minimum wage responsibilities with the tips that Plaintiff received.
D. Defendants Violated the FLSA's Minimum Wage Provisions
Plaintiff moves for summary judgment on whether Defendants have violated the FLSA's minimum wage provisions. Defendants contest this issue. The FLSA requires that employers pay the minimum wage to employees. To fall under the FLSA's requirements, the employer must have employees and these employees must be engaged in commerce.
Defendants make two arguments. First, Defendants claim that Plaintiff has failed to assert the elements of a minimum wage violation. Defendants point out that "a failure to pay wages for all the hours worked will only result in a minimum wage violation when the total amount falls below the amount of wages guaranteed under the FLSA." (Dkt. 95 at 7) (citing Arriaga-Zacarias v. Lewis Taylor Farms, Inc. , No. 7:08-cv-32,
Defendants also argue that Plaintiff bears the burden of identifying the workweeks in which she was "inadequately compensated." (Dkt. 95 at 6.) Tо establish a prima facie case of an FLSA violation, Plaintiff must show "as a matter of just and reasonable inference" the amount and extent of her work to show that her employer inadequately compensated her under the FLSA. Rance v. Rocksolid Granit USA., Inc. ,
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff's Motion for Partial Summary Judgment (Dkt. 86) and DENIES Defendants' Motion for Summary Judgment (Dkt. 87).
SO ORDERED this 28th day of January, 2019.
Notes
WBY, Inc. is the corporation that does business as The Follies. Defendants White and Youngelson both own fifty percent of WBY. Dkt. 77 at 12:25-13:1; Dkt. 78 at 8:1-3.
Defendants claim that time at which Plaintiff worked at The Follies before October 7, 2012 is immaterial. Dkt. 98 at ¶ 5.
The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard ,
The Court is aware of district court cases from outside the Eleventh Circuit finding adult entertainers not to be employees. See Hilborn v. Prime Time Club, Inc. ,
Plaintiff could also earn money by dancing for patrons in the VIP room, going on stage to dance, and having conversations with customers. (Id. at 109:13-19; 206:19-22.) But, again, most of her money came from table dances.
Defendants also submitted a declaration from another former dancer, Zoe Mae Herbst, in support of various assertions, including their claim that tipping bartenders, DJs, and house moms was not mandatory. Plaintiff objected to that declaration as barred by an earlier ruling from the Court. Plаintiff is correct. In the final weeks of discovery, Defendants provided Plaintiff declarations from fifteen former dancers at The Follies, claiming they might be witnesses in this case. The Court ruled that Defendants' late disclosure violated Federal Rule of Civil Procedure 26 and that, pursuant to Rule 37(c)(1), Defendants could not rely on declarations from those witnesses in opposing summary judgment. (Dkt. 82.) Ms. Herbst was not on that list. Defendants did not disclose her as a potential witness until months later when it opposed Plaintiff's motion for summary judgment. The reasoning and result set forth in the Court's previous order applies to the failure to disclose Ms. Herbst during discovery. Indeed, it would make little sense to bar Defendants' reliance on witnesses disclosed at the very end of discovery only to allow reliance on witnesses disclosed even later. The Court will not consider Ms. Herbst's declaration. Even if the Court did consider her declaration, the facts she offered are largely duplicative of information provided by other witnesses, particularly Abigail Dunahoo. Ms. Herbst's declaration - even if considered - would not raise an issue of material fаct so as to defeat Plaintiff's motion for summary judgment.
Throughout this matter, Defendants have refused to call Plaintiff a "dancer," insisting that she be referred to as an "entertainer." They apparently believe this label somehow distinguished her from the exotic dancers in the other cases cited herein and makes her an independent contractor. (Dkt. 77 at 26:8-21.) Of course, the economic realities test exists because a putative employer's labels are not controlling (or even persuasive). The Court recognizes little difference between the two labels given the realities of the services Plaintiff provided Defendants' business. They dance and they entertain Defendants' customers. The Court, therefore, uses the terms interchangeably.
Defendants argue that the legs on this sign could also be interpreted to be wearing a garter belt. (Dkt. 98 at ¶ 2.) The Court is unsure that this alleged distinction makes a difference.
Defendants argue that the club layout tracked a previous use of the space. When questioned, however, if the club was "designed so that you could see the stages from everywhere," Defendant White responded, "[f]rom the bar area and all four corners of the room, yes." (Dkt. 78, 35:5-9.)
Defendants dispute this point, saying that "the testimony cited by Plaintiff simply acknowledges that the quoted verbiage can be found in WBY's Disclosure statement filed with the Bankruptcy Court." (Dkt. 98 at ¶ 80.) It is unclear why the Court would not consider quoted testimony from a disclosure statement on Defendants' roles within the club. Furthermore, the facts underlying this statement are supported by the facts within the case.
Defendants argue that this statement is "immaterial insofar as it establishes the extent of Youngelson's control or involvement in Follies' day-to-day operations." (Dkt. 98 at ¶ 69.) The Court disagrees.
Plaintiff disputes this fact, pointing to White's testimony in which he said he would give instructions as he saw fit. (Dkt. 78 at 21:5-10.)
Defendants' citation to the Santos case is also unavailing. In Santos v. Cuba Tropical, Inc. ,
The Court means no disrespect to hard-working people in Plaintiff's industry. They simply do not meet the FLSA's definition of a "creative professional."