COMES NATURALLY #40
Spectator Magazine - November 17, 1995
(c) David Steinberg
Erotic Dancers Receive Cash Judgments for Wages in Oregon and San Francisco; Mitchell Brothers Next?; Mark I. Chester's Latest Sexphoto Show
Erotic Dancers Classified as Club Employees in Oregon...
San Francisco lap dancers who are involved in pending legal actions against the owners of the O'Farrell Theater and the Market Street Cinema will be encouraged by a recent court decision in Oregon by Eugene Circuit Court Judge Gregory Foote. In his September 29 decision, Judge Foote ruled that exotic dancers at two Eugene nude dancing clubs, Jiggles and The Great Alaska Bush Company, were in fact employees rather than independent contractors, and as such were entitled to minimum wage salaries in addition to their tips. He awarded the nine dancers involved in the suit $45,441 in back wages, covering the two year period between February, 1992 and February, 1994, plus attorney fees and court costs. The decision upheld a June, 1994 ruling on the dancers' status by the Oregon Bureau of Labor and Industries, a ruling that club operator James Hansen had appealed.
Five years ago, dancers in Oregon clubs were typically paid $5 an hour, plus their tips. Then the IRS came along and got after the owners for not withholding for income taxes, unemployment, and workman's compensation. To get around having to deal with a legitimate payroll, the owners came up with the idea of treating the dancers as independent contractors, and stopped paying the hourly wage. The dancers were upset, and a year and a half ago took their beef to the Oregon Labor Commission.
In April, 1994, the Oregon Bureau of Labor and Industries received complaints from a number of dancers who were receiving no wages for dancing. The dancers, like their counterparts in San Francisco clubs, were in fact being charged stage fees for the privilege of dancing at the clubs. The Bureau met with the dancers, explained the wage claim process to them, and helped them fill out wage claims for the time they had worked in the clubs.
Within six weeks the Bureau had received wage claims from 25 dancers in all. On June 8, 1994 the Bureau ruled that the dancers were indeed employees rather than independent contractors, and directed Hansen and his companies to pay them $143,755 in back wages, and $23,690 in penalty wages. The ruling was contested by Hansen, who requested a court trial.
During the 16-month period between the Labor Bureau ruling and the resolution of the appeal, many of the dancers dropped their wage claims in order to return to work at the clubs. All nine dancers who stuck with the action were awarded back wages. Noting that the case represented a real dispute and not a willful violation of the law, the penalty wages awarded by the Bureau were not upheld by the court.
Although club owner Hansen vows that he will appeal the court ruling "all the way to the Supreme Court if I have to," he "is enjoined to pay the statutory minimum wage [$4.75 in Oregon] to any and all dancers" and otherwise to treat the dancers as employees while his appeals are pending. Joan Stevens-Schwenger of the Bureau of Labor and Industries says that BOLI will vigorously enforce the court ruling whenever it receives complaints that the ruling is not being adhered to.
"Judge Foote's decision sends a clear message to employers in the exotic dancer industry," says Christine Hammond, Administrator of the BOLI Wage and Hour Division. "Exotic dancers are employees. Employers in this industry are now on notice that they can no longer get around dealing with payroll by calling their workers independent contractors." Asked if she saw the lap dancing dispute as a specifically women's issue, Hammond replied, "I don't see how you could avoid seeing this as a women's issue since all of the employees in this industry, at least up here, are women. On the other hand, we are not pursuing these cases because it's a women's issue. We are treating these defendants as we would any other employer that's not paying minimum wage."
Gretchen Merrill, the Oregon Assistant Attorney General who defended the BOLI ruling before Judge Foote, acknowledges that her office is treating the case as a significant action dealing with a situation in which "people who are least able to take care of themselves are being taken advantage of by people in power." As Wage and Hour Administrator Hammond puts it, "It's pretty gross not to pay people the minimum wage, not to pay them the minimum they're entitled to by law."
Merrill is defending a similar BOLI ruling against Portland's Acropolis/McLoughlin club in a case up for decision next January. She says that the circumstances in the Portland case are similar to those in Eugene, and she hopes for a similar decision from the judge there. "The law is clear," says Merrill. "These women are employees."
Although Administrator Hammond notes pointedly that she is "not under any illusion that the industry is suddenly going to come into full compliance" around this issue, her office is prepared to act diligently with regard to any future complaints of dancers not being paid minimum wage.
Phil Yoder, publisher of The T&A Times, a sexually oriented newspaper in Portland, sees the handwriting on the wall and encourages club owners to get used to the fact that dancers are going to have to be treated as employees by all clubs before long. "A lot of clubs and businesses are of the opinion that they somehow are got going to be affected by what is starting to take place here in Oregon, as it relates to whether or not the dancers are independent contractors," says Yoder. "Most of you believe that [you won't have to pay dancers minimum wage] because you use an agent to book your club, make the girls have business cards, have them rent the stage, get them to sign little slips of paper saying they are artisans seeking to further their personal expression." Yoder notes that in two Federal court cases, Reich v. Circle C Investments, Inc. (Alaska, 1993) and Reich v. Priba Corporation (Texas, 1995), dancers have already been declared employees. "To the best of my knowledge," he says, "there has not been a court decision anywhere in recent years where the dancers were considered independent contractors. If you know of one, please tell me.... The IRS has said they are employees and will also fine you if you attempt to misclassify them."
Yoder feels that the wage issue is being raised nationally as a smokescreen by right-wingers who simply want to see nude dancing eliminated as much as possible. In Oregon, he says, "the Bureau of Labor and Industry is a complaint-driven agency." "They'll be the first to tell you that they don't have the funds to initiate investigations unless they receive complaints." He admitted, however, that in the current Oregon cases the complainants have been dancers rather than right-wing moralists.
Public Information Officer Joan Stevens-Schwenger of BOLI says that her agency has been told specifically by people at the U.S. Department of Labor that having nude dancers declared club employees rather than independent contractors is not one of their priorities. With regard to her own agency, Stevens-Schwenger says that they are "not mounting a special initiative, but yes we feel that the dancers have legitimate complaints and we will pursue their case. We feel that this is a group of complainants who are not being treated as they should be treated."
"No one is pushing us on this issue," Stevens-Schwenger insists. She acknowledges that there are neighborhood groups, particularly in Portland, that are upset with the proliferation of nude dancing clubs and are doing what they can to have the clubs eliminated, and that these groups have sometimes met with state regulators. But she says that none of these groups is under the illusion that "paying back wages and taxes is going to put an end to nude dancing clubs." She also notes that the Bureau cannot bring an action against a club because of complaints from neighborhood groups; the complaints have to come from the dancers themselves.
What will happen from here? The court ruling became effective as a permanent injunction against the owners on October 17th. In Yoder's opinion, "some clubs will start paying wages, but most are waiting for the letter in the mail and the fine" for non-compliance. "Most of all, everyone's waiting to see what the other guy is going to do. They're like ostriches," he says, speaking of the club owners. "Humpty Dumpty is the wage and hour thing sitting on the wall and they're waiting to see if someone's going to come along and knock him off." Indicative of the owners' attitudes about the dancers, Yoder tells of one owner who threw up his hands in disgust about the latest ruling. "Dancers can't even spell tax return," the owner complained.
Yoder feels that some of the club owners will simply close shop rather than start to pay dancers wages. One club, Prime Country in Salem, did just that on October 31st, and although there were a number reasons for the club's closing, one factor was the wage issue. With 65 nude dancing clubs in Oregon -- 50 in Portland alone -- there is some room for attrition without nude dancing becoming a thing of the past. Clubs that now have no cover charge may start charging a small amount at the door to cover the cost of dancers' wages.
As for the Bureau of Labor and Industries, spokeswoman Stevens-Schwenger says that with a total of 17 investigators for the entire state, the agency generally waits to hear complaints from employees with regard to continuing non-compliance with a court ruling of this sort. She notes that if the clubs continue to fail to pay wages, they will be subject to penalty judgments as well as liable for the wages themselves. And she cautions that it's always possible for the Bureau to initiate an industry-wide audit on its own, as it has in the past regarding nonpayment of wages to farm laborers and to Christmas tree cutters.
...and at the Market Street Cinema...
Meanwhile in San Francisco, legal actions to have dancers at the Market Street Cinema and the Mitchell Brother's O'Farrell Theater similarly classified as employees are slowly working their way through the legal system. As with completed cases in Oregon, Alaska, and Texas -- and pending cases in San Diego and Los Angeles -- the local actions appear to be moving toward determinations that dancers are indeed employees of the places they work rather than independent contractors as they have been designated by various theaters and clubs.
At San Francisco's Market Street Cinema, according to ex-dancer Laddawan Passar, there have been six separate legal actions brought to date against Bijou Group, Inc. Bijou Group owns the Market Street Cinema as well as Regal Show World, the New Century Theater, and the (male) Campus Theater, all in San Francisco. In 1993, Passar and a second dancer, Johanna Breyer, filed a claim with the San Francisco Labor Commission, where they argued successfully that they and the other dancers at the Market Street Cinema were employees rather than independent contractors. When Bijou Group appealed that ruling to San Francisco Municipal Court, Judge Ronald Quidachay affirmed the decision of the Labor Commission, much as the court has just done in Eugene, Oregon.
A similar claim before the Labor Commission for employee status, back wages, and reimbursed stage fees by Market Street Cinema dancer Carla Williams also brought a ruling that the dancer was entitled to employee status. Bijou Group appealed that decision to San Francisco Superior Court, but on October 5th Judge Lee Baxter affirmed the Labor Commission ruling, and awarded Williams over $52,600 (plus interest, attorney fees, and court costs) for back wages, penalties, and reimbursed stage fees.
On October 18th, the U.S. Equal Employment Opportunity Commission also ruled in favor of Passar, Breyer, and a third dancer regarding their claim of sexual discrimination (male dancers at the Campus Theater are paid wages whereas the female dancers at the Market Street Theater are not), and sexual harassment at the Market Street Cinema.
All three of these judgments are now tied up in Bankruptcy Court where Bijou Group filed for Chapter 11 bankruptcy on September 13th. Bankruptcy papers show that the company had annual gross receipts ranging from $5.2 million to $6.5 million from 1992 to 1994.
...and Soon (Perhaps) at the O'Farrell Theater Too
In March, 1994, Ellen Vickery and Jennifer Bryce, two dancers at the Mitchell Brother's O'Farrell Theater, filed a civil class action suit, seeking double back wages and overtime, stage fees, penalties, and unpaid workers' compensation, social security and unemployment insurance for an estimated 500 dancers who have worked at the O'Farrell Theater since March 24, 1991. The filing of the extensive civil suit resulted in a flurry of publicity at the time, as parties on both sides of the issue made their cases to the press.
In March, 1995, two current dancers, Anastacia Holt and Kithanie Radford-Brown, intervened in the suit, questioning whether Vickery and Bryce truly represented current dancers at the theater. Holt and Brown submitted declarations by 140 current dancers -- members of the ad hoc group Save Our Strippers -- stating that they in fact wished to be considered independent contractors and were opposed to being included as plaintiffs in the Vickery-Bryce suit. Responding to this intervention, Superior Court Judge William Cahill ruled on May 5th that the 140 current dancers at the theater could not be parties to the action.
In June, however, two of the dancers who signed the declarations came forward and testified that they, as well as other dancers, had signed the declarations without reading them, after being subjected to ridicule and pressure to sign by owners of the theater, and by Holt and Brown. On October 20th, stating that he had "reason to question the admissibility and/or reliability of declarations submitted by Intervenors in the original class certification motion, upon which this Court relied in limiting the class," Judge Cahill reversed his May ruling, certifying "all women who have performed as exotic dancers at the Mitchell Brother's O'Farrell Theater at any time from March 24, 1991 to the present" as plaintiffs in the case. To prevent any further attempts by owners to pressure or influence dancers with regard to the suit, Judge Cahill also barred the defendants and intervenors from "communicating in any fashion, whether orally or in writing" with any current or past dancer included in the class action, except with regard to "routine matters and ordinary business activities."
Cahill also ordered the theater to make available to the suing dancers "a comprehensive list of all persons" who have worked at the theater since March 24, 1991, including "old employee files and... current and past computerized records," and to pay the cost of "investigate[ing] and updat[ing] th[is] information regarding the current mailing addresses" of all dancers.
Nine additional dancers, including three women who currently dance at the theater, have joined Vickery and Bryce as named plaintiffs in the case. Lists of names and addresses of past and present employees have been turned over to the dancers' attorneys by the theater and notices of the class action will be sent to dancers and posted in local newspapers sometime in the next three months, after there has been time to research current mailing addresses for all concerned. As is customary in class action suits, dancers will be parties to the suit unless they specifically request to remove themselves from it.
Attorneys Lynn Rossman Faris and Beth Ross estimate that if the suit is successful, total recovery from the theater will be in the range of $5 million to $7.5 million. The case is scheduled to be heard by Judge Cahill on September 16, 1996.
The Cost of Desire
Sexart curator extraordinaire Mark I. Chester has put together yet another exhibition of radical sex photography well worth checking out. Mark's latest show is called "The Cost of Desire: Bondage, Black Men, and Auto-Erotic Suicides." It features the photography of three gay photographers -- Jim James, Rick Castro, and Brad Braverman -- and is confrontative and provocative, to say the least. Most controversial is the work of Brad Braverman, which confronts viewers with erotic suicide images that raise the issue of whether the idea of death itself is erotic, an issue of particular interest in the midst of the AIDS epidemic. As Chester puts it, "Braverman's beautiful men in final exit are like a slap in the face, breaking through the numbness of years of shock and loss. Each one is a personal answer to the question, 'How does one live in such times?'"
Braverman, who is himself seriously ill with AIDS, saw his studio raided on September 27th by Los Angeles County Police. The police confiscated his printer, computer, external hard drive, data disks, utility bills, model releases, and mail order flyers, as well as copies of his films RawShock and pissed. The warrant authorizing the raid claims that Braverman intended to use the materials "as a means of committing a public offense." While copies of the film RawShock were subsequently returned to Braverman, the other items are still in police possession. No charges against Braverman have been filed to date.
"The Cost of Desire" can be seen at Mark I. Chester's studio (1229 Folsom Street, San Francisco) by appointment and on Saturdays and Sundays, 1:00-6:00 p.m., through December 3rd. A $2 donation is requested. For more information call (415) 292-3223.
[This column was originally published in Spectator Magazine (see www.spectator.net). If you would like to receive Comes Naturally columns, and other writing by David Steinberg, regularly via email, send your name and email address to David at firstname.lastname@example.org. Columns are sent as blind carbon copies, meaning that no one will have access to your name or email address.]
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