You Cannot Consent To Being Treated Illegally: An Interview With Corinna Spencer-Scheurich

I’m currently in the beginning stages of suing local Portland strip club Casa Diablo. So of course when last fall the Oregon chapter of the National Association of Social Workers hired lobbyists from lobbying firm Pac/West to find out what protections strippers need and to craft a bill that offers these protections, I was very interested. But by the second meeting it was clear that as far as knowing strippers’ rights was concerned, both groups were starting from a blank slate.

To clear the matter up, I talked via e-mail to Corinna Spencer-Scheurich, a lawyer from the Northwest Workers’ Justice Project, an Oregon organization that represents workers in wage claims, does education and outreach about wage theft, and works on other ways to promote human and labor rights. This fall, Spencer-Scheurich represented a dancer in a lawsuit against Portland club Rose City Strip, which won in arbitration. She’s also done two presentations on the legal rights of strippers for SWOP-PDX.

Red: In most of the country, strippers are working thinking they’re independent contractors.  But are they really?  We’re winning these lawsuits for employee status across the country—Rick’s, Sapphire, Spearmint Rhino, Rose City—what are the indicators of independent contractors status?

Corinna Spencer-Scheurich: Those are a lot of big questions so let me see if I can break it down.  Many workers (including dancers) are treated as independent contractors, when they are actually employees. This happens in a lot of industries.

Red: Like FedEx drivers it turns out! And Uber drivers.

Spencer-Scheurich:  Exactly.  So this is a big problem overall.  It is especially rampant in the exotic dancing industry. Clearly, there are independent contractors who are dancers. The clear cases are where people are headliners or traveling acts, etc. Where they are their own business entity separate from the club. But, there are many more dancers who are employees. And those are the cases that you are seeing dancers bring across the country.

Red:  So to really be an independent contractors would you have to be registered or licensed as your own business?

Spencer-Scheurich: That would be one hallmark of an independent contractor. Another might be that the dancers could actually negotiate their contracts (instead of everyone [being] subject to the same rules).

Red:  So being able to change prices for dances, or [deciding] when they show up to work and leave?

Spencer-Scheurich: Right, the less control the club has over the dancer, the less likely the dancer is going to be an employee. So, you are more likely to be an employee if you are subject to fines, can’t set your own schedule, have to dress a certain way, can’t control how you are paid, etc. No particular factor determines whether you are an employee or [an] independent contractor. Courts just look at the whole picture. One big piece of the whole picture is whether the dancing is an integral part of the club’s business. As we know, strip clubs need strippers.

Red: There seems to be a lot of confusion about what it MEANS to be an independent contractor as opposed to an employee. Because clubs in Portland for the most part don’t have us sign paperwork, people think that they’re entirely anonymous and off the record, and that being an employee would be something that would show up on housing or employment background checks.

But A) clubs are supposed to be filing tax paperwork on us, right? Either 1040s or 1099s? And B) no one has access to employee records except the government anyway, so there’s no reason it should show up on a background check and result in the outing of a dancer anymore than independent contractor paperwork, right?

Spencer-Scheurich: It is actually not easy to get tax information. More often than not, people give it up voluntarily to apply for loans etc. Also, even if dancers are not filing taxes because they are treated as an independent contractors, they should be.

Red:  But overall, here in Oregon where there’s no licensing, it’s private info?

Spencer-Scheurich:  Right. It should not come out in a background check unless you disclosed the info somewhere else. No one can get the filings unless you have given them permission.

Red:  So are clubs supposed to be filing tax paperwork for their dancers?  Do the owners of salons or cab companies or construction companies have to file paperwork about their independent contractors?

Spencer-Scheurich: If you pay someone more than $600 a year, you have to issue them a 1099.

Red:  Is this where employee status comes back into play?

Spencer-Scheurich: Right. Since most dancers are actually employees, clubs should be issuing W2[s] that include reporting on tips. And this is to dancers’ advantage. When someone is treated as an employee, the employer pays 7.5% of the employment taxes. As an independent contractor, you have to pay all of the employment taxes yourself.

Red:  There’s a lot of fear that we’re going to end up on minimum wage.

Spencer-Scheurich:  The thing about minimum wage is that you get minimum wage plus tips. Consider how much bartenders make in this town.

Red: What are some things employees can access that independent contractors can’t?  Workman’s comp., benefits, sick days?

Spencer-Scheurich: Employees have a right to workers’ comp. if they are injured on the job, to unemployment benefits if they are let go (not for cause) or the club closes, to paid sick days in Portland and Eugene, to protections from discrimination, to unpaid medical leave, to name a few.

They have the right to organize.

The thing to remember about these protections is that you cannot voluntarily give them away. If you are treated as an independent contractor, but are really an employee, you can invoke your right under these laws at any time.

Red: Yes!  You cannot consent to being treated illegally.  This is currently a big point of contention with the strippers of Portland. You also cannot consent to being shot.  Okay.  So, legally, what can we do short of suing, anything? With regard to the legislation—is it POSSIBLE to protect our rights through legislation?  Because so far no real protections are being written. PacWest is pushing a poster of rights that would be hung in the dressing room.

Spencer-Scheurich: You can sue, you can organize, or you can wait until you need a particular protection and then enforce your rights.

Red: What are some ways to enforce our rights?

Spencer-Scheurich: You can enforce your rights by filing for workers’ compensation benefits if you are injured on the job. You can file for unemployment if the club shuts down or stops scheduling you.

Red:  Do you know if that’s hard [to file successfully]?  Do employers ever put up a struggle?

Spencer-Scheurich:  I am sure that they do. And you might need a lawyer in the end, but there are some great workers comp attorneys out there. You can file a complaint with the Bureau of Labor and Industries (BOLI) Civil Rights Division if you think you are a victim of discrimination. You can file a complaint with the National Labor Relations Board if you have been retaliated against for complaining about the conditions of employment on behalf of yourself and your co-workers.

Red:  Do they provide a lawyer?

Spencer-Scheurich: BOLI? They do their own investigations. You can go through it with a lawyer or not.

Red:  All of these actions are very intimidating; they would definitely involve losing shifts and potentially the possibility of [not] being hired at other clubs too.  Being fired might not be forever though, because the act of retributive firing proves that dancers do not have ultimate control over their schedules.

Spencer-Scheurich: Right. Back to what makes someone an employee: losing shifts as retaliation does show that they have control enough over you for you to be an employee. The test is not a clear one, unfortunately. But, that is true for all employees. We just have a better culture of treating, say office workers, as employees than we do for dancers. Otherwise, clubs will be content to take advantage of dancers’ desire to remain anonymous and their fear of reporting information to the taxing authorities.

Back to some of the retaliation you mentioned (like being fired or blacklisted). All of the protections that I mentioned have anti-retaliation provisions. So, if I complain about not being paid minimum wage and am fired, I can add that claim to any lawsuit that I file and potentially recover my lost income.

Red: How long does it take to enforce the anti-retaliation provisions?  Would the lawyers at BOLI or the National Labor Relations Board be able to give someone their spot on the schedule back?

Spencer-Scheurich: The time [it takes]  depends on the type of case. For example, for larger employees the right to organize is protected by the National Labor Relations Board.

Red: Because I know that is a huge concern.  When it comes to livelihood vs rights, most people have to pick livelihood.

Spencer-Scheurich: It is never ideal to be fired, I know. For minimum wage rights, you can go back six years to recover unpaid wages.

Red:  It gives people time to set up a plan too.

Spencer-Scheurich:  The first step is to figure out what your rights are. Then you can see what you can afford to complain about and whether there is something you can do with your co-workers to make a change.

Red:  So can you list what our rights are?  Do our rights change based on the structure of the club? Would rights at Casa Diablo [strip club], which is clearly an employee situation, be different than rights at the Golden Dragon [strip club], which has no schedule and allows dancers to set their own prices?

Spencer-Scheurich:  There is no black and white test. So I am going to list some factors that would give you checkmarks in the employee category first.

•  You are an integral part of the business
• The employer controls the premises (think bouncers here)
• The employer has a large investment as compared to the potential employee (always true at clubs, right? their overhead is huge compared to a dancer[‘s])
• No specialized skill is needed (might depend on the case, but untrained dancers are not usually considered skilled even if they have a lot of experience or ability)
• The more permanent or exclusive the working arrangement the better, although courts have recognized that dancers often work at multiple clubs and are still employees.
• Who controls the opportunity for profit and loss? In [a] strip club case that might be who does the advertising, who draws in the customers? Is it an individual dancer or more the club and its reputation, advertising, location, drinks, events, etc?
• Does the job require some sort of business initiative? Usually not the case for dancers because “hustling” for tips doesn’t count (otherwise no restaurant server would be an employee).

All of the ways that dancers are controlled—music, number of songs per set, order of dances, how and when to undress, rules re interactions with patrons, fees, fines, dress codes. Any of these could show that someone is an employee

Red:  And they would also show that the person has the rights and protections of an employee?

Spencer-Scheurich: Right. Things in the independent contractors category:

• Business license
• Organized separate business entity
• Self-promotion or advertising
• Independence in scheduling, dress, music
• Contract negotiation
• If someone just does a show or two in a place and then moves on

Remember, it is not enough to just check off one of these to be an independent contractors. You compare the independent contractors column to the employee column and then weigh which someone is. Sometimes you also have to look at the booking agent. Is the booking agent an independent contractor or really an employee of the club? Same basic test applies.

Red:  Does that make a difference in whether dancers are independent contractors, if the booking agent is an employee?

Spencer-Scheurich: I guess theoretically a booking agent could have the employees but not the club. But that would look more like a separate entity that moves around between clubs and does its own marketing etc. Then, the dancers would have to be paid minimum wage by the booking agent but not the club. The booking agent is often used to hide the employment relationship. The booking agent can either be a joint employer of the dancer with the club or s/he can really be an employee and not an independent contractor either.

All of this is the test for whether or not someone is an employee under wage and hour laws. There are slightly different laws for some of the protections.Some are more straightforward.

This is [the] test that I know the best, but we can help people find [other] resources if they want to show that they are entitled to workers comp, etc.

Red:  I wonder about the legislation and what rights it’s possible to protect through legislation, since a lot of [the real protections that we would like] seems to be coming up as unconstitutional or as difficult to enforce–strippers can’t call Occupational Health and Safety Administration [OSHA] since we aren’t employees, for example.

Spencer-Scheurich:  I would disagree with that. You can call OSHA if you think you might be an employee, even if you aren’t paid that way.

Red:  Will they come even if the caller thinks they are an independent contractor?

Spencer-Scheurich: Not as likely. In terms of legislation, the problem with most definitions of “employee” is that it is not like they have a big list of who is an employee. More likely they have a list of who is not an employee. And, really the protections are there. But, someone has to claim them. You are doing just that.

One thing we could legislate around would be to protect [dancers] under sex discrimination [laws], current or prior employment in the adult entertainment industry. That would help protect people from leaks in [their] anonymity.  Maybe we could address dancers’ concerns about the potential effects of losing their anonymity by giving them additional protections under discrimination laws. Wouldn’t it be great if we could pass a law that says that it is illegal to discriminate against someone in hiring or employment because of current or prior employment in the adult entertainment industry?

Bias against someone who has been an exotic dancer is clearly rooted in that person’s sex. It seems to me that a school district wouldn’t hire a former dancer to be a teacher because of some outdated notions of what women should or should not do for employment. Since it is an extension of sex discrimination, maybe BOLI might even be convinced to clarify its regulations on sex discrimination as it has done for pregnancy and sexual harassment.

A protection in discrimination laws addresses anonymity concerns by reducing the fear of being outed, instead of pushing dancers into independent contractor relationships to protect their future employment.

This all might be a lot to win this legislative session. But, if dancers can win a poster in 2015 with very little time to organize, just think about what might be possible in 2017! Dancers have some compelling things to say about changes that they need in the workplace. If they would stand up together and say those things, they could be very powerful.