SAN FRANCISCO — Two former exotic dancers in San Francisco are among the latest to join the growing number of dancers pursuing litigation against clubs for alleged violation of labor laws.

As previously reported by the Northern California Record, Elana Pera and Sarah Murphy claim in a lawsuit filed Jan. 11 in against S.A.W. Entertainment LTD, doing business as Condor Gentlemen's Club, that they were not paid the legal minimum wage as a result of allegedly being misclassified as independent contractors instead of employees. Pera and Murphy are seeking damages and restitution for themselves and other exotic dancers.

The lawsuit was filed in the U.S. District Court for the Northern District of California

Bennet Alsher, an attorney and partner with Ford Harrison, has defended dozens of cases in the last four years similar to the one filed by Pera and Murphy.

“There’s a nationwide push on these cases,” Alsher told the Northern California Record. “Virtually every court that has decided this issue has held that these girls are not independent contractors, but they are employees.”

In 2011, according to documents, the courts handed down a decision in favor of exotic dancers in Georgia who claimed they should be classified as employees and not independent contractors in the case Clincy v. Galardi South Enterprises operating Club Onyx. Alsher said this ruling was a “road map” for cases involving dancers and clubs and defined many of the factors that determine if a worker is an employee or an independent contractor under the Fair Labor Standards Act.

“This is the trend,” Alsher said. “The case law supports the argument that the girls are in fact employees therefore they are entitled to minimum wage, overtime and liquidated damages.”

As a result, more dancers have come forward over the last several years with lawsuits against clubs across the country for alleged misclassification and labor-law violations. One of the highest settlements of nearly $13 million involved several clubs including Spearmint Rhino in the Los Angeles area, according to ClassAction.org.

“It’s driven by the fact that unlike a discrimination case where the plaintiff has to prove motive or intent, which is often very difficult thing for the plaintiffs to prove. In this case, it’s pure statutory violation, and all they have to prove are the various factors that these courts have set out,” Alsher said.

California labor laws distinguish an independent contractor from an employee based on whether or not the worker has the right to control the way the work is conducted. Alsher also noted that under the Fair Labor Standards Act, other factors of determination include who bares the risk of profit and loss. Violations of both California labor laws and the Fair Labor Standards Act are named in the complaint.

According to ClassAction.org, a business may classify a worker as an independent contractor in order to curb expenses such as Social Security and Medicare taxes and unemployment insurances and workers’ compensation insurance. A business is also not bound to provide an independent contractor rights given to employees such as minimum wage and overtime or benefits such as health insurance or sick pay.

“I think if the clubs want to avoid these cases, they’re ultimately going to have to change their business model,” Alsher said. “I don’t think it’s really probably or possible that a court would find them anything but employees.”

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