She take my money, well I’m in need
Yeah she’s a triflin’ friend indeed
Oh she’s a gold digger way over time
That digs on me
An exotic dancer by the stage name “Ms. Behaved” sought to be a class representative in a class action against Fantasy Topless in Colton, California. Beachemin v. Tom L. Theaters, Inc. No. SACV 11-0394-DOC (C.D. Cal. Oct. 6, 2011). Beachemin brought suit against Fantasy Topless in an increasingly-common class action claim against strip clubs — alleging that the club misclassified the dancers as “independent contractors” as opposed to employees. The claim further alleged that as employees, the club failed to pay the dancers minimum wage and forced them to share tips with the management.
Fantasy Topless succeeded in knocking out Beachemin because she was not a proper member of the class she purported to represent.
It is well-settled that Plaintiff must be a member of the class for which she seeks class certification, in order to satisfy both the typicality and adequacy prongs of Federal Rule 23 class certification requirements. “[A] class
representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” (Order at 5)
Ms. Beachemin defined the purported class as follows:
[a]ll individuals, who at any time from the date four years prior to the date the Complaint was originally filed continuing through the present, worked as an exotic dancer at Fantasy Topless in Colton, California, but was designated as an independent contractor and therefore, not paid any minimum wages. (Order at 5-6).
Unfortunately for Ms. Beachemin, the court found that she wasn’t exactly a member of the class that she purported to represent. The Defense showed that Beachemin was never actually hired at the club, she never signed a “Dancer Contract” with the club (as all dancers were required to do), she never had a dancer license from the City of Colton, as all dancers are required to do. See Order at 6-7. The evidence showed that she only tried out to be a dancer, and only performed one dance for approximately three minutes. On the other hand, Beachemin testified that she worked at the club for two days, for a total of less than eight hours. The court was not persuaded and denied the Plaintiff’s motion for class certification.
Despite the Court’s cold reception to Ms. Beachemin’s claim to represent the class, the Court did not seem hostile to the claims themselves.
Plaintiff has accordingly failed to meet her burden of proving that she is an adequate class representative and that she possesses claims typical of the class. There is no indication that Plaintiff ever signed an independent contractor agreement, Plaintiff was never paid by Defendants, and Plaintiff was not forced to share her few dollars in tips with Defendants or any other Fantasy Topless employee. As such, she could not have been misclassified as an independent contractor, like the remainder of the Purported Class, and she suffered no injury from the Defendants’ tip-sharing policy, unlike the remainder of the Purported Class. This Court does not wish to unduly hamper the potential success of the rest of the Purported Class by approving Plaintiff as class representative when she appears not to fall within the her own definition of the Purported Class. The Court expresses no judgment on the likelihood of obtaining class certification on the basis of the above-described claims with a different member of the Purported Class serving as class representative. (Order at 8)
I ain’t sayin’ she a gold digga. But she does sound like someone looking for an easy payday. The judge saw through it, but once the lawyers find a dancer who was a proper class representative, they may find greater fortune. While most strip clubs traditionally classify their dancers as independent contractors, the employee vs. independent contractor analysis is trending against the clubs. See Clincy v. Galardi South Enterprises, Inc., No. 1:09-CV-2082-RWS (N.D. Ga. Sept. 7, 2011); Thompson v. Linda and A, Inc., 779 F. Supp. 2d 139 (D.D.C. 2011).
Strip club owners need to make sure to cover their asses. Just like the protagonist in Golddigger sings “we want prenup,” dance club owners need to have their relationships papered — and papered right. And, if it costs a little more to classify a dancer as an employee vs. an “independent contractor,” they might just need to bite that bullet. The decisions are heavily trending in that direction, and the consequences can be quite expensive.