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Waitress / Dancer, no payroll, tips only, need to know the law

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solrac149

Guest
California

My girlfriend got a "job" 3 weeks ago at a bikini bar. (It's a bar with pool tables, and a stage for girls to dance on, no nudity.) She waitresses and dances.

She was accepted and started on a Tuesday. She was told she would have to work on tips only for three weeks, then she would be put on payroll, which is minimum wage. (Plus tips)

For the past three weeks, she's been working very hard. 7 hours a night, until 2 am, and she even stayed late to clean up the bar and do NON-TIPPED work. This is because she would start on Payroll on Monday, March 8. On a couple of nights she only got $5 or $10 in tips, and she still had to pay the bar the $5 stage fee, plus 10% to the bouncer, DJ, and bartender (each).

So she was basically working for 3 weeks, including doing non-tipped work, and had to pay $5 stage fees every night, and 30% tips.

However today she was told by one of the managers that there was NO PLAN TO PUT HER ON PAYROLL. EVER. Many girls apparently dance and waitress there for tips only, and never get on payroll. The person who took her application originally, and told her about payroll, was (I guess) not the manager and just some other employee. So it was misinformation. (This is what the manager said.)

Here's my questions:
1) Is it legal, in California, for someone to work as a dancer, on tips alone?

2) Is it legal for management to force such a worker to stay until closing and clean up the bar? (For no money??!!) They wouldn't let her leave many nights, even if there were no customers! And she stayed because she thought she was getting on payroll.

3) Is it legal to take down a job application, with ALL her info, including social security number, when there was NEVER a real position in the first place?

4) Is it legal to make the tips-only worker give up $5 a night plus 30% back to the bar, even though they are not on payroll?

If there's ANYTHING illegal going on here, I want those guys shut down, or at least settle with her and pay her something.

She is STRUGGLING to make ends meet, and was so happy to get this job. She was forced to stay until 2 am on several nights and made only $5 or $10 bucks! (And still had to pay the fees!) She would work 12 hours a day sometimes. (She has another part time job.) And she put in all that time and effort, and even bought some outfits to dance in, because they promised her a job with payroll. Or at least one person who works there did.

Is there anything I can do to make this right? I want justice. At the very least, I want them to pay her for 70 hours at minimum wage. (About $472.50)

Thanks for all your help,
-Carlos-
 


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Ramoth

Guest
First, it is illegal to require someone to work for tips only. They must be paid at least the State minimum (which is higher in CA than the federal). Anything over 8 hours a day in CA MUST be paid at time-and-a-half. Anything over 40 hours a week MUST be paid at time-and-a-half. The stage fees and other costs are legal as long as her pay does not drop below minimum wage as a result. Your friend needs to file a complaint with the state Department of Labor.
 
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solrac149

Guest
Thanks for the reply. I really do appreciate it. I'm really happy to hear that it is illegal. I will research it with the state department of labor.

Is it legal to have someone work for 3 weeks, for tips only? And then put them on payroll? Even that is illegal then, I suppose?

Thanks again!!
:eek:
 
R

Ramoth

Guest
Yes. The minute she started work she had to be paid at a rate of at least minimum wage.
 

n_and

Member
Hate to contradict anyone, but, actually, dancers DO work on tips only, and it is perfectly legal. They pay to work in whichever establishment of their choosing, as a subcontractor who is required to fill out a 10-99 at the end of the year. The club never hired your friend, she HAD to have signed a form stating she was self-employed. Dancers in strip clubs pay to work there, not the other way around. This club, unless she did not sign that form, did nothing illegal. That's the nudey business.
 

divgradcurl

Senior Member
"Hate to contradict anyone, but, actually, dancers DO work on tips only, and it is perfectly legal. They pay to work in whichever establishment of their choosing, as a subcontractor who is required to fill out a 10-99 at the end of the year. The club never hired your friend, she HAD to have signed a form stating she was self-employed. Dancers in strip clubs pay to work there, not the other way around. This club, unless she did not sign that form, did nothing illegal. That's the nudey business."

Just because that's the way things usually work doesn't necessarily mean that it is legal. In CA. workers are presumed to be employees regardless of what tax forms or other things suggest otherwise -- the employer has the burden of proving that the worker actually meets CA's definition for a subcontractor. There are a number of factors that need to be considered to determine if someone is in fact an independent contractor, the most important factor being control -- if the employer can exercise complete control over the way in which a worker completes a job -- how, when and where they do the work -- then the worker is an employee, period, and CA law requires that they be paid minimum wage.

In other states the law may be (and probably is) different, but in CA, you have to meet certain standards to be considered an independent contractor and therefore exempt from employment laws -- simply agreeing that this is the case is insufficient.

She should talk with the labor commissioner immediately. You can go to the California Department of Labor Standards Enforcement web page to get the contact info for your local office.
 
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Ramoth

Guest
Actually, what divgradcurl describes is Federal law. California may have state-specific definitions for IC's, but the basic law is Federal. I would still suggest a call to the State DOL, because even if dancers are considered independant contractors, waitresses and bar help are not.
 

n_and

Member
You are absolutely right about state/fed law differences...thank you for clearing that up. I didn't realize she is a waitress as well, I was under the assumption she stayed just to help out - rereading, I see I was wrong. Either way, if the club is doing illegal things, I hope your friend is compensated. Just find out if she signed that self-employment/independant contractor form.
 
S

solrac149

Guest
divgradcurl said:
Just because that's the way things usually work doesn't necessarily mean that it is legal. In CA. workers are presumed to be employees regardless of what tax forms or other things suggest otherwise -- the employer has the burden of proving that the worker actually meets CA's definition for a subcontractor. There are a number of factors that need to be considered to determine if someone is in fact an independent contractor, the most important factor being control -- if the employer can exercise complete control over the way in which a worker completes a job -- how, when and where they do the work -- then the worker is an employee, period, and CA law requires that they be paid minimum wage.

In other states the law may be (and probably is) different, but in CA, you have to meet certain standards to be considered an independent contractor and therefore exempt from employment laws -- simply agreeing that this is the case is insufficient.

She should talk with the labor commissioner immediately. You can go to the California Department of Labor Standards Enforcement web page to get the contact info for your local office.
Yes, I know definitely, that she did not sign an independent contractor agreement. All she filled out was a poor quality application form, which asked for her social security number, address, name, etc. It did not even ask about previous employement. Is it legal to have a dancer / waitress fill this out, if there is even no payroll position involved???

Anyway, if they do not offer her the position on payroll by tomorrow, we are contacting the California DLSE. I'll paste a bunch of stuff I found here now:

stuff found on DOL and other sites said:
CALIFORNIA DOL
http://www.dir.ca.gov/DLSE/dlse.html

Director
Department of Industrial Relations
455 Golden Gate Ave.,
10th Floor
San Francisco, CA 94102
PH: 415-703-5050
Fax: 415-703-5059

State Labor Commissioner
Division of Labor Standards Enforcement
Department of Industrial Relations
455 Golden Gate Ave.,
9th Floor
San Francisco, CA 94102
PH: 415-703-4810
Fax: 415-703-4807
Internet: www.dir.ca.gov

1-866-4-USWAGE

Filing a claim: policies: http://www.dir.ca.gov/dlse/Policies.htm

http://www.pbs.org/weblab/workingstiff/punchout/17-2.html
'voluntary' unpaid overtime" is against the law.

Department of Labor, US
http://www.dol.gov/

Department of Labor, US
http://www.dol.gov/dol/topic/wages/wagestips.htm

Department of Labor, US
http://www.dol.gov/esa/regs/compliance/whd/whdfs15.htm
Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.

CALIFORNIA HAS NO TIP CREDIT (DOL)
http://www.dol.gov/esa/programs/whd/state/tipped.htm#foot1

FROM CALIFORNIA LABOR CODE: Penalty for non-payment
Downloaded in PDF from: http://www.dir.ca.gov/dlse/DLSE-Publications.htm
§ 210. Penalty for failure to pay; Recovery; Disposition of money recovered In addition to, and entirely independent and apart from, any other penalty provided in this article, every person who fails to pay the wages of each employee as provided in Sections 204, 204b, 204.1, 204.2, 205, 205.5, and 1197.5, shall be subject to a civil penalty as follows: (a) For any initial violation, fifty dollars ($50) for each failure to pay each employee. (b) For each subsequent violation, or any willful or intentional violation, one hundred dollars ($100) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld. The penalty shall be recovered by the Labor Commissioner as part of a hearing held to recover unpaid wages and penalties pursuant to this chapter or in an independent civil action. The action shall be brought in the name of the people of the State of California and the Labor Commissioner and the attorneys thereof may proceed and act for and on behalf of the people in bringing these actions. All money recovered therein shall be paid into the State Treasury to the credit of the General Fund.

MINIMUM WAGE POSTER
http://www.dir.ca.gov/dlse/WorkplacePostings.htm

212 million dollars in recovered wages in 2003
http://www.dol.gov/esa/whd/statistics/200318.htm
P.S. ... it's not parsing the BB code here????
 
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Ramoth

Guest
Sweetie, your friend needs to call the DOL today because she should have been paid from the very beginning!
 
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sagesong

Guest
this is just the tip...no pun intended

This is just the tip of the iceberg when it comes to the injustice of the exotic dancing biz. I have done it for nine years in Indianapolis. We are not payed anything. The club I have been at for over two years used to pay 2.13 per hour, but then stopped all payroll for dancers. Even when they did have girls on payroll, they took out almost all the wages for "locker rental fees". We must give the bar $4 at the beginning of the night just to work. We are to be there by 8:15 pm and are required to stay until after 3 am. We must go up to the stage when we are called, usually 5-6 times a night. The club tells us how much we are to charge for a dance. They tell us what to wear, and we are often required to purchase a certain outfit so that we all match. We are not allowed to bring in any food to eat during a break, we have to order from the limited bar menu. We have a dressing room, but are not allowed to have chairs or stools back there because it would encourage us to sit in the back for too long, so when we change or take a break we must sit on the cold hard floor. If we eat at work we must do it on the floor back there or at a table with customers. If we are hurt at work for any reason, for instance, if someone spills a drink on the stage and nobody wipes it up before we go up there, we are not entitled to anything and pay our own medical bills. If we get sick at work we are not allowed to leave, but are told we may miss our set and lay down on the floor in the back. If we ever complain about anything, we are told that if we don't like it, we can go work somewhere else. If we have problems with a customer, we are usually told to simply ignore that person, even if that person has violated us, threatened us, or stolen something. We are not given any security in the parking lot after hours. No one walks us out. If we are caught chewing gum, wearing boots, or putting our shoes on a chair we are fined. Drinking alcohol is encouraged to help bar sales, but if a girl drinks too much, she is suspended for a week. At the end of every night we give the DJ 10% and the bartender 5% of everything we made. In this way, the club owners do not have to pay anybody. The dancers and waitresses pay the Dj and bartenders out of their tips. If there are too many dancers or too few customers, we are still required to tip a minimum of $10 and $5, even if that is way more than 10% and 5% of what we made. This means that if a dancer makes $50 all night, which is very likely on a very slow night, she will be going home with only $31 of it after paying her tip out. Likewise, if she made $300, she will be going home with $251. The management will not sign anything that is proof of employment or income, which makes it difficult for a dancer to get an apartment, credit, loans, or any government benefits. They tell us that we are independent contractors and they don't have to pay us, and most girls never question it. Sadly, nobody else does either, I am assuming because not too many people are sympathetic to the plights of exotic dancers. It is a legal profession, but the laws are very hazy and ill-enforced almost everywhere you go. I honestly don't know how much of this is actually illegal if any of it is, but I do know it is unfair.
 
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solrac149

Guest
That is extreme!!

Sagesong,

You and your fellow dancers could easily shut down the bar that you work at, if you just came together and filed a lawsuit.

The things that you described go WAY beyond what happened out here in California with my girlfriend.

The bar she worked at out here is regarded as the worst of the worst. (We didn't know that at the time.)

Let's compare:
Your club: No pay for dancers. (When they were paid, their pay was illegally taken for "locker room fees". - Illegal if the fees went below the minimum wage for tipped workers in your state.)

Our club: No pay for dancers, no independent contractor agreement

- This is the basis of the story and what will allow my girlfriend to collect winnings against them. The key is they never gave her an independent contractor agreement. If you didn't get one of these either, you guys have already won your battle, at least for wages!!

Your club: Takes $4 stage fee, 15% tips for DJ / bartender, strictly enforced

Our club: Takes $5 stage fee, 30% tips for DJ / bartender / security

- This is also illegal if the fees make you go below the minimum wage for a tipped worker in your state. By the way, in California tipped workers get the same as non-tipped workers: $6.75 per hour. At least at our club they were not strict about it. If a girl made $300 she could give out $40 and get away with it. Or if a girl only made $50 she could give out $6 and get away with it.

Your club: required to stay until closing
Our club: required to stay until closing

- Also illegal for an independent contractor. An IC can come and go as they please. Waitressing and cleaning the bar would also be illegal, unles you make the minimum wage.

Your club: Go up to the stage 5 - 6 times per night (??)
Our club: Go up to the stage 2 - 3 times per hour

- This is part of the job honey... sorry nothing wrong with that. At our club a set would be about 6 minutes (2 songs). There is usually 3 - 4 girls a night so you can only go up 2 - 3 times per hour. Wait, do you mean that you would not get to go up to the stage enough? As in, they were not letting you make as much as possible? Now that would suck.

Your club: All girls must wear matching outfits
Our club: Wear whatever you like as long as the thong is not too small / invisible.

- This might be OK if the club has a theme, then you gotta wear their theme right? Not illegal, but it would have to be in the contract! And if you have to purchase your own outfit, that's illegal if you are not an I.C.!!!

Your club: No medical benefits
Our club: Same

- This would be legal if you were an I.C.

Your club: No proof of income or employment
Our club: Same

- This goes back to requiring an I.C. agreement or its illegal

Now so far, our club and your club have similar illegal activity going on. But after this point, in your message, your club is INSANE. EXTREMELY ILLEGAL! RIDICULOUS!! Behold:

Your club: Tells you how much to charge for a [lap] dance
Our club: Minimum $15 for lap dance, but whatever the guy pays the girl is hers to keep.

Your club: Forces you to eat from bar menu
Our club: Eat whatever you bring or buy who cares

Your club: Dressing room with no chairs
Our club: Small dressing room with chairs at least!

Your club: If you're sick, you must stay, and lay down on the floor??
Our club: They would let you go home

Your club: Customers violate you, steal from you, security does nothing
Our club: A customer does ANYTHING wrong, they are thrown out immediately by this huge dude.

Your club: No security after hours. No one walks you out
Our club: The huge dude walks each girl out to their car

Your club: Fines you for chewing gum??
Our club: I don't know...

- Maybe that's a law in Indianapolis??

Your club: Drunk girl suspended for a week
Our club: Probably a warning only... if happens too much she would be fired probably

Now this is horrible:
Your club could be really SHUT DOWN for endangering the lives of girls and not controlling customers. If a girl got raped or kidnapped from the parking lot I'm sure someone there would go to jail.

This is what you have to do. Get yourself and 3 or 4 of your dancer friends to submit a claim to your state's department of labor.

The club will have to pay you the minimum wage for all the hours you ever worked, and they will probably be fined for each girl they did not handle correctly.

It may take months for your hearing to come up, but you'll get one.

Look at my post above this one... I have all the information there! You can win this one so easily!

Beyond that you can sue the club for allowing them to endanger your lives and not control customers.
 
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sagesong

Guest
exotic dancers....

I am really not too interested in suing anyone because I don't want to lose my job. I realize they could not fire me for taking legal action, but they can easily come up with any other reason they want and it would be my word against theirs. They would probably also blackball me from working at other clubs in the city, unofficially of course. I would like to know what should be the relationship between us and them if we are indeed independent contractors. There has been to date no formal agreement. They have simply said that they don't have to pay us because we are independent contractors. My questions arise from the other things which would suggest an employee/employer relationship. These being the forced tip outs, mandatory costumes, forced schedule, and strict enforcement of what we can charge. I also find the lack of an adequate break area, lack of security, lack of grievance procedures, and disregard for a sick or injured employee to be insulting, if not illegal. If we are independent contractors, we should be able to chose our own clothes, our own hours, our own prices and have the option to leave when there are very few customers. As far as how often we are required to be onstage, I don't have a problem with it, I only mentioned it to illustrate that going onstage is the only thing we are really required to do during our shift. We are not told when and who we have to dance for when we are not onstage. We are however encouraged to mingle around the room and perform small dollar dances in between sets, and god help you if you charge more than a dollar. This I do find to be in violation of the independent contractor status, or at least I believe it might be. My understanding of the independent contractor relationship is that they hire us to do a job, pay us for the job, and have no control over the means by which the job is done. By this definition, we would come to work when we want , be payed for the time we are there, be free to set our own schedule, chose our own clothes and shoes, and set our own prices, and so long as the patrons are being entertained, there would be no issue. I also am pretty sure that if a manager has you fill out an application, uses the words hire and fire, and has control over you while you are there, you are an employee. The resentment over the unfair treatment of dancers has built up over nine years, so please forgive me for the soap box I stand on. I only wish that the profession could be a more professional environment, meaning better regulated with some standards of practice. I doubt that it ever will be. If your friend does wish to further explore dancing as a career, and I strongly recommend that she do some serious soul searching before she does this, she should educate herself about the business. There is a wonderful website that provides much information and connections through a forum for exotic dancers. It is a great place to vent and get support. The site is Stripperweb.com. She can also find info on just about any decent club anywhere. Good luck to her and I hope she finds a better situation. It can be a good opportunity if she has the right motivation and utilizes the business as a stepping stone to better things. For every stripper in college during the day, there are three that sleep all day and party all night. The glamour wears off quickly and beauty fades, so she needs to have a plan before the years pass by.
 
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solrac149

Guest
Sagesong, like I said, you are right about EVERYTHING about independent contracting.

If you signed a REGULAR employment application, and are forced to stay certain hours, and do work such as cleaning or waitressing, then you are NOT AN INDEPENDENT CONTRACTOR. You should seriously SUE THEM! I don't think you would be "blackballed". You might be out of a job for a little while, but you would win in the end. If you have no other type of work you can do, and you can't risk losing your job, then YOU ARE THEIR SLAVE. That really sucks. Slavery was abolished in 1860. These are illegal violations of the labor codes.

The other things you mentioned are not labor code violations... they are PURELY illegal. (No security, no protection against customers, making sick dancers lay on the floor, etc.)

Do you want to keep living like this?

The clubs down here in CA are much better than the hell you describe. Also, my girlfriend only plans on doing it for 2 - 3 years so she can climb out of the financial misery she is in, and get her fashion design / clothing business started.

Good luck to you! Don't forget that you can SCREW them in court... especially if you file a class action lawsuit with several of your dancer friends!
 

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