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Wednesday, September 30, 2015

Adult Club Dancer Is An Employee

An adult club dancer was held to be an employee in a recent NJ workers' compensation decision. The Court relied upon both, the Right to Control Test and the Relative Nature of the Work Test in making its determination of employment status.

The Honorable E. Elaine Voyles, Judge of Compensation, held:

"Although the parties were unable to enter into any stipulations, many of the relevant facts are not disputed. The Petitioner was employed as a dancer at the time of her accident. The Respondent, is an adult club wherein Petitioner, and other dancers, entertained patrons. Both parties agreed that Petitioner was required to fill out an application (P1) and audition for her position. Both parties agreed that Petitioner's schedule changed on a weekly basis and that the dancers could set their own schedule. There was further agreement that Petitioner was not paid a salary and that she worked for tips. According to the testimony of both sides, Petitioner did not have to share her tips except for when she performed a "couch dance". The cost for a "couch dance" was $20 of which $15 was given to the dancer and five dollars was retained by the Respondent.
"Petitioner testified that once the weekly schedule was set the dancers were required to appear at their designated times. She further testified that she could not leave the facility between dances and that she was required to finish out her shift.
"In assessing the degree of Respondent's right to exercise control over the Petitioner, the Court must examine the arrangements made between the Petitioner and Respondent.  Despite the fact that Petitioner set her own hours I find the Respondent exercised a substantial degree of control over Petitioner.  Petitioner was required to converse with patrons and perform both pole and couch dances. Petitioner was not free to come and go as she pleased. Once she arrived for her shift she was required to stay until that shift was completed. Dancers were chastised if they were found not to be entertaining the patrons.
"The court further finds that Petitioner was economically dependent upon the Respondent. Petitioner testified that she worked an average of five shifts per week and that the shifts averaged 8- 12 hours in duration. Additionally, Petitioner testified that her only source of income at the time of her assault was the money she earned working for the Respondent. As stated previously the Court found the testimony of the petitioner to be credible.
Decided July 14, 2014 - Posted by NJ DWC September 29, 2015