People can have different rights at work based on their employment status, in other words whether they are an independent contractor or an employee. For exotic dancers this can, unfortunately, be hard to figure out. This is because club operators classify and treat dancers as independent contractors even though some clubs subject dancers to employee-like obligations such as performing one or some stage show(s) or working certain shifts.

It is important to know the difference so that you know what rights and benefits you might have.

What is an independent contractor?

An independent contractor is someone who runs their own business. This means that they can make money (a profit) or risk losing their own money at work.

Independent contractors are self-employed and may have control over where, when and how the work will be done. They can control which services they provide and can provide services to multiple clients, or work in multiple workplaces, at the same time.

Independent contractors are not employees and so do not have the same rights and protections as employees. This means independent contractors are not protected by the Employment Standards Act. This act governs the rights of all employees in Ontario.

Unlike employees, independent contractors are not entitled to:

• Minimum wage
• Overtime pay
• Public holidays
• Vacation with pay
• Benefit packages
• Canada Pension Plan
• Employment Insurance (EI)
• Workers’ Compensation
• Medical benefits: medical, dental and disability insurance

However, independent contractors as well as employees are covered by other provincial protections including the Ontario Health and Safety Act (OHSA) and the Ontario Human Rights Code (OHRC). In short, the OHRC prohibits discrimination and harassment at the workplace, and the OHSA states that workplaces must be free from safety hazards and violence.

Are exotic dancers independent contractors or employees?

There is no set formula to figure out if someone is an employee or an independent contractor. This will depend on the relationship between the worker and the business.

It’s important to know that the government will not just look at the words of a contract when determining the relationship between the worker and the place of work. This means that even if you signed a contract that says you are an independent contractor, the actual relationship can show that it is an employer-employee relationship.

Some factors that the government will look at to determine the relationship include:

• Control test: looks at who has the right to decide the time, place, and way that the work is done. If a person has control over these factors, it points towards being an independent contractor. For example: If you freelance (i.e., drop in to work without having to do a stage show unless you choose to do so), you decide when you work.
• Ownership of tools: looks at whether the individual had to buy the equipment to do the job. For example, a self-employed painter has to buy different types of paint, brushes and other equipment to be able to paint a house. Similarly, dancers are expected to buy their own outfits. If a person had to buy their personal tools, it is more likely that they are an independent contractor.
• Chance of making a profit or risking loss: looks at whether there is a chance of making a profit or risking a loss of your own money, then this will point towards being an independent contractor. At strip clubs, since dancers make money off of clients, they could make a lot of money or no money on any given night.
• Integration: looks at how much a person is involved in the organization. The more a person is involved with the organization, the more likely that they are an employee. Since dancers can work at multiple clubs and change clubs easily, they would probably not be considered employees in this respect.

All of these factors may be looked at together to decide if a worker is an employee or independent contractor. This means that even if you are a house girl – you work a schedule of full shifts (for which the club may pay you an hourly rate and have you sign a receipt as an independent contractor) – a way in which you may fit into the definition of an employee, the other factors may cancel this out.

In Ontario, a 1981 case involving an Ottawa strip club called the Algonquin Tavern is still used as legal precedent in deciding whether workers are employees or independent contractors. In CABE v. Algonquin Tavern (1981) dancers argued that they were employees because management exercised control over their working conditions, but the Labour Board ultimately agreed with the tavern’s argument that dancers were not an integral part of its business – which was to sell alcohol – and also emphasized that dancers had the freedom to work at multiple establishments.

Since that time, dancers in Ontario have usually been classified as independent contractors by club operators. But nowadays there are some factors that can point towards an employer-employee relationship, including:

• Being subject to management rules (little control over how work is done)
  • Strict schedules that state when they must be at work
  • Fines for being late or not complying with house rules
  • Performers must dance to songs that have been approved by the club and for a certain amount of time
  • Strict personal grooming requirements
• Requirements to buy expensive costumes
• Pressure to partake in cosmetic surgery, tanning, and putting on more make up, and be thin
• Are not able to carry out their work if club operators do not provide a stage with a brass pole, a DJ, a sound and light equipment, security staff and liquor license and supplies

Even if a contract or an employer says that you are an independent contractor, what matters is the relationship between the work and you. A contract might not decide your rights. Consider whether your employer supervises your work, decides your shifts or decides where you work.

So… what if you think you are wrongly classified as an independent contractor?

If you think you have been wrongly classified as an independent contractor, you may have a basis on which to make a claim for your employer to pay you for work that has been done in the past, including vacation pay, public holiday, overtime pay, termination and severance pay. But the responsibility falls on you to prove that you are an employee and not an independent contractor.

At the time of CABE v. Algonquin Tavern (1981), strip bars were relatively new, featuring periodic performances instead of the continual stage shows of today’s strip clubs. And this is what strippers in class action suits in the US have argued: that they are central to clubs’ business success. In a 2014 Nevada Supreme Court decision on a class action suit brought by strippers that began in 2009, the judges declared that, because the defendant, Sapphire Gentlemen’s Club, “bills itself as the “World’s Largest Strip Club,” and not, say, a sports bar or night club, we are confident that the women strip-dancing there are useful and indeed necessary to its operation” (Terry v Sapphire, 2014, p. 19-20), and therefore are employees who should be paid minimum wage.

Similarly, a group of New York City dancers were awarded $10.8 million in back wages by a federal judge who ruled that their club could not treat them as independent contractors and had to pay them minimum wage. In another US case, strippers who worked at Spearmint Rhino chain locations in California, Nevada, Florida, Texas, Idaho and Kentucky were awarded a $13 million dollar settlement in 2012.

While there has not yet been a class action suit like this in Canada, judges may consider these cases if dancers do decide to bring a suit. To file a class action suit in Canada, you must file a statement of claim, and then a judge has to certify the claim, in other words decide if the action can go forward. Some of the factors they consider to make this decision include: if there is an identifiable class of persons (i.e., a group of two or more) affected by the issues; the person or people coming forward have a workable plan for the suit and their interests do not conflict with those of other group members; the group members are affected by common issues. You would also need to find a lawyer willing to represent the group of people. In a class action suit, the lawyer represents all the members of the affected class/group, who would then split the settlement money if the case is successful.

For more information about class action suits and how to file them, see https://www.ontario.ca/laws/statute/92c06#BK4

However, there are risks to consider with class action suits, including that strip club operators may fire dancers whom they discover are involved in a suit. For this reason, in US class actions suits it has often been dancers who no longer work at the club in question. Additionally, a class action suit only applies to the defendant – that is, the particular club or chain named in the suit. This means that you cannot mount one class action suit against, for example, all the clubs in Toronto because there are many different owners – but this may be a reason to select a chain or sister clubs. Finally, dancers and researchers in the US have found that in some instances, when dancers win a suit the club finds new ways of exploiting workers, including taking a (higher) percent of lap dance money or other tips. Also, winning a class action suit will mean that dancers will be considered employees, meaning they will have less flexible schedules than freelancers, as noted above.

What else can you do to assert your rights?

There are other actions you can take short of filing a class action suit against your club.

You can opt to pay into optional workers’ compensation insurance in order to be eligible for workers’ compensation as a freelance worker in order to be covered under the Workers’ Compensation Act. When someone who is registered for and pays into optional insurance gets hurt at work, the Workplace Safety and Insurance Board (WSIB) reviews the situation to decide whether the injury was actually work-related; if the WSIB does judge the injury to be work-related, they could pay up to more than $80,000 to the worker. It is important to note that they WSIB calculates the payout based on whichever is the lower amount between your reported (i.e., declared for taxes) and actual (i.e., cash) earnings.

You can also file complaints against your workplace under the OHRC (e.g., for sexual harassment) or OHSA (see above).

References

Bouclin, S. (2009). Bad girls like good contracts: Ontario erotic dancers’ collective resistance. In E. Faulkner & G. MacDonald (Eds.), Victim no more: Women’s resistance to law, culture and power (pp. 46-60). Winnipeg: Fernwood Publishing.

CBS News (2014). New York City strippers win $10 million in back wages. https://www.cbsnews.com/news/new-york-city-strippers-win-10-million-in-back-wages/

Couto, A. (2006). Clothing exotic dancers with collective bargaining rights. Ottawa Law Review, 38(1), 37-66.

Gall, G. (2016). Sex worker unionization: Global developments, challenges and possibilities. New York: Palgrave MacMillan.

Kandel, J. (2012). Strippers win $13 million settlement in wage dispute. https://www.nbclosangeles.com/news/local/Strippers-Win-13-Million-Settlement-Wages-Dispute-179336841.html

Maticka-Tyndale, E. (2004). Exotic dancing in Ontario: Health and safety. Windsor: STAR (Sex Trade Advocacy and Research).

Terry v Sapphire (2014) https://law.justia.com/cases/nevada/supreme-court/2014/59214.html