United States District Court, M.D. Georgia, Athens Division
CHRISTIE BURRELL, individually and on behalf of all others similarly situated, Plaintiff,
TOPPERS INTERNATIONAL, INC., DARNELL LEWIS GARDNER, and SANDRA GARDNER, Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
During the pretrial conference in this matter, the Court
denied Plaintiffs' partial summary judgment motion in an
oral ruling from the bench. Min. Order, Apr. 4, 2017, ECF No.
78. Plaintiffs filed a motion for reconsideration. The motion
(ECF No. 80) is granted to the extent set forth in this
Plaintiffs Are Employees, Not Independent
Toppers International, Inc. is an adult night club.
Plaintiffs are entertainers at the club, and they contend
that Toppers improperly classified them as independent
contractors and did not pay them minimum wage as required by
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201-219. It is undisputed that Toppers does not
pay any wages to entertainers, and it does not include
entertainers in payroll. Pretrial Order Ex. A, Material
Undisputed Facts ¶ 7, ECF No. 79-1. Instead,
entertainers rely solely on tips from customers to earn money
for their work at Toppers. Id. ¶ 8. Plaintiffs
argue that the undisputed facts demonstrate that they are
employees within the meaning of the FLSA, not independent
contractors. The Court agrees.
determine whether an individual falls into the category of
covered ‘employee' or exempted ‘independent
contractor, ' courts look to the ‘economic
reality' of the relationship between the alleged employee
and alleged employer and whether that relationship
demonstrates dependence.” Scantland v. Jeffry
Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013).
“This inquiry is not governed by the ‘label'
put on the relationship by the parties or the contract
controlling that relationship, but rather focuses on whether
‘the work done, in its essence, follows the usual path
of an employee.'” Id. (quoting
Rutherford Food Corp. v. McComb, 331 U.S. 722, 729
courts consider six main factors in determining the economic
reality of the parties, and the Court will address each
factor in turn.
Nature and Degree of Control
first factor is “the nature and degree of the alleged
employer's control as to the manner in which the work is
to be performed.” Id. at 1312. It is
undisputed that Toppers exercised significant control over
the manner in which the entertainers' work was performed.
Toppers set the entertainers' schedules and would not
permit entertainers to work busy shifts unless they also
worked slower shifts. Material Undisputed Facts ¶¶
38-41. Entertainers were fined if they arrived late, left
early, missed a shift, or missed a stage call. Id.
¶¶ 42-43, 55. Entertainers had to pay a mandatory
“house fee” at the beginning of each shift, a
mandatory “tip out” at the end of each shift, and
various fees to other individuals who worked at Toppers.
Id. ¶¶ 35, 37, 61-63. Toppers set minimum
prices for table dances and lap dances, had rules on how
entertainers danced on the main stage, and required
entertainers to share tips with other entertainers who shared
the main stage with them. Id. ¶¶ 5, 56-57,
59. Toppers had rules on entertainers' apparel, hair, and
nails. Id. ¶¶ 51-52. Toppers also had
written policies and procedures, and entertainers could be
disciplined-including terminated-for violating those policies
and procedures. Id. ¶¶ 66, 68-69. Based on
all of these undisputed facts, Toppers exercised significant
control over the work of its entertainers. This factor weighs
in favor of finding that the entertainers are employees.
Opportunity for Profit or Loss
second factor is “the alleged employee's
opportunity for profit or loss depending upon [her]
managerial skill.” Scantland, 721 F.3d at
1312. Although the entertainers could negotiate the rate
customers paid them for dances (above the minimum rate set by
Toppers), they had limited opportunities to increase their
profit. And, other than the mandatory fees they had to pay to
dance at Toppers, the entertainers had no risk of loss. In
contrast, Toppers had extensive control over the
entertainers' opportunity for profit because Toppers
controlled the location, facilities, marketing, and inventory
of beverages for the club. And Toppers had a much bigger risk
of loss than the entertainers because Toppers was responsible
for all rents, utilities, maintenance, insurance, and
advertising for the club. Thus, this factor weighs in favor
of finding that the entertainers are economically dependent
on Toppers and are therefore its employees.
Investment in Equipment
third factor is “the alleged employee's investment
in equipment or materials required for his task, or his
employment of workers.” Scantland, 721 F.3d at
1312. At Toppers, entertainers are responsible only for their
own makeup, hair, and apparel. Material Undisputed Facts
¶ 77. Toppers was responsible for all other investments
necessary for the entertainers to do their work, including
the facility, stage, marketing, bar, and security. This
factor weighs in favor of finding that the entertainers are
economically dependent on Toppers and are therefore its
fourth factor is “whether the service rendered requires
a special skill.” Scantland, 721 F.3d at 1312.
It is undisputed that no prior experience or formal training
is required to work as an entertainer at Toppers. Material
Undisputed Facts ¶¶ 78-79. Rather, it appears that
the only criteria on which entertainers are selected are
physical attractiveness ...