On June 8, 2016 the 4th Circuit Court of Appeals resurrected a case which Gordon Osaka tried almost 20-years ago. The 4th Circuit ruled that exotic dancers were employees rather than independent contractors. McFeeley v. Jackson St. Entm’t, LLC, 2016 U.S. App. LEXIS 10402, while fact-specific, is part of the U.S. Department of Labor and their state counterparts’ effort to crack down on employers’ efforts to classify certain workers as independent contractors rather than employees. The McFeeley Court applied a six-part “economic realities” test as generally described by the US Department of Labor. The six factors are as follows: (1) the degree of control that the putative employer has over the manner in which the work is performed; (2) the worker’s opportunities for profit or loss dependent on the worker’s managerial skill; (3) the worker’s investment in equipment or material, or her employment of other workers; (4) the degree of skill required for the work; (5) the permanence of the working relationship; and (6) the degree to which the services rendered are an integral part of the putative employer’s business.
As stated by the McFeeley Court, no single factor was dispositive; all six factors were considered in determining the totality of the circumstances. The Court, however, focused on the first factor, holding that the putative employer’s degree of control over the manner in which the dancers performed their work, including scheduling, guidelines, and fees/payments, was critical in the Court’s ruling that the dancers were employees and not independent contractors.
Almost 20 years ago, Gordon Osaka successfully defended a local employer who had been sued by Oregon’s wage and hour enforcement agency, the state agency claiming that the employer’s exotic dancers were employees, not independent contractors. The employer prevailed; the court holding that the dancers were independent contractors, not employees. State ex rel. Roberts v. Acropolis McLoughlin, Inc., 150 Ore. App. 180 (1997).
Employers contact Gordon Osaka to learn if his successful independent contractor business model will work for you.