Safety and OSHA News

Is injured stripper employee or contractor? Workers’ comp hangs in balance

Workers’ comp cases often hinge on whether the injured person was considered an employee or contractor. Courts get these cases all the time involving professions like roofing and other construction trades. But recently, a state appeals court had a more exotic case to decide.

Specifically, a case about an exotic dancer, or as the Court of Appeals of South Carolina noted, “what most people would call being a stripper.”

LeAndra Lewis worked as a dancer at strip clubs.

On June 23, 2008, she was shot while dancing at the Boom Boom Room in Columbia, SC. A stray bullet from an altercation inside the club struck her. She was only 19 and suffered serious injuries to her intestines, liver, pancreas, kidney and uterus. Surgeons removed one kidney and said the damage to her uterus may prevent her from having children.

The scars from the injury left her unemployable as a stripper.

Lewis applied for workers’ comp benefits. A workers’ comp commissioner denied her claim, finding she wasn’t an employee. An appellate panel agreed. Lewis took her case to a state appeals court.

4-part test

South Carolina applies a four-part test to determine whether someone is either an employee or contractor for purposes of workers’ comp coverage:

  1. Exercise of control. Lewis said the club told her when to dance, selected the music, set the order in which the dancers performed, told her to try to get V.I.P. dances and set the rate for the V.I.P. dances. However, the judges found the club didn’t tell her how to dance. “While the dance is going on, she has complete discretion,” the judges noted.
  2. Furnishing of equipment. Lewis noted the club provided the stage, poles, chairs and couches for the dancing. But the court found “the club did nothing more than allow her onto its premises.”
  3. Method of payment. The club didn’t pay Lewis. She had to pay the club a fee ($70 a night) to dance there, and then she kept a portion of the tips she made.
  4. Right to fire. Lewis said there were several reasons the club would fire strippers for disobeying the club’s rules. However, the judges found “the employment ‘relationship’ Lewis claims existed was never contemplated to last more than one night in the club.”

In the eyes of the judges, Lewis failed on all four parts of the employee-contractor test. It ruled she was a contractor and therefore should not be eligible for workers’ comp benefits.

One judge of the three-member panel dissented. The judge noted that other states, including Oklahoma and Virginia, had previously found strippers to be employees. The dissenter noted Lewis had to sign a form agreeing to comply with club rules; the club did provide all of the necessary equipment for the dancers to perform; they could not choose what order they performed on stage; the club set fees for dances; and the club fired dancers if they left before a certain time or danced out of turn.

What do you think? Was Lewis an employee or contractor? Should she get workers’ comp? Let us know what you think in the comments below.

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Comments

  1. She was an employee. With #1 “The club didn’t tell her how to dance” but what they didn’t touch on was that the club did pick the music which meant they controlled the time she had to dance or be fired.
    With #2 “the club did nothing more than to allow her on the premises” then how did the arrangement for payment and all the things mentioned in #1 that the club controlled come into play if she wasn’t hired by the club?
    #3 states the dancer pay the club a $70. fee and only gets a portion of the tips for payment. I’m sure it was the club who decided on how much of the tips she would get for payment.
    #4 states employment was only for one night. It doesn’t matter how long your employed, WC benefits are for anyone injured while preforming their job duties while on the clock at work. The article states she was shot while dancing.

  2. Agree with Willy

  3. I agree with Willy here for the most part. It looks as if the commisioner and panel were really stretching logic to reach those conclusions. My guess is that they are trying to avoid setting a precedent for strippers to file on the clubs. Not trying to be funny but I can imagine where a stripper wearing high heels might trip and have an ankle injury or muscle strains while using the pole.

    And no, I don’t know a lot about strippers. The reality is that I haven’t been to one of those places in over 20 years. But I was once a young Marine and I can’t imagine that they’ve changed much in those years.

  4. She was not paid by the establishment, she was paid by the customers in attendance, therefore she was a contractor, not an employee. If she were an employee, then the establishment should have been withholding from her “wages” for state and federal income taxes. This is an example of why our system is broke, people trying to benefit from the system without contributing anything to it. She was working on a cash basis, which can only be done if she is self employed, and contracting out her services.

  5. kamal Kumar Nirala says:

    Anyone injured while performing their job, while on the clock at work , whether he or she & employee or contractor person shall be eligible for compensation as he or she suffered the injury during work. There shall not be dual law for employees & contractor persons. after all are human beings

  6. Considering number 1) My employer does all those things for exercise of control. They tell me when to come and go, they set what my rate to customers is to be. I am an engineer, and hence excersise control of my product (the dance). My employer does not tell me HOW to design what I design.
    Considering number 2) My employer provides computers, chairs, desks, paper, etc. They also allow me on the premises.
    Considering number 3) Herein comes the rub. My employer pays ME. He then charges the client for my time. He deducts his profit margin that is over and above his cost to employ me. (SSI benefits payments, holiday pay, insurance, wages, etc.) He provides me with a W2 for tax purposes at the end of the year.
    Considering number 4) Right to Fire. All employees in a right to work state such as Florida (where i live) are subject to termination for cause (not dancing, not showing up to work, etc)

    Summary. She does not qualify as an employee under points 3 and 4 but does qualify on points 1 and 2. Bottom line is that if you get a form 1099 (or similar), you are a contractor. If you get a W2, you are an employee. in this case, TOUGH CALL!

  7. OPINION!!!! Pay her, she probably needs it worse than the judge.

  8. The court made the right decision. She was a contractor not an employee.

  9. I believe we are looking at the wrong end of this thing. Why are we focusing on any type of employee when the incident is legal in nature. Obviously, the event that led to her being injured happened inside of the club, but to many there are big questions as to whether it was work related or whether it should be a legal issue. If it is determined as a WC case, I believe the dancer is a contractor, just like an electrician. #1 Just like an electrician or plumber who is contracted to complete a task for a business, that business controls when and where the repair takes place. #2 The club allowed her to dance that is all, ust like an electrician or plumber she was there for one thing. #3 No payroll taxes, no HR forms, no application for employment – contractor. #4 A contractor at your site disobeys the safety rules, you show them the door. Sounds like the club’s policy was the same for their dancers. This lady is a contractor….who can sue her employer in civil court.

  10. By Willy’s definition, I’m an employee of the gym I below to. They supply the equipment, music and the time I can be there to work out. They don’t tell me what equipment to use. I pay the club a fee to be there. And if I piss off the owner of the gym, I could be there for just one day, too. The club sets the rates for the benefits of its members, not performers. That’s why it’s called a club. As far as the contract, which states she signed, nothing was mention about payment of the entertainment but rather to comply with the club rules. The states I deal with require an employee to sign a W-4. If they get paid by 1099, they are a contractor. This article didn’t make mention of that, either. Some of these articles are too vague to get a real picture of the whole situation.

  11. It seems to me that the club had set up their “rules” to avoid such incidents. Do the bouncers have similar rules? Are neither group considered “employees” so as to avoid any legal action if an injury occurs? It appears to be a matter of perspective. The club controlled the music and dance schedule and provided the equipment and venue. Where her argument may fall flat lies in the method of payment as interpreted by South Carolina’s 4- part test. In essence, the club did not pay her – she paid a “fee” to the club in order to provide her entertainment services in the anticipation that she would recoup the cost through her tips. This to me demonstrates that strippers in South Carolina would be deemed as private contractors, and this was more of a contract business by nature.
    I feel badly for the woman, but I don’t think that workman’s compensation should be allowed – the courts got it right. There is, however, the possibility of a civil suit against both the gunman for causing her injuries and loss of livelihood AND the club for failing to provide a safe workplace. were there notices at the establishment stating that firearms were prohibited? Was there a metal detector in place at the entrance or a screening wand available? Someone is liable for her injuries, and I hope that she receives adequate compensation.

  12. The club maintained the “right to fire”. You don’t normally fire a contractor; you sever the relationship due to breach of contract. Employees are fired.

  13. Donna E. Keil says:

    I agree as well. It’s a very different kind of relationship, that’s for sure. But many “normally” employed people have a great deal more discretion over their hours and how they do their job. I have more control over how I accomplish my tasks than she did. She was also wounded during an altercation that the club could be liable for. If she can’t get Workers Comp, maybe she should sue the club for not providing a reasonably safe workplace.

  14. She’s a contractor. The argument about the stage and music and hours and all that are irrelevant. I’m sure it’s more technical than that, but bring it back to a contract employee in your office. An example would be a receptionist. You provide the office, the furniture and the other equipment necessary for the position. You also set the hours for work and define basic rules to be followed. The fact you’ve provided all of that doesn’t make the receptionist an employee.

    Every business owner asserts control over every visitor, contractor and employee to their business. To exercise control in this case, the business would have told her what to wear and how to dance (and since the dance itself is “the job”, it’s central in this case). Everything else that was mentioned only provides organization and equity among all the dancers and allows the business to provide the service it offers. To provide equipment would require they furnish the outfits she wore. The stage and everything else are furnishings for the business and noone would expect every girl to bring out their own stage etc. Method of payment, which is the biggest issue, would mean the dancer gets paid by the club. Finally, the right to fire is no more than a rescinding of the club’s permission to dance.

    So unless I’m missing a large piece of information, she’s only a contractor.

  15. She is entitled to compensation either way. If not WC then for negligence to provide a safe environment. Did the establishment not have security guards? Did the security guards not pat down it’s patrons so as to prevent weapons on the premise? If a contractor comes onto my premise and our negligence results in injury to the worker then you can bet money that we as a company is going to be liable for injuries. Perhaps LeAndra is pursuing the wrong venue to cover her expenses.

  16. Wow! “The article states she was shot while dancing.”

    I mean I’ve heard of piano players getting shot for being bad (Wild West), but not strippers. How bad could she have been?

  17. Given that argument, if you pay a roofer to re-roof your business establishment… and
    1) Told them what needed repaired and how you wanted it done
    2) Provided them with a ladder and bucket for their nails (perhaps because they forgot it)
    3) Paid them (obviously) for the work as it was completed, lets say daily, based on progress
    4) Fired the “contractor” because they weren’t repairing it to code

    and they got accidentally shot on a drive by…

    YOU would be liable for their workers comp? I don’t think so. An independent contractor is still a contractor, not an employee.

    • Calico Roni Rosenberg says:

      your analogy is not accurate. itd be more like
      1. told them what to do and when. spoke to them if they were not doing it just as you desired
      2. provided them with a location but assumed them with all relevant supplies (dancers provide all their own clothing/make up/etc. and training)
      3. charged them for working. then took a percentage of any further profit they made
      4. fired them for any reason or lack there of

  18. I would consider her an employee since the club chose the music, set the schedule and had termination rights. Whether she worked one night or twenty, she still had a schedule she was expected to abide by.

    But, since this young woman was shot while in the club, the club’s liability insurance should be covering all of her medical expenses and paying for pain and suffering……..that could be a MUCH higher amount than paying work-comp benefits. Of course, is the club’s liability insurance refusing to pay since she was ‘working’ at the club?????? I’d like to know where that issue has ended up.

  19. Even if this is compared to the contractor/sub-contractor relationship, the club acting as the contractor should be liable for damages to the sub-contracted dancer by no fault of the sub-contractor. As gun-play is not a normally foreseeable part of the work environment, the contractor failed to provide the necessary conditions for the sub-contractor to complete her job without undue harm.

  20. SpurnedByBNSF says:

    Willy,

    #1 & 2 By selecting the music and the atmosphere, the club is only exercising its right to set an expectation regarding the end product.

    #3&4 The dancers are not exclusive employees and in fact may work at several establishments as independent contractors concurrently. They are not paid on the clock but by the job.

    These dancers are clearly contractors and the judge got it right.

  21. Pay the girl. Sounds like she has gone through hell and she might not be able to have children. That’s a terrible price to pay for trying to make a living in this crappy economy. I want to know why the club wasn’t doing some pat downs of patrons before allowing them to enter the club. They had an obligation to provide a safe workplace for their dancers.

  22. When a company hires a sub-contractor to do specialty work, a dancer in this case, it doesn’t make them an employee of that company even though they are working for them. They are hower responsible for following any rules, guidelines, schedules, etc., that the employer sets in place and can be fired for not following such.
    If she had an agent or employment agency that she worked for, doesn’t sound like it, they would be the ones carrying the comp insurance. If neither one of them then she needed to carry her own as being self employed. Very expensive to do and I can see how she couldn’t afford to do that.
    Sounds like she should be going after the person who pulled the trigger, as sad as that may be.

  23. ONE WAY OR THE OTHER “BLogan” is correct. Either way the club should pay. Work comp or failure to provide a safe work environment taken to the courts. But, one way or the other the club is responsible. If you let someone set-up a lemonade stand on your property or allow them to read palms or dance, and a tree falls on them or a car crashes the work site you are responsible. Now comes an establishment where battery or attacks are so common that they must hire “bouncers” to control the violence and when it happens, after the ownership acknowledges the danger, they claim they are not responsible because she is not truly an employee!? Did she sign a contract? Did she sign a waiver? Without these they will pay, one way or the other.

  24. I submitted my statement earlier before I saw the “simple math” verification requested below. I hope you still have my statement. 🙂

  25. Joe has it correct. She is a contractor. She cannot be fired for missing a day, a week, or month. She decides which and if she works, no employee has that control. The club does not control when she works. The club controls the performance sequence, music, etc, like is done in a rodeo.
    She pays them a fee for the use of their facilities.
    In a contract there are terms and agreements, She has to agree and follow the terms of the contract, or the contract will be terminated.
    She being a contractor to the club makes the opposite true the club they have a contract with her. The question is did the club fail in their contract responsibilities? There is insufficient information given to address that legal question.

  26. Al, it states that the dancer pays a fee to dance and is only “paid by receiving a portion on her tips from the customers”. If she is a contractor she should be able to keep all the tips because she paid the fee. Why does the club get a fee and the rest of her earnings? is it to pay company WC fees, insurance for employees, taxes on money she earned?

    I also agree with JJ. The club is the contractor who hired the dancer to work for it.

  27. Willy has this one cold, but I also question the part about the contracted (dancer) being able to keep only a “portion” of the tips from the customers. Unless the customers are dropping things into a community jar, I believe the dancers are recieving the gratuity directly from the customers. She has already paid the fee (license to perform if you will) and additional monetary demands from the club should not be made. If the club is taking a “portion” of the tips, then the contractor argument becomes very cloudy because it is exercising control over income paid directly to the contractor that was not part of the original agreement.

    Of course the club is still liable as is the shooter (if identified) since both contributed to the advent of the injury.

    • As a dancer, they do take our tips. They take some of the money from the lap dances, along with the house fee, dj fee and the house mom fee.

  28. Inspector Gadgets says:

    I would agree with the court, she is a contractor. I did not see anything mentioned that she was required to fill out all the great paperwork you have to file as an employee of most businesses if not all. The solution she should seek is in civil court for damages & suffering. Seems the club failed to provide adequate security for its patrons, employees and “contractors” by allowing guns to be smuggled into its premises. I would sue both the shooter and club for pain & suffering…hope she finds justice in this case.

  29. Hey Inspector Gadgets, Can you investigate why she is only allowed to received a portion of her earnings after paying her $70.00 fee? Why doesn’t she get it all? Why does the company get to keep the rest? Thanks. Companies do not keep a portion of the contractor they hired earnings.

  30. Again Willy is right

  31. There are more interesting details on this case provided at;

    http://www.workerscompinsider.com/

    Interesting to see how much she made a year (although she did not pay income taxes) and that she went from club to club, unannounced and uninvited to secure stage time. While the events that transpired were unfortunate, seeing more setails on this case certainly affects my sympathy for her.

  32. Yes Jason B, The club didn’t have Workers Comp Benefits to begin with, according to that sight you mentioned. It was the South Carolina Uninsurded Fund that denied her. That club owner has employees there. How can he not have WC Benefits. She needs to go after the owner of the club with a civil suit.

  33. At some point in time we all have to take responsibility for our own actions. Just because something happens to you doesn’t give you the right to sue anybody.

    First of all, somebody who makes an estimated 82,000 a year, and doesn’t pay taxes on it, has plenty of money to afford their own insurance.

    Secondly, she knew what type of environment she was walking into, surely not the first fight she had ever witnessed. If you decide to take a nature walk one afternoon and get attacked by a cougar who are you going to sue then, the state because it was their property?

    It’s time, actually past time, that people stop all this talk about suing someone. Grow up and take care of yourself!!!

  34. All this talk about what PAPERWORK she DID or DID NOT fill-out at the time of hire is completely irrelevant! An signed agreement is not worth the paper it’s printed on if the arrangement outlined is illegal! Employee vs. Independent Contractor status is determined by the issues of employer control, use of the employer’s premises and equipment, right to discipline and fire, etc., NOT what was written on a piece of paper, regardless of who signed it. That’s why the IRS and 5 other government agencies have their own “tests” to determine if a “contractor” was misclassified by the employer! (In California, this is one of the most common HR mistakes.) Just because you put something in writing doesn’t make it correct or legal!

    She was totally an employee! Maybe the club didn’t tell her when to swing her hips to the left or when to shimmy her shoulders, but they picked her music, told her what day and time / how long / how often / in what order / to dance. They told her who the VIPs were each night and that she should try to get them to buy VIP dances. They even kept a portion of her tips (on top of her nightly “fee”) as Company revenue. That’s no contractor relationship!

    If she was scheduled to dance one night but no showed, do you think they’d just say, “Oh, that’s okay, she’s a contractor so she can do the work (dance) whenever she wants.”???!!! Ha!!

    And if she decided to show up one night at the club wearing a tutu and pointe shoes and started to dance classical ballet, do you think they’d say, “Oh well, she is contractor, after all, so it’s totally up to her how she chooses to dance.” Give me a break!!!

    I’m from Mississippi, and I love the South, so it pains me to say that this whole think stinks of some South Carolina “Good ‘Ole Boy” prejudice. These judges didn’t respect this woman because she worked as a stripper, but I’d bet the farm that, while they looked down on her from their high and mighty benches, they would…

  35. I agree with you Joe but I’m sure that if something like this happened to you or one of your family members you wouldn’t just shrug it off. The club should have, at least, property insurance to cover any injuries to anyone that may happen on the property.

  36. Why is it necessary to blame the club owner? He didn’t pull the trigger and I highly doubt he had anything to do with the fight. He didn’t invite any of those people. They were there on their own free will.
    Maybe I am old school because I believe you need to take care of yourself. Yes you can blame and try to hold the shooter responsible but that’s the end of your money trail. Pretty simple concept if you ask me.

    Do you want to be sued by someone who is walking up to your house, uninvited, and trips? Yes your home owners will probably cover it but it’s the principle of the matter. Accidents happen and you need to be prepared and willing to take care of yourself. Oh wait, this is America, “The Land Of Handouts”

  37. Joe, Joe, Joe, It wasn’t her fault it happened either. She didn’t cause it. And my post didn’t blame the owner or anyone I’m just stating an accident happened on the property and property insurance should cover it. Unless he didn’t have any. He didn’t carry workers Comp. so it wouldn’t surprise me if he didn’t. I notice you didn’t respond to my inquiring if you would just shrug off anything that happened to you or a family member in this or any manner where an injury had occurred. You would just pay for all the medical bills, etc. yourself right? You wouldn’t file no insurance claims? If you got hurt at work you wouldn’t put a WC claim in because “Accidents happen and you need to be prepared and wiling to take care of yourself”? That is a quote from someone named Joe.

  38. @Willy… Quit trolling… no need to defend your opinion against every single opposing view. We get it!

  39. My comment about holding the shooter responsible answers your question. I have been injured at work before and yes filed a workmans comp claim. One of the benefits of being an employee, which this individual clearly wasn’t. I, and others in my family, have had injuries in the past that weren’t work related or our fault but because we chose to be where and when then yes it falls on our dime. Not the person that owned the property, or the person that brought the other individuals, or the person who arranged the gathering. The list can go on and on. Time to STOP the sue chain!!!
    What are you going to do about the individual that trips on your property, uninvited mind you, and sues you? Or lets say you have a family get together. Hire a band to play some music. Band members aren’t getting along and start fighting. The next thing you know one of them gets stabbed. It’s going to be OK with you that the individual that got stabbed sues you?

  40. Sorry Jason B if I upset you by trolling. And Joe, My property insurance would take care of everything. That’s why I have it. To cover accidents that happen on my property like this incident. Done

  41. And that is exactly what I thought you would say. Why should your insurance have to pay anything? You didn’t stab the guy or trip the individual headed to your door step. People wonder why insurance rates are so high.

  42. Because that is what they are paid to do. To help the less fortunate ones who are injured accidently or not. Whether rich or poor. Your property or others. They help restore the lives of the injured the best they can. That’s why there are so many different kinds of insurance companies. It’s to cover every scenario that can possibly happen. What a silly question to ask.

  43. If an arson burned down your home and your friend parished in it, God forbid, and left his family without a penny. Why should your insurance company pay for the death of that person? You didn’t burn the house down. Even though your not to blame the insurance company will cover the death to help that family move on the best they can. C’mon.

    Next post.

  44. You might see it as silly. I see it as a serious problem that has infected what once was the “Land of the Free”!!

    Lets agree to disagree and move on shall we?

  45. If the club had the ability to hire and fire her she was an employee

  46. Two courts said she was not an employee, therefore, legally, she was not an employee. Every company has the right to contract with outside people or companies, or sever their services. I am sorry the event happened, however, in my opinion, the shooter was responsible for the accident – no one else, not the gun, not the owner of the club, not the person he was arguing with – the shooter – get it? It is illegal to shoot people, unless it is self defense and that is true whether the victim is an employee, contractor, or boss. This was a crime not a workers comp case. It can happen at a bar, a supermarket, or a theatre. Repeat after me…It is a crime not a workers comp case.

  47. The club made a mistake; they should have paid the WC cost. Since the court ruled this is not a workers comp claim then it is now a general liability claim. The facility failed to provide protection and safety that allowed a contractor to be injured. Therefore she can sue the shooter, the strip club for damages and anyone else involved in the incident to include the bouncer who allowed the shooter into the building. By making this a general liability suit allows her to attack the clubs hiring practices, security rules and practices, and training of the clubs employees to include the club’s emergency actions plans.

  48. As a dancer, im gonna tell you guys whats up. We do sign a co.ntract when hired. We live only on tips. They call us independant contractors but treat us as employees. They take our house fees, dj fees and house mom fees. They tell us when to dance, choose our music and yes they DO take a percentage of our lap dance money. We do not choose how much our lap dances are. Theyre $2; a song and we only get $15 for it and for a hakf hour its $150 and we only get $100 of it. I do make my own schedule but if i dont show up i geta penalty. If im late i have to pay a late fee for every hour. Im an i.dependant contractor but dont get treated likeone. I have a manager. Im not my own boss. Ill get fired if i dye my hair a color they dont like, or if i get a piercing, tattoo or whatever. Just saying.if they wanna call us independant contractors, stop treating like employees. I should be able to keep all my earnings. I understsand the house fee but to take the lap dance money? Theyre not the ones grinding on laps all night. If they wanna treat us like employees, we should have the rights of employees. If not actually TREAT us like the “independant contractors” we apperently are.
    Okay rant over.

  49. Katherine Modesty Polematrix says:

    Dancers are employees. The court should have taken a look at the 20 factor test that the IRS uses. Any paid employee anywhere else could fall under those same 4 rules that they used.

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