Safety and OSHA News

Stripper hit with stray bullet at club: Will she get workers’ comp?

Are strippers employees or independent contractors? The answer to that question, considered by a state supreme court, determined whether this worker got comp benefits from being shot at work.

LeAndra Lewis worked as an exotic dancer at Studio 54 Boom Boom Room in South Carolina.

One night while she was performing there, a fight broke out and Lewis was struck in the abdomen by a stray bullet.

She suffered severe damage to her internal organs, including the loss of a kidney. The shooting also left her with substantial scars.

Lewis filed a workers’ comp claim for temporary total disability benefits and medical treatment. The South Carolina Uninsured Employer’s Fund disputed Lewis’s claim, arguing she was an independent contractor and not an employee. Lewis countered that the club controlled the manner in which she performed, therefore she was an employee.

A workers’ comp commissioner found Lewis was an independent contractor. The appellate panel of the workers’ comp commission agreed as did a state appeals court. Recently, the South Carolina Supreme Court took up the case.

4-part test

The state’s highest court said determining whether a worker is an employee eligible for workers’ comp involves a four-part test.

The first question: Is there direct evidence of the right of exercise or control of the employee by the employer?

In Lewis’s case, the supreme court noted the club required the dancer to:

  • pay a set tip-out fee
  • undergo a search
  • review the club’s rule sheet
  • stay until the end of her shift
  • perform to music the club chose
  • perform V.I.P. dances when requested by customers, and
  • perform topless.

The court also noted Lewis had no set schedule and showed up on the particular nights she wanted to. But given all the factors, the court found this factor weighed in favor of finding that Lewis was an employee.

The second question: Did the employer furnish equipment for the employee to perform her job?

The appeals court had found that, “From the standpoint of both the club and its customers, Lewis brought her own ‘equipment’ for her work.”

By “equipment,” the appeals court meant her body.

The supreme court said it disagreed that a person’s body can be considered equipment.

It also noted that, other than Lewis’s costume, the club provided:

  • her performance space
  • a stage with a pole
  • tables, and
  • a sound system.

As noted, the club also provided the music she danced to.

So on the second question, the supreme court found the evidence pointed to an employee relationship.

The third question: How was the worker paid?

When considering this question, a court looks at whether the worker was paid by the hour and how the worker filed her taxes.

Lewis never filed taxes, and the club provided her with neither a 1099 or W-2.

But Lewis was paid, more or less, directly by the customers. On this factor, the court ruled the evidence pointed to an independent contractor relationship.

The fourth question: Did the employer have the right to fire the worker without risk of repercussions?

With an independent contractor relationship, the contractor often has the legal right to complete the project if it’s prematurely interrupted.

On this question, the court noted:

  • Lewis would be fined for failure to comply with rules, and failure to pay any fine would result in her firing.
  • She could also be fired for continuously breaking the rules, fighting or improper hygiene, and
  • The club could also decline to let her in for not having the desired appearance.

So on the fourth point, the supreme court said it looked like an employee relationship.

On three of the four points, the South Carolina Supreme Court said it appeared Lewis was an employee. As a result, the court said the weight of the evidence was in favor of finding Lewis was an employee who was eligible for workers’ comp benefits. One justice dissented, agreeing with the interpretation of the appeals court.

What do you think about the court’s decision? Let us know below in the comments.

(LeAndra Lewis v. L.B. Dynasty dba Boom Boom Room Studio 54, South Carolina Supreme Court, No. 2012-213376, 3/18/15)

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Comments

  1. Nestor Arboleda says:

    I agreed. All human person doing his performance or work in any USA place and get pay for the performance in private clubs or any other place as “employee” must get the benefits of workers compensation…even is not doing taxes, because get paid in cash. Also she gets injury in the place of work…she deserve the best treatment by the employer.

  2. I disagree. First, she is not paying taxes. What supports the Workers Comp system? All of us simply have to do is look at our payroll checks to know the answer to this. Why should someone be able to use the system if they don’t contribute to support it? Second of all, every job has its level of risk. Working in a garden I have to look at over exposure to sun, strain and sprains, possible contact with wild life. Generally speaking, “clubs”: are in not so nice parts of our communities and in very high traffic areas. Also, the clients of these establishments have a range personalities and ethics. Knowing this it has its risk exposures to you. In either case you do what is in your control to avoid those exposure and realize that if you don’t their are consequences to those decisions. I am sure this person didn’t complain making all this money tax free and getting the attention and didn’t bother to inform the Federal Government of the income she was making. Now that she was in a bad situation she is complaining to that same government to take care of.

    • Employee taxes don’t pay for workers compensation. It’s an insurance policy that the employers must pay for either through the state or a private insurance carrier.

  3. Cindha Leigh says:

    The company is paying Workers Comp. She is an employee, because she works there. You don’t see her stripping on the side of the street or in her house, she works at the club. They have rules for her, she follows them. If she gets hurt while working, it is the companies workman’s comp that should pay. If she were a customer, they could sue the company. If she doesn’t get workman’s comp, she should sue as if she were a customer. However, the company should have tax info available, and as one of their rules, help the employees report their income.

  4. Tough call and I can see both points, however I would have to think the Supco erred in this by giving equal weight to the four points. I would have thought she would have to meet ALL of the points to be considered an employee. Also the point that the club did not “pay” her, did not deduct for SS, FICA or Work Comp, would point towards her being an “independent contractor”. I would also point out that her failure to pay taxes on her earnings is likely to land her in hot water with the IRS who wouldn’t care that she was injured. (Exactly how many years did she fail to pay?) Even if you are an independent contractor, you have to follow the rules of the place where you are working, including lockout tagout, safety equipment, work hours and rules. As an independent contractor you cannot make up your own rules when on the property of the person you are contracted with.
    Supco made the wrong call IMO.

  5. Ken Watson says:

    I would say that she should have just filed suit against the shooter. The problem is that the club owner had no control over the firearm problem. (I do not believe that private businesses open to the public have an inherent assumption of protection or safety from other citizens.) It would be against the club only if the shooter was an employee of the club. As a contractor, the worker would have no workers’ compensation claim against the club. As well as it is not the club’s responsibility to garnish taxes, SS or FICA from a non-employee, it is he contractor’s responsibility to claim those items through their accountant. She should have had her own workers’ compensation insurance considering any injury to a “worker” of that nature’s body is a full disability injury.
    If you want to go into business for yourself, as a contractor, you should know the laws.
    As stated by another commenter here, contractors have to follow certain rules of their customers, in this case, the contractor is supplying a service to two different customers, the paying ones and the contracting one! However, I believe that the relationship should probably be one of a lessor and leasing agent, for the pole and stage space.

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