South Carolina Erotic Dancer Not Covered by Workers’ Comp

A South Carolina court has found that an erotic dancer who suffered a gunshot wound while performing is not eligible for workers’ compensation benefits since she didn’t meet the definition of being an employee at the club where she was dancing.

The South Carolina Court of Appeals issued a split decision in the case that originated in 2008 when LeAndra Lewis was working as a dancer at the Boom Boom Room in Columbia, S.C. While she was performing a fight broke out among some customers and she was severally injured by a stray gunshot.

Lewis suffered serious internal injuries, lost a kidney and the doctors testified she may never be able to have children. She also said the scarring from the wound and subsequent surgeries ended her ability to work as a dancer and earn her livelihood. See [Lewis v. Boom Boom Room and South Carolina Uninsured Employers’ Fund, Opinion 5032 S.C. (2012)]

The court was asked to decide whether Lewis’ work met the four-prong test as set out in a previous case [Wilkinson v. Palmetto State Transportation, 382 S.C. (2009)] that determines whether someone is eligible for workers’ compensation benefits depending if they are legally classified as an employee or independent contractor.

The four-prong test requires that for a worker to be classified as an employee the employer must dictate the scope of their duties, furnish equipment, determine the manner in which they are paid and have the right to terminate their employment.

Lewis testified in the case that while she was a regular dancer at another club, she often traveled around and performed as an erotic dancer in other locations. Several of her fellow dancers testified that it is common for dancers to go to clubs unannounced as they searched for places holding special events that held the promise of them making more money.

Lewis claimed that the Boom Boom Room managers set the terms of her employment by telling her when to dance, what music to use, how her tips would be divided and to perform “VIP” dances and to serve drinks.

She also argued that the club provided the equipment she needed to perform by having a stage, dancing poles, a VIP area and bar and disc jockey.

According to standard practice in the erotic dancing industry, dancers are only paid tips from customers and they pay an agreed upon portion of those tips to the club for allowing them to dance. Therefore, Lewis argued that even though the club doesn’t pay payroll taxes on behalf of the dancers, by setting the percentages the dancer and club would earn the club acts as an employer.

She estimated that depending on the night and number of customers at a club she typically made $250 to $300 a night for a yearly income as high as $82,000, an amount she admitted she never paid income taxes on.

She also contended that the club could fine her or refuse to allow her to dance if she broke the club’s rules, such as performing a sex act with a customer or getting into a fight.

District Court Judge John Few, writing for the majority complimented Lewis and her attorneys for making a “creative presentation,” which made it appear the case met the Wilkinson requirements. However, by an 8-1 margin, the court rejected her position.

Judge Few noted that although the Boom Boom Room manager told Lewis at what times she was to perform that night, the club did not tell her how to dance and her performance was at her complete discretion.

“The extent to which an erotic dancer in the Boom Boom Room decides the manner in which she performs her dance to satisfy the club’s customers is not subject to any limitation or control by the club,” stated Few.

As to furnishing the equipment Lewis needed, Few noted that there is no possibility or expectation that the dancer could bring her own stage, dancing poles or VIP areas to the worksite. Therefore, the club only provided her access to a place to perform in which she needed one thing, namely, her physical presence.

“From the standpoint of both the Boom Boom Room and its customers, Lewis brought her own ‘equipment’ for her work,” wrote Few.

As for compensation, Few pointed out the club did not pay the dancers and its only involvement with the customers on behalf of the dancers was to keep a large supply of dollar bills available. This allowed customers to “make it rain” by throwing money in the air on to the stage after an “enthusiastic performance.” In fact, Few noted, the dancer actually paid the club along with tipping the disc jockey and bartender.

Lewis testified that the club as an employer had the right to fine her or refuse to allow her to dance if she violated the club’s policy against performing a sex act on a customer, fighting or otherwise not doing what the management wanted.

Few said that regardless of whether a worker is an employee or independent contractor, any business is allowed to impose some conditions on their activities. In Lewis case, he the club’s so-called rules where merely a requirement that she “obeyed the law.”

While eight judges voted to deny Lewis’s claim, one judge dissented. District Court Judge Paul Short wrote that Lewis’ met the four-prong test to be classified as an employee, noting that court’s in several other states found the same in similar cases.

Short noted that the Boom Boom Room treated Lewis like an employee by setting out a number of parameters that influenced her activities and compensation, starting with having her sign a form agreeing to comply with the club’s rules.

For example, Short noted, although the club may not have told Lewis “how” to dance, Short said it did set out certain parameters. “Although dancers could choose their own costumes, they could not remove the bottom portion of their costume or choose when they performed on stage,” wrote Short.

Likewise, Short noted that while the Boom Boom Room did not directly pay Lewis it did set out guidelines that helped calculate her compensation. He noted that while the dancers received tips for VIP performances, the club did set the initial fee a customer had to pay to have the dance. And he said there is no difference between the dancer being paid by customers and then paying the club and the club collecting the money and then paying the dancer if the club is setting the percentages that will determine how the money is divided.

“Under the totality of the circumstances, I find the club exercised the sufficient amount of control over Lewis in the performance of her work to establish an employment relationship,” concluded Short in his dissent.