The California Supreme Court’s landmark decision
The California Supreme Court’s landmark decision in Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018) drastically limited the types of employees who could lawfully be independent contractors.
Less than a year later, there have been real-world effects on industries like hairdressing, trucking, and…. Stripping. Yes, stripping.
Many exotic dancers had been working as independent contractors rather than as employees. But last week, the Los Angeles Times reported that the Dynamex decision has removed strippers’ ability to choose whether they want to remain independent contractors. https://www.latimes.com/business/la-fi-dynamex-contractors-20190223-story.html
Under Dynamex’s new “ABC” test, workers in a variety of industries can no longer simply decide that they want to be independent contractors. To be an independent contractor, a worker (A) must be free from the hirer’s “control and direction,” (B) must perform work “that is outside the usual course of the hiring entity’s business,” and (C) must ordinarily work in the trade for which his or her services are sought.
Factor “B” is the most radical departure from the previous legal standard. It means that a business owner – including, apparently, owners of gentlemen’s clubs – must treat the workers who work in their usual business – the dancers – as employees. This means they now owe payroll taxes for these employees and must comply with California laws regarding wages, overtime, and meal and rest breaks.
While the stated goal of Dynamex was to protect workers, many workers will end up earning less, as the Los Angeles Times reported. And workers in industries like exotic dancing may have less control over their work, which makes them less protected. The article quoted Stormy Daniels (yes, that Stormy Daniels), who expressed in an op-ed in the Los Angeles Times that if strippers were forced to become employees, “employers might require use to give free nude performances to customers we don’t feel comfortable with.” Yet not all exotic dancers agree; some wish to go further and unionize, the article reported.