An exotic dancer, who worked in various “strip” clubs in North and South Carolina, and who was shot and seriously wounded while performing at the Boom Boom Room Studio 54 in Columbia, South Carolina, was an independent contractor and not an employee of the club, held the Court of Appeals of South Carolina [Lewis v. L.B. Dynasty, Inc., 2012 S.C. App. LEXIS 260 (Sept. 5, 2012)]. Accordingly, she could not recover workers’ compensation benefits for her injuries.
The dancer was nineteen years old and living in Charlotte where she danced three or four nights each week at a local club. On two or three other nights a week, she traveled around the Carolinas to dance in other clubs, earning between $250 and $350 each night in cash. She had only danced at the Boom Boom Room on a couple of prior occasions. As explained by other exotic dancers who testified at a hearing, they often chose a city and a club to dance in on a particular night and travel there uninvited and unannounced. In keeping with that practice, the dancer presented herself at the Boom Boom Room and paid the required “tip-out” fee in cash to the club. She completed no paperwork. The club gave her a “rules sheet” and she went to the dressing room to put on her outfit. Then she danced. At some point during the night, an altercation broke out in the club. There was gunfire, and a stray bullet hit the dancer in the abdomen. She suffered serious injuries to her intestines, liver, pancreas, kidney, and uterus. Surgeons removed one kidney, and doctors informed her she may never be able to have children due to the injuries to her uterus. According to her testimony, extensive scarring from the gunshot wound left her unemployable as an exotic dancer.
She filed a claim for workers’ compensation benefits. Both the single commission and the appellate panel denied the dancer’s claim based upon a finding that she was not an employee. She appealed. She contended that the club managers “controlled” her by searching her when she arrived, requiring her to pay the “tip-out” fee, and directing her to the manager’s office, and then to the dressing room. She argued that she danced when she was told to dance. The club selected the music, set the hours, and determined the general environment. She further argued that the club furnished equipment, such as the stage for dancing, poles to assist the dancers, private rooms for V.I.P. dances, tables, chairs, and the like.
The majority of the court indicated that under Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009), it was clear that she was not an employee. She had discretion in how she danced. Indeed, the majority indicated that “the extent to which an exotic dancer in the Boom Boom Room decides the manner in which she performs her dance to satisfy the club’s customers, according to the record in this case, is not subject to any limitation or control by the club.” Moreover, the equipment furnished by the club was not significant. Important to the case was the fact that the club paid the dancer nothing at all. Indeed, she paid the club for the right to perform. This factor weighed heavily against an employment relationship. Finally, there was no showing that the club could fire the dancer. All the factors pointed to the conclusion that the dancer was not an employee, but rather an independent contractor.
Justice Short dissented, indicating that the dancer was required to present her identification and sign a form agreeing to comply with the Club’s rules. The Club provided virtually all of the necessary tools for the dancers to perform, including towels, lockers, alcohol, music, chairs, tables, a stage, poles, a “V.I.P.” area, and customers. Although dancers could choose their own costumes, they could not remove the bottom portion of their costume or choose when they performed on stage. The Club set the fees for V.I.P. dances and required the dancers to remit a portion of the fees they collected to the Club. This pointed to sufficient control to warrant a finding of employment.