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Newspaper workers, exotic dancers seek recognition as employees

A 2014 decision by the California Supreme Court may have opened the door to class certification in independent contractor lawsuits statewide, according to two attorneys familiar with the issue. The case involved newspaper delivery workers who were certified as a class despite a requirement that certain parts of the legal analysis, such as overtime pay and break period compliance, be examined on an individual basis.

According to the court, the analysis turns on the company's legal right to control the workers rather than on the actual exercise of that right. The ruling may have a significant impact on an industry seemingly far-flung from newspaper delivery: exotic dancing.

Exotic dancers have become a symbol for independent contractor misclassification lawsuits of late. In one 2012 case, for example, approximately 11,000 dancers in Nevada and California settled their claims for $12.97 million. Most states use some variant of a six-pronged analysis in determining whether a particular worker is an independent contractor or an employee. A finding of employee status may may entitle the worker to minimum wage, overtime pay and other benefits.

The six points of analysis, briefly, are: the control the business has over the manner of work performance, the skill required to perform the work, the length or permanence of the work relationship, the relation of the work performed to the operation of the business, the independence of the worker's profit or loss and the level of investment by the worker in material or equipment for the work. The specific points vary from state to state, but the primary focus is on control.

Class certification is not guaranteed and depends largely on the specific facts of each case, but the ruling by the California Supreme Court may make certification more likely in independent contractor misclassification lawsuits across all industries. An employee rights attorney may be able to help interested parties to understand the operation of state and federal employment law or to bring a claim for back wages or other damages.

Source: Bloomberg BNA, "More Exotic Dancers' Misclassification Suits Dispute Clubs' Business Model, Lawyers Say", Anna Kwidzinski , August 11, 2014

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