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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Josephine Tijerino,

Plaintiff,

v. 

Stetson Desert Project LLC, et al.,

Defendants.

No. CV-15-2563-PHX-SMM (Lead)

Nos. CV-15-2564-PHX-SMM, CV-16-

0408-PHX-SMM (Consolidated)

ORDER 

Before the Court is Plaintiff Jane Roe Dancer’s (“Plaintiff”) Brief RE: Dancers’ 

Employee Status Under the FLSA’s Economic Realities Test. (Doc. 41.) Defendants 

Stetson Desert Project LLC, Cory Anderson, and Cary Anderson (“Defendants”) filed a 

Response to Plaintiff’s Brief. (Doc. 46.) The Court now issues the following ruling.

I. BACKGROUND 

 Defendants own and operate Le Girls Gentlemen’s Club located in Phoenix, 

Arizona. (Doc. 8 at 1.) Plaintiff is a former dancer at Le Girls (Doc. 16 at 1; Doc. 19 at 

3), and brings this lawsuit as an individual, as a collective action on behalf of all those 

similarly situated individuals under § 216(b) of the Fair Labor Standards Act (“FLSA”), 

and as a class action on behalf of all those similarly situated individuals under Fed. R. 

Civ. P. 23 to remedy violations of the Arizona Minimum Wage Act and Arizona common 

law (Doc. 1 at 2). 

 Plaintiff filed a motion requesting that the Court enter an order conditionally 

certifying a FLSA opt-in class in connection with Count I (Failure to Pay Minimum 
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Wage - FLSA) of Plaintiff’s Complaint, and authorizing notice to putative class members 

regarding their opt-in rights. (Doc. 16.) 

On December 6, 2016, the Court denied Plaintiff’s motion, finding it premature. 

(Doc. 21.) The Court explained that “[b]efore the Court will rule on a motion for 

conditional class certification, Plaintiff must satisfy her initial burden of alleging specific 

facts that permit an inference that she is an “employee” (and the Defendants her 

“employer”) within the meaning of the FLSA.” (Id. at 3-4.) The Court then ordered 

Plaintiff to brief the issue of whether Plaintiff and her putative class are employees within 

the meaning of FLSA under the economic realities test set forth in Real v. Driscoll 

Strawberries Assocs., Inc., 603 F.2d 748, 754 (9th Cir. 1979). (Id. at 4-5.) 

In response to the Court’s Order, Plaintiff filed the instant brief,1 to which 

Defendants filed a Response (Doc. 46). 

II. THE FAIR LABOR STANDARDS ACT (FLSA) 

The FLSA mandates that employers pay employees certain minimum and 

overtime wages, and employ employees for no more than a certain amount of hours each 

week. 29 U.S.C. § 206-207 (2016). The FLSA penalizes employers for violations of its 

provisions. Id. § 216. 

The FLSA defines “employee” as “any individual employed by an employer.” 29 

U.S.C. § 203(e)(1). An “employer” is defined as “any person acting directly or indirectly 

in the interest of an employer in relation to an employee[.]” Id. § 203(d). Courts have 

adopted “an expansive interpretation of ‘employer’ and ‘employee’ under the FLSA, in 

order to effectuate the broad remedial purposes of the Act.” Real, 603 F.2d at 754. 

Consequently, employees are those “who as a matter of economic reality are dependent 

upon the business to which they render service.” Id. (quoting Bartels v. Birmigham, 332 

U.S. 126, 130 (1947)). Whether an individual is an employee or an independent 

contractor for purposes of the FLSA is a question of law. See Bonnette v. Ca. Health & 

 

1

 On the same day Plaintiff filed the instant brief, she also filed a Renewed Motion 

for Conditional Certification and to Authorize Notice to Putative Class Members. (Doc. 

40.) 
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Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983). 

 Courts consider a number of factors to assess the economic reality between the 

putative employee and putative employer for purposes of the FLSA. Real, 603 F.2d at 

754. The factors include: 

(1) the degree of the alleged employer’s right to control the manner in 

which the work is to be performed; 

(2) the alleged employee’s opportunity for profit or loss depending upon 

 his managerial skill; 

(3) the alleged employee’s investment in equipment or materials 

required for his task, or his employment of helpers; 

(4) whether the service rendered requires a special skill; 

(5) the degree of permanence of the working relationship; and 

(6) whether the service rendered is an integral part of the alleged 

 employer’s business. 

Id. The presence of any one of the above factors is not dispositive of whether an 

employee/employer relationship exists; rather, whether such a relationship exists depends 

“upon the circumstances of the whole activity.” Id. (quoting Rutherford, 331 U.S. at 730). 

Importantly, a contractual label does not determine employment status, nor does the 

subjective intent of the parties to a labor contract override the economic realities reflected 

in the factors described above. Id. at 755 (internal citations omitted). 

Although this District and the Ninth Circuit appear not to have examined the 

relationship between exotic dancers and the clubs where they perform under the factors 

set forth in Real, numerous courts outside of this District and Circuit have examined the 

relationship under factors similar to those set forth in Real. See e.g. Shaw v. Set 

Enterprises, Inc., No. CV-15-65152, 2017 WL 1380774, at *3 (S.D. Fla. Mar. 17, 2017) 

(analyzing relationship between exotic dancers and clubs under Scantland v. Jeffry 

Knight, Inc., 721 F.3d 1308 (11th Cir. 2013)); Lester v. Agment LLC, No. CV 1:15-886, 

2016 WL 1588654, at *4 (N.D. Ohio April 20, 2016) (analyzing relationship between 

exotic dancers and clubs under Donovan v. Brandel, 736 F.2d 1114 (6th Cir. 1984)); 

Hanson v. Trop, Inc., 167 F. Supp. 3d 1324 (N.D. Ga. 2016) (analyzing relationship 

between exotic dancers and clubs under Scantland); Foster v. Gold & Silver Private Club, 

Inc., No. CV 7:14-00698, 2015 WL 8489998, at *3 (W.D. Va. Dec. 9, 2015) (analyzing 

relationship between exotic dancers and clubs under Schultz v. Capital Int’l Sec., Inc., 
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466 F.3d 298, 304 (4th Cir. 2006)); Mason v. Fantasy, LLC, No. CV-13-02020-RM, 

2015 WL 4512327, at *8 (D. Colo. July 27, 2015) (analyzing relationship between exotic 

dancers and clubs under Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1346 (10th Cir. 

1998)); Verma v. 3001 Castor, Inc., No. CV-13-3034, 2014 WL 2957453, at *5 (E.D. Pa. 

June 30, 2014) (analyzing relationship between exotic dancers and clubs under Donovan 

v. DialAmerica Mktg., Inc., 757 F.2d 1376 (3d Cir. 1985)); McFeeley v. Jackson Street 

Entertainment, LLC, 47 F. Supp. 3d 260 (D.Md. 2014) (analyzing relationship between 

exotic dancers and clubs under Schultz); Hart v. Rick’s Cabaret Intern., Inc., 967 F. Supp. 

2d 901 (S.D.N.Y. 2013) (analyzing relationship between exotic dancers and clubs under 

Brock v. Superior Care, 840 F.2d 1054 (2d Cir. 1988)); Doe v. Cin-Lan, Inc., No. CV-08-

12719, 2008 WL 4960170, at *6 (E.D. Mich. Nov. 20, 2008) (analyzing relationship 

between exotic dancers and clubs under Donovan)). 

 In each of the foregoing cases, the courts found an employee-employer 

relationship to exist. Notably, in all but one of these cases,2

 the clubs were found to exert 

“substantial,” “significant,” “high,” or a “tight” amount of control over their dancers.3

 These cases are persuasive but non-binding upon this Court. Nevertheless, an 

important question will be what difference, if any, exists between the economic realities 

in the foregoing cases and the economic reality in this case. 

III. DISCUSSION 

Before resolving the issue before it, the Court will first address an argument raised 

by Plaintiff prior to his arguing the status of Plaintiff as an employee under the FLSA. 

 Plaintiff argues that it is improper for the Court to determine whether Plaintiff is 

 

2

In Doe, the District Court found that the evidence on the control factor was 

“mixed.” The District Court ultimately concluded that, on balance, the control factor 

weighed in favor of the dancer’s likelihood of proving that she was an employee, because 

“[h]er autonomy in performing her work [was] undermined too much by [the Club’s] 

entirely discretionary control over what she [could] charge third-party customers.” Doe, 

2008 WL 4960170, at *17. 

3

 Cf. Home Insur. Co. v. Industrial Commission, 599 P.2d 801, 803 (Ariz. 1979) 

(explaining that the distinction between an employee and an independent contractor turns 

on the employer’s right to control the employee).
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an employee at the conditional certification stage because “it goes to the heart of the 

merits of this case and is not properly considered as part of the initial ‘notice stage’ 

determination of whether Plaintiffs are ‘similarly situated’ for purposes of conditionally 

certifying an FLSA collective action.” (Doc. 41 at 2 (citing Colson v. Avnet, Inc., 687 F. 

Supp. 2d 914, 925-26 (D. Ariz. 2010).) The Court disagrees. 

First, whether Plaintiff is an employee does not go “to the heart of the merits of 

this case”; rather, it is an antecedent issue. See Rutherford Food Corp. v. McComb, 331 

U.S. 722, 727 (1947) (explaining that whether the acts charged in a complaint violate the 

FLSA depends on whether Plaintiff is an employee and Defendant her employer); accord 

Dellinger v. Science Applications Intern. Corp., 649 F.3d 226, 228 (4th Cir. 2011) 

(“Consistent with the FLSA’s purpose to regulate the employer-employee relationship 

and the relevant text of the Act...only employees can sue their current or former 

employers[.]”). If Plaintiff is not an employee under the FLSA, then there can be no 

alleged violation of the FLSA, and therefore no conditional certification of a FLSA 

collective action. 

 Second, the rule set forth in Colson – that it is not the court’s role to resolve 

factual disputes or decide substantive issues going to the ultimate merits of the case at the 

conditional certification stage – applies to the court’s “similarly situated” determination, 

not to the court’s employee determination. See Colson, 687 F. Supp. 2d at 924-26. 

Plaintiff fails to recognize that the question of whether Plaintiff and her putative class are 

“similarly situated” for purposes of conditionally certifying an FLSA collective action is

not the same question as whether Plaintiff is an employee within the meaning of the 

FLSA. Indeed, they are separate inquiries analyzed under different legal standards. 

Compare Colson, 687 F.Supp.2d at 924-26 (explaining that Plaintiff and her proposed 

class members are “similarly situated” within the meaning of § 216(b) if the evidence 

shows “some factual nexus which brings the named plaintiffs and the potential class 

members together as victims of a particular alleged policy or practice”) with Real, 603 

F.2d at 754 (explaining that Plaintiff is an employee if she “as a matter of economic 
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reality [is] dependent upon the business to which [she] renders service”) (quoting Bartels 

v. Birmigham, 332 U.S. 126, 130 (1947).) The rule set forth in Colson therefore does not 

apply to the Court’s employee determination.

 Third, as stated by the Court in a prior Order (Doc. 21), it is apparent from 

Plaintiff’s Motion for Conditional Certification and to Authorize Notice to Putative Class 

Members (Doc. 16), Defendant’s Response (Doc. 19), and Plaintiff’s Reply (Doc. 31), 

that Plaintiff’s status as an employee or independent contractor of the Club is unsettled. 

Accordingly, it was incumbent upon the Court to order briefing on the issue prior to 

considering Plaintiff’s motion for conditional class certification.

 The Court now turns to the issue of whether Plaintiff and her putative class are 

employees within the meaning of FLSA under the economic realities test set forth in 

Real. 

 Factor 1: The degree of the alleged employer’s right to control the manner in 

which the work is to be performed 

 The first factor of the economic realities test is the “degree of the alleged 

employer’s right to control the manner in which the work is to be performed.” Real, 603 

F.2d at 754. An example of a club exerting significant control over dancers includes a 

Club requiring dancers: to follow “Entertainer Rules” regulating appearance and 

behavior, and terminating dancers for violations thereof; to pay escalating house fees 

based on time of arrival; to sign in for shifts; to follow procedures for stage rotations; and 

to charge minimum fees as set by the club. Shaw, 2017 WL 1380774, at *4. Another 

example includes a club requiring dancers: to consent to random drug testing; to check-in 

upon arrival; to pay a house fee based on arrival time; to work at least three shifts per 

week; to attend annual parties and other mandatory meetings; to not leave the Club once 

they have arrived; to pay tip-outs and to submit to breathalyzer tests prior to leaving; and 

to perform stage dances when called upon to do so by the DJ, pursuant to a rotation 

system controlled by the DJ. Hanson, 167 F.Supp. 3d at 1329-1330. A third example 

includes a club requiring dancers to complete shifts and pay fines for leaving early, and 
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subjecting dancers to behavioral rules, including rules prohibiting drugs and alcohol and 

restricting attendance of significant others. Foster, 2015 WL 8489998, at *4. A final 

example includes a club where dancers choose when they will work based upon 

availability set by the club; where dancers are required to work a certain amount of days 

each month; where dancers are required to notify the club in advance of their preferred 

work schedules; where dancers are required to check-in upon arriving for their shifts; 

where dancers are required to enter the club through a certain entrance; where dancers are 

assessed fines for late appearances and early departures; and where dancers’ physical 

appearance and conduct is regulated by instructions set by the club. Verma, 2014 WL 

2957453, at *5-*6. 

 Plaintiff argues that Defendants exert control over the dancers by setting up and 

controlling the physical space where the dancers perform, which includes specifying 

certain areas for different dances (stage dances, private “lap” or “couch” dances, VIP 

dances, and VIP booth dances); controlling and monitoring access to the VIP area and 

keeping track of the duration of VIP performances; and setting up a rotation for all 

dancers who appear on the stages. (Doc. 41 at 5-6, citing Doc. 41-1 Exhibit A.) 

 Defendants argue that they exert minimal control over the dancers. In support, 

they state that: the Club maintains no schedule for dancers, rather, dancers are free to 

appear or not appear at the Club whenever and for however long they desire; the Club 

does not impose rules on dancers as to how to dance or interact with patrons, rather, the 

only rules imposed are those imposed by the City of Phoenix; the Club has no internal set 

of rules or standards for dancers, and there is no evidence in the record that any dancer 

was ever disciplined or fined for non-compliance with any Club internal rules; the Club 

does not control or monitor what dancers receive in gratuities or report this information to 

taxing authorities; and the Club does not dictate how much a dancer may charge a patron 

for a dance except in the VIP area. (Doc. 46 at 4-8, citing Doc. 47 Exhibits.) 

 In addition, Defendants state that dancers are free to leave the premises and take a 

break at any time without having to provide an excuse or reason for doing so; dancers are 
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free to dance at other establishments, which many do or did; dancers are free to take long 

hiatuses from appearing at the Club, and Plaintiff testified that she went weeks and 

sometimes months in between appearances at Le Girls; dancers choose which side of the 

Club they will appear (topless side or fully nude), and Plaintiff testified that she appeared 

on both sides of the Club; and dancers receive no wages from Defendants and never have 

in the decades the establishment has been in operation. (Id.) Defendants also state that 

dancers are free to use, or refrain from using, any of the Club’s areas for whatever 

purpose she chooses – whether it be to dance or to interact with patrons without 

performing. (Id.) Defendants further argue that dancers are free to decide where in the 

Club they will perform, and cites Plaintiff Toliver’s testimony, wherein she stated that 

she preferred not to use the VIP areas because she could then collect directly from 

patrons, as opposed to having to go through the Club for collection of a VIP fee, even 

though she could earn more per dance in the VIP areas. (Id.) Finally, Defendants state 

that dancers are not obligated to participate in the main stage rotation, and that the 

purpose of the rotation is to allow equal time for all performers who wish to appear on 

the mainstage. (Id.) 

 On this record, the Court finds that the dancers at Le Girls have overwhelming 

autonomy, and that the Club exerts minimal control over them. Accordingly, the Court 

finds that this factor weighs heavily in favor of a finding that Plaintiff is an independent 

contractor rather than an employee. The Court adds that this factor is entitled to 

significant weight in the overall analysis and causes subsequent factors to have an 

inconsequential impact on the overall analysis, or to carry only minimal weight. 

 Factor 2: The alleged employee’s opportunity for profit or loss depending upon 

his managerial skill 

The second factor of the economic realities test is “the alleged employee’s 

opportunity for profit or loss depending upon his managerial skill.” Real, 603 F.2d at 754. 

Most courts have ruled in favor of dancers on this factor, finding that the clubs’ 

investments, and returns on those investments, outweighed the relatively minor 
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investments and returns of their dancers. See Hart, 967 F.Supp.2d at 919-20 (finding that 

dancers had little opportunity for profit or loss despite setting their own schedules and 

cultivating relationships with clients as to encourage them to visit more often and tip 

more, compared to the club’s opportunity for profit or loss based upon its ability to set 

business hours, choose the club’s location, determining its aesthetics and decor, paying 

wages to other staffers, and purchasing the bar and kitchen supplies); see also Verma, 

2014 WL 2957453, at *7; Foster, 2015 WL 8489998, at *4; McFeely, 47 F.Supp.3d at 

270; Lester, 2016 WL 1588654, at *6. 

Plaintiff argues that the dancers have “no opportunity for profit depending on 

managerial skill, and no opportunity for loss whatsoever (other than the fees paid to the 

Club).” (Doc. 41 at 6.) In support, Plaintiffs state that dancers have no control over 

determining the physical location of the club and are not responsible for paying any 

facility expenses relating to the operation of the Club; Defendants maintain exclusive 

control over major determinants of customer volume, such as marketing, advertising, 

business hours, facility maintenance, aesthetics, beverage inventory, and setting of cover 

charge; Defendants hired, supervised, and paid all managers, hosts, bartenders, 

waitresses, and other employees necessary to operate the Club; dancers do not control the 

prices that the Club “recommends” to customers for private or VIP dancers; patrons 

cannot pay dancers by credit card for private “lap” dances; patrons cannot use credit 

cards to pay dancers additional amounts for VIP dances; and any credit card “tip” for VIP 

dances goes to VIP host or manager. (Id. at 6-7, citing Doc. 41-1 Exhibits.) 

 Defendants counter that the dancers have a significant opportunity for profit or 

loss. In support, Defendants argue that dancers are free to determine how much they will 

accept from patrons for performing, and free to determine when, how, and where they 

will perform. (Doc. 46 at 8-10.) Defendants also dispute Plaintiff’s statement that patrons 

cannot use credit cards to pay dancers in the VIP areas, arguing that customers are free to 

obtain a cash advance on their credit cards to pay a cash tip to the dancer. (Id. at 9.) 

Defendants also argue that the dancers “are free to reach any arrangement they may want 
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with patrons both in the VIP areas of the Club and elsewhere on the premises.” (Id.) 

Defendants also emphasize that dancers are free to appear at other venues, and that 

dancers can maintain a list of regular customers in order to maximize her profit. In other 

words, how dancers choose to manage their time and cultivate regular clients will 

determine their opportunity for profit and loss at Le Girls. (Id. at 10.) 

 The evidence is clear that Defendants bore the greater opportunity for profits and 

losses since they have a greater role than the dancers do in drawing customers to Le 

Girls: Defendants chose the location of the Club, set its business hours, maintain the 

facility, oversee its aesthetics, manage the Club’s marketing and advertising, and control 

the Club’s food and beverage inventory. (Doc. 41-1 at 5-8.) Given the autonomy of the 

dancers (as described under the “control” factor analysis), however, it is unsurprising that 

this is the case. Therefore, the Court finds that this factor is inconsequential to the overall 

analysis. 

 Factor 3: The alleged employee’s investment in equipment or materials required 

for his task, or his employment of helpers 

 The third factor of the economic realities test is “the alleged employee’s 

investment in equipment or materials required for his task, or his employment of 

helpers.” Real, 603 F.2d at 754. In analyzing this factor, courts look to the capital 

investments made in the club by the respective dancers and club owners. McFeeley, 47 

F.Supp.3d at 217. In cases such as the one at bar, courts have concluded that a dancer’s 

investment is minor compared to the club’s investment. See Reich v. Circle C 

Investments, Inc., 998 F.2d 324, 324-28 (5th Cir. 1993); McFeeley, 47 F.Supp.3d at 271; 

Clincy v. Galardi South Enterprises, Inc., 808 F. Supp. 2d 1326, 1347 (N.D. Ga. 2011). 

In support of her argument that dancers’ investment is “miniscule” compared to 

Defendants’ capital investment in the club, Plaintiff cites the fact that dancers are only 

required to cover the cost of their makeup and clothing. (Doc. 41 at 7; citing Doc. 41-1 at 

15.) Plaintiff then states that courts in similar cases have found that this factor favors a 

finding that exotic dancers are employees. (Doc. 41 at 7, citing Reich, 998 F.2d at 324-
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28; McFeeley, 47 F.Supp.3d at 271.) 

 In response, Defendants state that the club generates approximately $1.5 million 

annually, but Plaintiffs have not provided any record as to the amount of their investment 

in their performance activities at Le Girls. (Doc. 46 at 10.) Defendants also argue that 

given the flexible arrangement between dancers and Le Girls, “framing a comparison of 

relative investments between the Club and dancers is irrelevant and inapposite.” (Id.) The 

Court agrees. If Defendants have no meaningful control over their dancers, it is not 

surprising that the dancers would not invest heavily in the establishment. Therefore, the 

Court finds that this factor is inconsequential to the overall analysis.

Factor 4: Whether the service rendered requires a special skill 

 The fourth factor of the economic realities test is whether the service rendered 

requires a special skill. Real, 603 F.2d at 754. “Other courts have held that there is no 

special skill required to become an exotic dancer, pointing to the lack of instruction, 

certification, and prior experience required to become an exotic dancer.” McFeeley, 47 

F.Supp.3d at 272 (further citations omitted). 

 In support of her argument that exotic dancing requires no special skill, Plaintiff 

cites two cases where courts have made such a finding: Butler v. PP&G, Inc., No. CV-13-

430, 2013 WL 5964476, at *5 (D. Md. Nov. 7, 2013), and Stevenson v. Great American 

Dream, Inc., No. CV 1:12-3359, 2013 WL 6880921, at *5 (N.D. Ga. Dec. 31, 2013). 

(Doc. 41 at 7.) Plaintiff also cites the fact that Le Girls does not require its dancers to 

have any formal dance training or certification. (Id. at 7, citing Doc. 41-1 at 12-14.)

Defendants counter that it is an “undeniable skill set” for a dancer to excel at 

performing and interacting well with patrons. (Doc. 46 at 11.) Defendant urges this Court 

to depart from other courts which have dismissed exotic dancing as requiring little to no 

specialized skill. (Id.) Defendant also offers the creative argument that plumbers, 

handymen, and standup comedians may not have special training but could be deemed to 

possess “special skills.” (Id.) 

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than Defendants’ own opinion, there is no evidence to show that exotic dancing requires 

a special skill. Defendant also fails to cite to any controlling or persuasive authority in 

support of his argument that exotic dancing is an “undeniable skill set.” The Court also 

rejects the notion that performing and interacting well with patrons is a special skill. (See 

Lester, 2016 WL 1588654, at *5 (noting that every court to consider a “hustling” 

argument by a strip-club proprietor has rejected it).) 

 On the other hand, there is evidence showing that exotic dancing does not require 

a special skill. Defendants do not require that their dancers have any formal training or 

dance certifications, or provide references. (Doc. 41-1 at 14.) Defendants admit that 

dancers are free to dance how they choose, so long as they comply with the City of 

Phoenix’s rules and regulations. (Doc. 46 at 11.) Joshua Thornton also testified that all 

that is required of a woman with no prior experience to try out to be an exotic dancer is 

that she do a “trial run.” (Doc. 41-1 at 13.) 

 For these reasons, the Court finds that there is a minimal degree of skill required to 

be an exotic dancer at Le Girls. Thus, this factor weighs in favor of employee status. 

Factor 5: The degree of permanence of the working relationship 

 The fifth factor of the economic realities test is the degree of permanence of the 

working relationship. Real, 603 F.2d at 754. “Generally, a long, exclusive relationship 

weighs in favor of finding that the individual is an employee.” Lester, 2016 WL 1588654, 

at *5 (further citation omitted). However, since exotic dancers tend to be itinerant, many 

courts that have addressed whether dancers are employees have accorded this factor only 

modest weight. Id.

 Plaintiff argues that even if Le Girls and its dancers could terminate their 

relationship at any time, and even if it is unknown how long dancers tended to remain at 

Le Girls, that this factor is entitled to only modest weight. (Doc. 41 at 8, citing cases.) 

 Defendant argues when dancers perform at multiple clubs, this factor weighs in 

favor of independent contractor status. (Doc. 46 at 12, citing Clincy v. Galardi South 

Enterprises, Inc., 808 F. Supp. 2d 1236 (N.D. Ga. 2011).) Defendant points to Plaintiff 
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Tijerno’s testimony, in which she stated that she appeared at over a dozen clubs across 

multiple states during her performing career. (Id., citing Doc. 47-1 at 39-56.) 

 The Court finds that these facts weigh in favor of independent contractor status. 

Per the License Agreement, dancers are “free to perform at any other adult entertainment 

venue” while performing at Le Girls. (Doc. 47-1 at 5.) Plaintiff Tijerno testified that she 

performed at Le Girls and other clubs over the same period of time (Id. at 19-27), and 

Plaintiff Toliver likewise testified that she appeared at more than one club at a time (Id. at 

60). The License Agreement also permits a dancer to go up to twelve months without 

appearing at Le Girls, and states that the relationship between a dancer and Le Girls can 

be terminated at any time. (Id. at 2.) For these reasons, the Court finds that this factor 

weighs in favor of independent contractor status. 

 Factor 6: Whether the service rendered is an integral part of the alleged 

employer’s business 

The sixth factor of the economic realities test is whether the service rendered is an 

integral part of the alleged employer’s business. Real, 603 F.2d at 754. 

 Plaintiff argues that exotic dancing is an integral part of Le Girls, as the name of 

the Club reflects this reality, and Defendants’ website markets itself as a venue where 

patrons can enjoy “sexy” topless and nude female dancers. (Doc. 41 at 8-9, citing Le 

Girls’ website.) Plaintiff also cites a number of cases in support of the proposition that 

courts have “emphatically rejected the notion that exotic dancers are anything less than 

integral to a strip club.” (Id., citing cases.) 

 Defendants admit that dancers are relevant to its operations, but also argue that 

musical performances are also relevant to its operations. (Doc. 46 at 12.) 

 The Court finds that exotic dancing is, undoubtedly, an integral part of Le Girls. 

This factor thus weighs in favor of employee status. 

 Consideration of all factors 

 To summarize, weighing in favor of independent contractor status is the fact that 

Defendants exercise virtually no control over the manner in which the dancers’ work is 
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performed, and the fact that there is a lack of permanence of the working relationship 

between Defendants and the dancers. The absence of meaningful control carries 

substantial weight under the Real test, and decreases the weight accorded to all other

factors. (See supra, page 8.) 

 Weighing in favor of employee status is the fact that the service rendered by the 

dancers does not require a special skill, and the fact that the service rendered is an 

integral part of Defendants’ business. 

 The facts having no impact on the overall analysis include the dancers’

opportunity for profit or loss depending upon their managerial skill and the dancers’

investment in equipment or materials required for their task, or their employment of 

helpers. 

 Accordingly, the Court finds that, on balance, the factors weigh in favor of 

independent contractor status.

IV. CONCLUSION

Although Plaintiff urges this Court to find an employee/employer relationship on 

the basis that so many other courts have found so in cases involving exotic dancers and 

the clubs where they perform, Plaintiff’s reliance on these cases is misplaced; the facts of 

the instant case are materially distinguishable from the facts of these other cases. Most 

significant is the fact that in this case, Defendants exert virtually no control over their 

dancers, as discussed under the first Real factor. 

 The Court thus finds that the service rendered by Plaintiff at Le Girls is that of an 

independent contractor. Having concluded that Plaintiff is not an employee of Le Girls 

for purposes of the FLSA, the Court need not consider her Renewed Motion for 

Conditional Certification and to Authorize Notice to Putative Class Members. (Doc. 40.) 

Accordingly,

IT IS HEREBY ORDERED denying Plaintiff’s Renewed Motion for 

Conditional Certification and to Authorize Notice to Putative Class Members. (Doc. 40.) 

IT IS FURTHER ORDERED requiring that Plaintiff show cause by Friday, 
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July 14, 2017, why this case should not be dismissed with prejudice for lack of subject 

matter jurisdiction. Defendant shall respond to Plaintiff’s show cause brief by Friday,

July 28, 2017. There shall be no reply. 

Dated this 21st day of June, 2017. 

Honorable Stephen M. McNamee

Senior United States District Judge