Consequences for The City’s strip clubs – by l_waxmann, Michael Toren – January 2, 2019 – The San Francisco Examiner
As some 30 dancers were handed the first employee paychecks ever issued to them by the Penthouse Club one evening in early November, a wave of panic swept the popular North Beach strip club.
“I opened mine in the locker room, and I was shocked,” said a former Penthouse dancer who asked to be identified as Jane. “All the other girls were also freaking out. Me and my friends decided right then that we were done. That was the final straw.”
Historically classified as independent contractors, the dancers were used to walking out of the club’s doors with cash each night — often hundreds of dollars — after their shifts ended. That changed suddenly when clubs across The City began enforcing a California Supreme Court ruling from April in an unrelated industry that set new standards for determining whether or not workers should be classified as employees.
The decision has shaken up the gig economy but is also having an effect in unexpected places, such as in the hair salons and the adult entertainment industry, where workers have traditionally not been considered employees.
At local clubs, the move to convert dancers to employee status is causing an exodus, with many of them leaving San Francisco establishments.
“This whole business will be completely ruined. The whole point about being a stripper is you go in, get fast cash, no one knows how you’re getting it, it’s not documented and it’s not taken from you,” said a single mother who gave her name as Darla, who also recently cut ties with Penthouse Club. Like other dancers The San Francisco Examiner spoke with for this story, she asked to maintain anonymity for fear of retaliation.
Club owners say the changes are costing them as well.
A sign posted mid-October in the dancers’ dressing room at the Gold Club in the South of Market neighborhood said the club “felt that it was protecting your right and freedom to be an independent contractor.”
“However, as a result of the lawsuits and ongoing demands by the suing dancers and their attorneys, the club is now being compelled by Court order to eliminate the independent contractor option and require all dancers to become the club’s employees,” the sign read.
Axel Sang, marketing director of BSC, confirmed in an email to the Examiner that the dancers were formerly contractors but are now “club employees being paid an hourly wage and commission on dance sales.”
“The BSC-managed clubs now have matching payroll taxes, unemployment compensation, workman’s compensation, Healthy San Francisco costs, Affordable Care Insurance costs, and SF sick leave pay for several hundred new employee entertainers in addition to the hourly wage,” he wrote.
He estimated that 200 dancers have quit their jobs since the change came down at BSC clubs, including Penthouse and Gold Club and said that the change has “dramatically affected the business and the profitability,” costing the clubs “several million dollars” a year.
“A substantial reduction in the number of entertainers performing as well as the substantially increased payroll and other costs make it very difficult to generate profits,” Sang said.
The California Supreme Court decision pushing the changes in the business came out of a lawsuit brought by two drivers for Dynamex, a same-day delivery, and logistics company that converted its drivers to independent contractors in 2004. Under the ruling, workers may now be considered employees if they perform work within the usual course of the company’s business, said David Peer, a labor attorney in Carlsbad who has written about the Dynamex ruling.
“If you are running a strip club, you would think that the dancers are performing work within the usual course,” Peer said. “If the club owners want to play it safe, they should certainly be paying minimum wage and following the wage and hour rules that most organizations follow when they hire an employee.”
Lawsuits alleging improper classification of exotic dancers predate the Dynamex ruling, according to Harold Lichten of Lichten & Liss-Riordan, a Boston law firm representing Uber drivers who claim the rideshare company misclassified them.
“When you improperly characterize someone as an independent contractor you don’t have to pay social security tax, unemployment tax, minimum wage or overtime,” Lichten said, adding that the incentives were “incredibly great” for companies to “misclassify people because they were saving so much money at the workers’ expense.”
Lichten said the Dynamex ruling became leverage in ongoing litigation against Uber and noted that it should also come as a benefit to the dancers, who now are now eligible for the protections afforded to all employees.
“The concern is that some companies may lower the amount they pay them to make up their losses,” Lichten said. “That would be unfortunate. But on balance, it’s much better to be an employee because you have legal protections.”
However, the dancers interviewed by the Examiner said that while they are now entitled to minimum wage, benefits and the option to unionize, the reclassification has done more harm than good.
“Not one of those girls had a check for two weeks over $300. There was a lot of upset. A lot of girls packed up to leave that night. I was one of those girls,” Darla said.
“I can go work at McDonald’s for $15 an hour, and not take off my clothes, and not put up with the crap I put up with as a dancer,” Darla added, noting that all of the Penthouse dancers “have considered leaving.”
The vast majority of the strip clubs in San Francisco — 10 out of 12 — are owned or managed by BSC Management. The only exceptions are the Mitchell Brothers O’Farrell Theatre and The Crazy Horse.
Sang said the company is not paying dancers more than minimum wage because they “are paid commissions on dance sales which in most cases far exceed the hourly wage.”
But dancers said the commission structure for private dances has also been significantly cut.
Policies can vary for each club, but before the reclassification, dancers said if they arrived to their shift early enough they would keep 75 percent of their dance sales — which is where they made the majority of their money.
A dancer at the Gold Club, who asked to be called Mary, said it had been common for dancers on average to sell around $1,000 in dances a shift and keep $750.
Under the new commission structure at the Gold Club, however, dancers said they keep none of the first $150 they sell in private dances, 40 percent of the next $250 they sell, and 60 percent of sales beyond that.
Some dancers said they must also pay a $100 fee for renting the private room.
Dancers at the Gold Club said they now walk away with only $60 on the first half-hour private dance they sell.
“When I make a customer pay $400 and I see $60 of it, it isn’t computing for me,” Mary said. “We want to do our job, and previously our business was to sell dances. And we still need to make living. But at the same time, where is the incentive?”
Some dancers also feared being classified as employees would mean not being able to pick and choose which customers to serve.
Joe Carouba, an owner of BSC, declined to speak with the Examiner for this story because of pending litigation. But in a deposition he gave in October in connection with a lawsuit filed by Olivia Doe, he said he “firmly believed” dancers should be independent contractors so they can assert more control over which customers they will and won’t serve.
“I think they should control their own sexuality, they should control their own bodies,” he said. “The difference there being, of course, if you’re an employee, you don’t have a choice who you perform for, as an independent contractor you get to choose how you perform, whom you perform for, and what level you’re comfortable at.”
Dancers said many of them were poorly informed and caught unaware when the new contracts were rolled out.
Jane said she was one of the first Penthouse dancers to sign the new contract amid confusion and wasn’t given a copy or time to review it.
At the Gold Club, Mary said management called dancers into the office in the middle of their shifts, still dressed in bikinis and eight-inch heels, and told them to look at a new contract on a computer screen and immediately sign it. Some dancers had been drinking during their shift, she said.
“We were given no opportunity to look at the contracts or have paper copies beforehand,” Mary said. “There’s really been no communication, no transparency.”
Sang denied the allegations and said cameras were installed to protect the clubs from legal challenges over the new contracts.
“Signs were posted clearly that the areas were under video and audio surveillance. Each contract signing on video and audio clearly shows each entertainer was required to fully read the contract before signing,” Sang wrote in an email. “On camera, each entertainer was clearly given a copy of the contracts that they signed.”
Dancers said morale has plummeted at clubs across The City. Many are unhappy with how management announced and rolled out the change but fear losing their jobs if they complain.
Because BSC has a virtual monopoly on San Francisco strip clubs, dancers said if they are blacklisted at one club, they are afraid they won’t be able to work anywhere else in The City.
While dancers across the country have sued clubs saying they should have been classified as employees instead of independent contractors, those who spoke with the Examiner said not everyone wants to be an employee. There are advantages to being independent contractors — so long as they are actually treated as contractors.
Mary said being treated as a contractor would mean being able to negotiate dance fees with clients directly rather than have the club set prices and to pick which dates and times to work. Previously, as contractors, dancers could pick which days to work, but not which hours.
“Contractors should have autonomy,” she said.
An often-touted perk of being an employee is access to benefits, such as health insurance. But to qualify, employees must work enough hours to be considered full-time — which isn’t practical for most people dancing at a strip club. Dancers said even working three days a week is physically exhausting.
“You do what you need to do to maintain your boundary while making sure they have a good time. It takes a lot of emotional labor to do that,” Mary said. “I don’t think people realize that’s the most difficult part of our job. It’s not really talked about in the public perception of stripping.”
The drastic pay cuts and availability of cheap flights have pushed some dancers to seek work outside of San Francisco, traveling as far as Las Vegas and Reno one or two nights a week while continuing to live in The City.
“Girls are scrambling to find a job to fit their lifestyle or even make ends meet,” Jane said.