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Employee Schedules Cut and Pasties

Posted by Barry Rubin on 5/9/2016 to Tips and Resources
Employee Schedules Cut and Pasties
The Dollhouse is the latest Florida exotic dance club to have a lawsuit filed against it for misclassification of employee status, failure to maintain recorded hours and state minimum wage violations, following Baby Dolls of Clearwater, Florida.  These types of issues are typically caught prior to employee litigation or US Department of Labor’s Wage and Hour Division investigation by the use of an electronic time clock system, or other time clock device.

The lawsuit alleges that the establishment classified the dancers as contractors and required them to pay support staff such as the DJ and members of security.  As contractors the dancers were paid no wages, and forced to use tips to meet state minimum wage requirements, which in Florida is $8.05 per hour.  However employers can pay a lower hourly minimum wage, as long as that wage plus the tips the employee earns equals at least the full minimum wage for each hour worked. This scenario would be the case if the dancers were classified correctly, which they were not, and if the club had used an employee time clock or at the very least, time cards, which they did not.

The dancers were generally subjected to scheduled work time, including when, where, and how to work.  That alone creates an employee relationship and subjects the employer to all Fair Labor Standards including tip credit provisions and FSLA Recordkeeping Requirements. The law states that every employer must keep certain records for each employee. The Act requires data recorded about the hours worked and the wages earned. 

Section 3(m) of the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage and the minimum wage. The U.S. Department of Labor's Wage and Hour Division is enforcing worker protection laws nationwide and is committed to ensuring workers are paid for all the hours they work. The only defense is the use of a time clock, time recording system, or similar time clock data capture device.