Exotic Dancers: Employees or Independent Contractors?

Kayla Moreland , May 13, 2015

It is well settled in workers’ compensation law, that independent contractors are not considered employees for workers’ compensation purposes. Thus, when a person is injured while working as an independent contractor, they are not covered under the hiring party’s workers’ compensation policy. However, it is not always clear whether a person is an independent contractor or an employee.

When determining whether a party is an employee or independent contractor, courts typically look to the purported employer’s right to control the claimant in performance of their work. Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009). In analyzing the nature of a work relationship, the Court examines four factors: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) method of payment; (4) right to fire. Shatto v. McLeod Reg’l Med. Ctr. 406 S.C. 470, 475-6, 753 S.E.2d 416, 419 (2013). The mere presence of one of these factors is not dispositive of the entire inquiry. Id.

In a recent case the South Carolina Supreme Court was faced with determining whether an exotic dancer, who was shot by an errant bullet while working at a night club, was an employee of the club or an independent contractor. Lews v. L.B. Dynastt et al. Appellate Case No. 2012-213376 (SC March 18, 2015). In this case the Court determined that because of the night club’s control and right to control the dancer, the furnishing of equipment (the Court did not consider the claimant’s body a major item of equipment in this analysis), and right to fire, the exotic dancer was considered an employee as opposed to an independent contractor. Id. The Court looked at this case by examining the totality of the circumstances of the particular facts of the case.

While the claimant in this case was determined to be an employee, that was largely based on the facts of the case. Thus, if a claimant wants to challenge their independent contractor status, they should seek legal counsel to better understand their rights within their particular state. To read more about the details and facts of the case, please visit:

http://www.sccourts.org/opinions/advSheets/no112015.pdf

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