Are Male Strippers Exempt From the FLSA As Creative Professionals?

No – the U.S. District Court for the Northern District of Georgia recently rejected the argument that male strippers qualify as exempt “creative professionals” under the Fair Labor Standards Act (FLSA).

In Henderson v. 1400 Northside Drive, Inc., a group of male strippers sued an adult nightclub, which they alleged misclassified them as independent contractors and, as a result, failed to pay them the minimum wage required by the FLSA.  No. 1:13-CV-3767-TWT (N.D. Ga. June 19, 2015).  One of the defenses that the employer raised was that, even if the strippers were employees, they were exempt from the FLSA as creative professionals.  To qualify as a “creative professional,” an employee must be (i) compensated on a salary basis or fee basis at a rate of not less than $455 per week; and (ii) his or her primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.  29 C.F.R. § 541.300.

The Henderson court rejected the employer’s creative professional argument, finding that “little creativity is required to be a dancer at the Club.”  The court noted that the evidence showed that original dance moves were not a requirement for the job and that many of the strippers did not know how to dance.  The court further found that hiring decisions were based primarily on the applicants’ looks and that no special training was required.  As a result, the court determined that the strippers’ jobs did not require sufficient creativity to qualify as exempt creative professionals.

Takeaway:  The Henderson case is part of broad trend of wage and hour lawsuits in the adult entertainment industry.  Employers who operate adult nightclubs should ensure that they pay their dancers in accordance with the requirements of the FLSA.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on June 30, 2015, in Wage and Hour and tagged . Bookmark the permalink. Comments Off on Are Male Strippers Exempt From the FLSA As Creative Professionals?.

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