Exotic Dancer's Alliance, San Francisco, California

where a person performing work for another is subject to the orders, control, & direction of such other person (employer). [29 Cal Jur 3d (Rev)]

INDEPENDENT CONTRACTOR

Any person who renders service for a specified result, under the control of his principal as to the result of her work only and not as to the means by which such result is accomplished. [29 Cal Jur 3d (Rev)]

EMPLOYEE vs. INDEPENDENT CONTRACTOR

Independent contractors set their own hours; are not required to follow management enforced rules or regulations; are paid by the job not by the hour; don’t have a continuing relationship with management. Management’s success or continuation of business or profits shouldn’t depend on the service of independent contractors—if club owners rely on regular performers as a primary source of business, then the per- formers are not independent contractors.

THE IRS & CALIFORNIA LAWS DETERMINE IF A WORKER IS AN INDEPENDENT CONTRACTOR, NOT WRITTEN AGREEMENTS. WORKERS ARE EMPLOYEES, UNLESS MANAGEMENT CAN PROVE OTHERWISE.

Judges & government auditors assume that most workers are employees unless the hiring firm can prove otherwise. A written or oral agreement between you & the person who hired you is not proof of an independent contractor relationship. (Non-negotiable/contracts or “stage fee” receipts that you were forced to sign in order to work are reflective of an employee- employer relationship not an independent contractor situation).

INDEPENDENT CONTRACTOR STATUS HAS NOTHING TO DO WITH JOB TITLES OR TYPES OF WORK.

2 people can do exactly the same job: 1 can be a true independent contractor and the other can be an employee. (Right to control workers/workplace is what matters)

ONE MISTAKE AND INDEPENDENT CONTRACTORS CAN BE CONVERTED INTO EMPLOYEES

Independent contractor status isn't static. Any action by the hiring firm or its employees to control independent contractors can convert them into employees.

WHAT EVERY STRIPPER SHOULD KNOW

STAGE FEES

Labor Code 351 expressly forbids an employer to directly or indirectly claim any part of the employees tips. While the workers can be compelled to share tips with other employees, they cannot be forced to give tips to employers, nor can tips be credited against the minimum wage which the employer must pay.

TAXES

It is better to submit an amended return on unreported tips than to submit to blackmail initiated by management. A dancer with dependent children, earned income credit, health insurance credit and child care credit will probably pay little, if any, additional personal income tax. As to social security tax, if the dancer defines herself as an independent contractor, she could be liable for the entire 15.3% tax on self-employed income; however, if she is an employee, the employer must pay one half of the tax with the other half paid from employee wage withholdings.

WORKER'S COMPENSATION

Under the California Labor Code, employees must be covered by workers compensation which covers on the job injuries.

UNEMPLOYMENT AND DISABILITY INSURANCE

Under the California Unemployment Insurance Code, an employee may be entitled to unemployment and disability insurance.

LABOR UNIONS

The union is you and your coworkers organized together addressing workplace issues. Benefits of organizing may include: wage increases, benefit improvements, grievance procedures, protection against management favoritism when it comes to layoffs, promotions, assignments, discipline, etc.

LEGAL RESOURCES

California Employment Development Dept. (EDD)

administers unemployment benefits, disability benefits, and state income taxes, (415) 749-7599

California Workers' Compensation Appeals Board

CAL-OSHA

Department of Fair Employment and Housing

investigates complaints of sexual harassment and discrimination, (800) 884-1684.

Service Employees International Union Local 790 (SEIU)

State of California Labor Commission

administers minimum wage, overtime, etc., 455 Golden Gate Avenue, (415) 703-4863

EEOC (Equal Employment Opportunity Commission)

To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call (800) 669-4000. EEOC website: www.eeoc.gov

DFEH (California Department of Fair Employment and Housing): To file a complaint with the DFEH, call the Communication Center at (800) 884-1684 to make an appointment. DFEH website: www.dfeh.ca.gov

PROPOSED RECOMMENDATIONS FOR THE OPERATION OF ADULT ENTERTAINMENT THEATERS

In the Spring of 1998, Exotic Dancers Alliance introduced specific policy recommendations regarding the operation of adult entertainment theaters in San Francisco to members of the Mayor’s Office, Board of Supervisors, Commission on the Status of Women, Human Rights Commission, and local community organizations. The recommendations are intended to ensure that the adult entertainment venues provide a safe working environment for both employees and patrons and operate in accordance with the legal standards of all appropriate City and County, State and Federal agencies and guidelines.

Currently, adult entertainment theater owners are not required to pay annual licensing fees, and have little to no regulatory provisions within any City and/or State Departments or enforcement agencies. Existing and prospective businesses would be required to apply for an operating permit through the City of San Francisco and pay annual licensing fees as set by the City. Applicants must be in compliance with all applicable State and Federal labor laws, occupational health and safety regulations, workplace injury and illness guidelines, violence prevention policies, and disability access regulations in order to obtain or renew an operating permit. Permits may be denied or revoked if it is found, either through inspections or substantiated employee complaints, that the applicant is not in compliance with any of the above regulations; additional penalties and fines may also be issued, as required by the City.

The proposed recommendations would support regulatory efforts of adult entertainment theaters throughout San Francisco, improve labor and business practices of management, allow for increased access to health care and social services, prevent workplace violence by providing safety information to workers and assisting in filing formal complaints when abuse or violence occurs, and would prevent regulatory conflicts of interest. Furthermore, the implementation of specific regulations regarding fair labor practices and working conditions on behalf of exotic dancers would potentially reduce the current level of wage and hour claims and class action lawsuits against employers which not only place an unfair burden on employees, but waste the valuable resources of local and State taxpayers.

SEC. 1. DEFINITIONS. For the purpose of this Article, the following words and phrases shall have the meanings respectively ascribed to them by this Section:
(a) "Adult Entertainment Theater" means any establishment having a fixed place of business where any person, firm, association or corporation engages in or carries on or permits to be engaged in or carried on any of the activities mentioned in Section 1 (b) of this Article.
(b) "Exotic Dancer" means any person, who, for any consideration whatsoever, provides nude and/or topless stage performances, lap dances, peep shows, lingerie modeling and any other nude or sexually explicit live performances for Adult Entertainment Theater patrons in accordance with the provisions of this Article and all applicable local, State, and Federal laws.
(c) "Permittee" means the owner, proprietor, manager or operator of an Adult
Entertainment Theater.
(d) "Person" means any individual, co-partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character.
(e) "Employee" means any and all persons, other than the exotic dancers, who render any service to the permittee, who receive compensation directly from the permittee, and who have no physical contact with the customers and clients.

SEC. 2. PERMIT REQUIRED FOR AN ADULT ENTERTAINMENT THEATER. It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City and County of San Francisco, the operation of an Adult Entertainment Theater as herein defined, without first having obtained a permit.

SEC. 3. APPLICATION FOR ADULT ENTERTAINMENT THEATER PERMIT
(a) Every applicant for an Adult Entertainment Theater permit shall file an application with the City and County of San Francisco Tax Collector’s Office and pay an application fee, which shall not be refundable. The City and County of San Francisco shall set said fee at an amount necessary to cover the costs of processing the application.
(b) The application shall set forth, under penalty of perjury, the following:
(1) The exact nature of the services to be rendered;
(2) The address of the proposed place of business and facilities thereof;
(3) The number of individuals to be employed by the business;
(4) The name, address, and date of birth of each applicant;
(5) Any history of previous Adult Entertainment licenses in the State or elsewhere for each applicant;
(6) All felony convictions or misdemeanor sexual battery convictions for each applicant.
(c) The City and County of San Francisco is hereby authorized to require in the application any other information including, but not limited to, substantiated occupational health and safety and/or labor violations of existing or previously owned businesses for the past 10 years.

SEC. 4. OPERATING REQUIREMENTS FOR ADULT ENTERTAINMENT THEATER.
(a) Compliance with all State and Federal Labor laws and Occupational Health and Safety regulations; Workplace Injury and Illness guidelines; Violence Prevention policies; and Disability access regulations.
(b) Adult Entertainment Theaters may not build any new rooms, or expand or renovate existing ones, without obtaining appropriate permits. It must be possible for staff to view any activity occurring on the premesis, and to have direct access to all areas in the event of an emergency.
(c) Certified and trained security staff must be present at all times during hours of operation wherever live performances occur.
(d) Provision of a separate dressing room for Exotic Dancers and other Employees of a different gender must be available on the premises with individual lockers for each Employee.

SEC. 5. REFERRAL OF APPLICATION FOR ADULT ENTERTAINMENT THEATER TO OTHER DEPARTMENTS. The City and County of San Francisco, within 7 days of receiving an application for an Adult Entertainment Theater permit, shall refer the application to the State of California Division of Occupational Safety and Health, Division of Labor Standards and Enformcement/Labor Commission, and City Departments of Building Inspection, Public Health, and Fire. Said Departments shall inspect the premises proposed to be operated as an Adult Entertainment Theater and shall make written findings concerning compliance with the codes that they administer within 14 days.

SEC. 6. ISSUANCE OF ADULT ENTERTAINMENT THEATER PERMIT.
(a) The City and County of San Francisco shall issue an Adult Entertainment Theater permit within 14 days following a hearing if all requirements described in this Article for an Adult Entertainment Theater described in this Article are met unless it is found that the applicant has provided false documents or testimony, or the operation as proposed would not comply with all applicable laws, or any rule or regulation adopted within this Article.
(b) The City and County of San Francisco may refuse to issue any permit in any case where there is reasonable grounds to determine that the Adult Entertainment Theater premises will be or are being managed, conducted or maintained in such a manner as to endanger the health or safety of the employees or patrons thereof or to coerce any employee or patrons to engage in any illegal conduct.
(c) The City and County of San Francisco may issue an Adult Entertainment Theater permit to any individual convicted of a felony if it is found that the felony was not violent, the conviction occurred at least five years prior to the date of the application, and the applicant has had no subsequent felony convictions.

SEC. 7. REVOCATION OF ADULT ENTERTAINMENT THEATER PERMIT. (a) The City and County of San Francisco may revoke or suspend any Adult Entertainment Theater permit, after a hearing, if it is found that:
(a) The Permittee and/or their designee has violated any of the provisions of this
Article;

(b) Such business is being managed, conducted or maintained without regard for the public health of patrons, customers, or employees, or without due regard to proper sanitation and hygiene, occupational health and safety standards, and fair labor practices.

SEC. 8. INSPECTION. Authorized Departments may make an inspection of any Adult Entertainment Theater under normal circumstances, as they usually do, unless responding to a filed complaint.

SEC. 9. ADULT ENTERTAINMENT THEATER PERMIT FEE. Every Permittee shall
pay to the City and County of San Francisco an annual permit fee. The City and County of San Francisco shall set said license fee at an amount necessary to cover the costs of enforcement of the provisions of this Article related to Adult Entertainment Theater permits, including, but not limited to the costs of inspections.

SEC. 10. TRANSFER OF PERMIT. No permit shall be transferable except with the written
consent of the City and County of San Francisco. The City and County of San Francisco shall not give such consent unless the transferee meets all of the requirements of this Article.

SEC. 11. EMPLOYMENT OF EXOTIC DANCERS. (a) Adult Entertainment Theaters must
operate in accordance with all State, and Federal labor laws regarding employment status,
and shall post notices accordingly within the theaters.
(b) All Exotic Dancers are employees, and should be afforded hourly wages in
accordance with labor laws and minimum wage standards.
(c) Exotic Dancers will only be classified as independent contractors when they are hired for one week only during a six month period (i.e. feature performers); independent contractors will negotiate all terms of employment with theater management at arms length and will be compensated accordingly in compliance with State and Federal labor standards.
(d) Employers shall not charge Exotic Dancers “stage fees,” “late fees” or otherwise in order to work in the establishment.
(e) No commission/quota/piece rate systems shall be initiated by management wherein Exotic Dancers must share any percentage of their earned wages or tips with management.
(f) If the employer is illegally uninsured or has misclassified workers, the worker may file an unemployment claim with the Employment Development Department and the employer shall be responsible for all mandated retributions.
(g) All Employees must be covered by workers compensation per mandated employer contributions. If the employer is illegally uninsured or has misclassified workers, the injured worker may claim against the Uninsured Employers' Fund.
(h) Employer shall operate in accordance with State, and Federal civil rights laws forbidding sexual harassment, discrimination, and/or violence in the workplace.
(i) Employers may not retaliate against any worker who has filed a complaint to an enforcement and/or governing agency regarding working conditions or wage irregularities in accordance with State and Federal Labor Codes.
(j) All Exotic Dancers, as employees or independent contractors, shall have the right
to join or form trade unions or collective organizations and shall be legally recognized as such by management. Employers or Permittees will not retaliate against workers for organizing activities and will bargain in good faith during negotiation proceedings in accordance with City, State, and Federal labor laws. In addition, employers will not censor communication between workers (verbal and/or written) and/or will not retaliate against workers for any public activities during organizing efforts.
(k) Employers shall provide individual or group health insurance benefits to all full-time employees and comply with the Equal Benefits Ordinance.
(l) Employers must make complaint forms available to employees on-site at all times in addition to a complete listing of local, State and Federal enforcement agencies. Anonymous or confidential complaints may be filed by employees to report any violations of this Article. All City, State and/or Federal Departments must respond to all filed complaints and refer complaints to appropriate enforcement agencies and conduct necessary inspections within 7 working days, unless otherwise mandated or in the event of an emergency.

SEC. 12. RULES AND REGULATIONS. The City and County of San Francisco may, after a public hearing, make and enforce reasonable rules and regulations not in conflict with, but to carry out, the intent of this Article.

SEC. 13. VlOLATION AND PENALTY. (a) Any Person, except those Persons who are specifically exempted by this Article, who operates an Adult Entertainment Theater without first
paying the required fees and obtaining a permit, or who violates any provision of this Article may, after being provided notice and an opportunity to be heard, be subject to an administrative
fine not to exceed $1,000 for each violation, or immediate closure of the establishment.

LAWS 2 KNOW

LEGAL DEFINITIONS

EMPLOYEE