Torrey: Gig Workforce Members Via Analogy to Exotic Dancers

Monday, September 24, 2018 | 0

In a new article, the author, a law student, tries to predict how South Carolina courts would rule when a platform intermediary worker alleges, in some employment law context (like workers’ compensation), that he or she is an employee.

David B. Torrey

The author, Axton D. Crolley, undertakes this effort by examining the recent South Carolina precedents treating the employment status of exotic dancers in that state’s gentlemen’s clubs in "Strippers, Uber Driver, and Worker Status in South Carolina," 69 South Carolina Law Review 945 (Summer 2018).

The effort is not as cleverly provocative as it might seem. Those cases, one decided under the Workers’ Compensation Act, and the others under the Fair Labor Standard Act, all involved defendant arguments that the exotic dancer plaintiffs were independent contractors and not employees.

However intriguing the subject occupation, the cases are apparently the latest in the state to explore this essential dichotomy.

As for the workers’ compensation case, which animated many an industry listserv — and clucking of disapproving tongues — a couple years ago, see Lewis v. L.B. Dynasty (exotic dancer, severely injured by stray bullet in the midst of work, was employee, not independent contractor, of hiring club; this was so notwithstanding the fact that dancer undertook her performances at several unrelated clubs).        

Of note is the fact that South Carolina law is like that of most states, as control, or the right to control, forms the basis of the critical analysis. The author, indeed, reports that it was the courts’ consecutive discernments of sufficient control on the club’s part that yielded, in all three cases, the legal conclusion that employment on the part of the dancers existed.

The author feels constrained to predict that, given this analysis, a South Carolina court would consider workers like Uber drivers to be employees, not independent contractors. The author, seemingly sympathetic to his state‘s desire to create a “business friendly” environment, is dissatisfied with this prospect.

In his view, to limit the number of platform intermediary laborers from being deemed employees, South Carolina courts should emphasize, in the control analysis, the already existing sub-criterion of the worker’s “economic reality.” He suggests that when this constituent aspect of the South Carolina control analysis is emphasized, workers like Uber drivers are less likely to be found employees.

David B. Torrey is adjunct professor of law at the University of Pittsburgh School of Law and a workers’ compensation judge with the Pennsylvania Department of Labor & Industry. This entry is republished from the Workers' Compensation Law Professors blog, with permission.