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A district court conditionally certified a collective action by exotic dancers against their employer under the Fair Labor Standards Act (FLSA) for failure to pay minimum and overtime wages. The court also authorized the dancers to provide notice to other employees who may want to join the lawsuit.
Current and former employees of the Jaguar Gold Clubs (JGC) filed suit to recover unpaid minimum wages and overtime compensation under the FLSA. The employees, who worked as exotic dancers, claimed that JGC misclassified them as independent contractors to avoid the obligation to pay them minimum and overtime wages as required by the FLSA, failed to pay them such wages, failed to keep adequate records of their work hours and pay, and retaliated against them for filing the lawsuit.
JGC maintained that the dancers were not employees, but licensees, lessees, or independent contractors who performed at various company locations pursuant to a licensing and lease agreement called a temporary space lease agreement (TSL). According to JGC, the dancers collected a portion of mandatory dance fees and all of their tips and paid the company rent.
The dancers filed a motion for conditional certification of a collective action and for court-authorized notice to other dancers who may want to join the suit. Under the FLSA, an employee can file a suit on behalf of him or herself and other similarly situated employees for unpaid minimum wages, overtime compensation and liquidated damages, according to the trial court. This type of collective action follows an “opt-in” procedure in which no employee can become a party to the suit unless he or she files his or her written consent with the court. Courts have discretion to allow an employee asserting claims on behalf of others to notify other employees that they can “opt-in” to the suit.
To determine whether to certify the collective action, the trial court followed a two-stage approach that involved a “notice” stage and a “decertification” stage. According to the court, at the notice stage, a employee files a motion to authorize notice of the lawsuit to potential class members. The evidentiary standard at this stage is lenient, requiring “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan . . . .” If the motion is granted, the court will conditionally certify the class so that other employees are given notice and the opportunity to “opt-in” to the lawsuit. The action then proceeds as a representative action throughout discovery. Once discovery is complete, the case proceeds to the second stage of litigation, in which the court revisits the issue of certification, usually when the defendant files a motion to decertify the class.
Because the dancers provided evidence of the similarities in job duties and pay practices for exotic dancers at each of the JGC locations and testified that other dancers would join lawsuit, the court found they met their lenient burden of providing sufficient evidence that they are similarly situated to the intended notice recipients. The court granted the dancers’ motion to conditionally certify a collective action and to authorize notice.
The court approved the form and method that the dancers proposed to use to notify other employees of the lawsuit. In addition, the court ordered JGC to provide the dancers with a list of the names, last known mailing addresses, and email addresses of all exotic dancers who worked member clubs between Oct. 14, 2008 and the present.
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