Thursday, February 14, 2013

Kansas Supreme Court Says Exotic Dancers are Employees, Not Independent Contractors (For Unemployment Insurance Purposes)

The Kansas Supreme Court has held that exotic dancers were employees, not independent contractors, for purposes of unemployment insurance, in Milano’s v. Kansas Department of Labor.  In reaching its decision, the Court based its ruling upon the common-law definition of employment under Kansas law, which focuses primarily upon the "right to control" the employer has over the employee and his or her work. The Court found that substantial evidence demonstrated that Milano’s had the right to control, rendering the dancers employees. Most telling, from the Court’s point of view, was the fact that Malino’s set various rules — specifically prohibiting illicit or illegal conduct and regulating interaction among the dancers and between dancers and customers, as well as enforcing minimum tips for various dancers. The dancers’ violations of those rules were punishable by fines and termination. This, the Court concluded, demonstrated a right to control.

This decision does not mean that EVERY exotic dancer in Kansas is an "employee" as the term is legally used but that in this case, using the "right to control" legal standard that Kansas uses in their analysis, these dancers were employees and not independent contractors as Milano's had labeled them. 

In Wisconsin, for unemployment insurance purposes, two provisions address independent contractors.  The first provision applies to all workers, with the exception of certain loggers and truckers and those working for nonprofit organizations or government units.  To be considered an independent contractor under this test, an individual performing services must meet at least 7 of the 10 conditions relating to that individual's direction or control over his or her own work.  That test is set forth in Wis. Stat. 108.02(12)(b).  The second test applies to those exempt in the first test:  those individuals working for nonprofit organizations or government units and certain loggers and truckers.  This test is set forth in Wis. Stat. sec. 108.02(12)(c). 

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