In Lewis v. L.B. Dynasty, an appeal from the Supreme Court of South Carolina, claimant was working as an exotic dancer at a local strip club when a stray bullet hit her. According to court records, claimant was working as an exotic dancer five to seven nights a week at various clubs in North Carolina and South Carolina.
During the night of her injury, she was working at a South Carolina club. As per normal protocol, she arrived at the club, presented an ID to show she was old enough to be a performer, paid a tip-out fee of $70 based upon the time when her shift started, and got ready to perform. She performed dances on the main stage, table dances and VIP (private) dances. She danced on stage in an order determined by the club and did table dances and private dances when customers requested her to do so. She was required to give a portion of private dancing fees to club management. She was also required to read the club rules each day before performing.
Club rules did not require dancers to work any particular days, but club did set a dance schedule when dancers arrived prior to a shift. If dancers failed to dance on the stage when it was their turn, they could be fined and fired. Dancers could also be terminated for fighting or having sex at the club.
During the night of her injury, a fight broke out in the club, and a stray bullet hit her. The bullet entered her stomach and destroyed her kidney. She also has significant scarring as result of being shot at the club. She filed a claim for temporary total disability workers’ compensation benefits following her injury. At the hearing, her employer did not show up, but the state injury fund appeared and argued claimant was an independent contract, rather than an employee of the club.
As our Boston workers’ compensation attorneys can explain, independent contractors are not generally eligible for workers’ compensation benefits, so when there is a question as to claimant’s status, employers will typically try to defend the claim by saying victim was an independent contractor.
During the hearing, claimant argued she was an employee and she had earned $357 before being shot. She did not testify how much money she made working other Carolina strip clubs. A single commissioner determined claimant was an independent contractor not entitled to workers’ compensation; but, if she had been an employee, she would only be entitled to $75 per week as a result of her failure to establish her income at other clubs.
Claimant appealed this decision to the state’s intermediary court of appeals court, and that court found, in a split decision, she was an independent contractor not entitled to compensation. Therefore, court did not examine the issue of whether the hypothetical compensation of $75 was appropriate. At this point, claimant appealed to the state supreme court, and that court granted review.
On appeal, the state supreme court determined she was doing an artistic performance for legal purposes, and looked at the issue the amount of control club had over her performance. Supreme Court concluded club had a great deal of control over claimant. Club decided she should be topless, but not nude. Club could fine her for being late or leaving early. Club provided stage and all other equipment needed, and club set rates for table dances and VIP dances. For these reasons, supreme court concluded she was an employee and thus entitled to workers’ compensation.
If you are injured on the job in Boston, call the Law Offices of Jeffrey S. Glassman for a free and confidential consultation to discuss your workers’ compensation claim: 1-888-367-2900.
Lewis v. L.B. Dynasty, March 18, 2015, South Carolina Supreme Court
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