Court rules in favor of two former Brass Pole dancers

Two exotic dancers at the Brass Pole in Carlisle Township must be paid as employees and not independent contractors, according to the 6th Circuit Court of Appeals. The former employees, Jaime Gilbo and Alyssa Smith, sued Agment LLC and its owner, Harley Rowe, for violations of the Fair Labor Standards Act's minimum wage and overtime provisions. According to the court documents, other employees at Brass Pole are paid wages, such as managers, bouncers, bartenders, a "door girl," a "house mom" and a DJ. But Brass Pole said exotic dancers are independent contractors, meaning they only receive tips from customers, a portion of which must be paid back to Brass Pole. Gilbo and Smith argued that they were covered by the Fair Labor Standards Act, so therefore they are employees and not independent contractors. They filed for a summary judgment, which means they did not go to trial, and the court granted it before trial. Agment and Rowe appealed that decision, but the district court affirmed the summary judgment. In 2016, two former dancers sued Brass Pole on this same issue, and court ruled that the dancers should be considered employees. However, that ruling was limited to the two dancers and Brass Pole did not change its practice of classifying its dancers as independent contractors. In April 2019, Gilbo and Smith sued on the same grounds. Gilbo was awarded $17,744 and Smith was awarded $17,191 for minimum-wage violations. Judge James Gwin said in the summary judgment that exotic dancers provide services that are integral to the business. The judgment noted that while the Brass Pole calls itself a bar and grill, it has no kitchen and instead "sometimes serves precooked microwavable burgers, Hot Pockets and pizza from Sam's Club." Brass Pole could not function without the services of the dancers. Kevin McDermott, the lawyer for Gilbo and Smith, said he thinks the 6th Circuit "got it right" and affirmed decisions already made in federal court. "The club was simply not exempt from paying minimum wages to the dancers, notwithstanding the independent contractor misclassification scheme designed to circumvent long-established minimum wage law," he said. Stephen Hanudel, representing Rowe, said the judgment was disappointing. A summary judgment meant no trial, and Hanudel said Rowe wanted to have his day in court. When Rowe was sued in 2016, Hanudel said Rowe made a good faith effort to make changes at his business. "We will still look for other avenues," Hanudel said. "Disappointed probably sums it up. I get the position that strip clubs and strip club owners won't be viewed sympathetically in the courts and I think that's nationwide in courts. He felt he made a good faith effort to make the changes he had to make and he still got sued and he felt frustrated." The court also ruled that although Brass Pole argued that dancers must pay some of the tips to the owner, Gwin said "the value of a few 20s passed to the owner pales in comparison to the substantial amount of money it costs to operate Brass Pole." The degree of control that Rowe had over his employees also factored into the judgment. According to the summary judgment, "Brass Pole exercises substantial control over its dancers." They use sign-in sheets to record information about dancers for every shift, and the exotic dancers had to work at least six-hour shifts, work weekday shifts in order to work weekend shifts and must receive permission from a manager to leave early. Brass Pole also enforces a dress code, controls the rates for its dancers and kept a portion of all their tips, according to the decision. Contact Laina Yost at 329-7121 or lyost@chroniclet.com.